COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Senior Judge Annunziata Argued at Alexandria, Virginia

MARY C. SCHUMAN MEMORANDUM OPINION * BY v. Record Nos. 0631- 09-4, 1259-09-4 and J UDGE ROSEMARIE ANNUNZIATA 1260-09-4 APRIL 20, 2010 DANIEL C. SCHUMAN

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Gaylord L. Finch, Jr., Judge William B. Reichhardt (Colleen C. Sweeney; William B. Reichhardt & Associates, on briefs), for appellant. Scott A. Surovell (Jason E. Brau n; Surovell Markle Isaacs & Levy, PLC, on brief), for appellee.
Mary C. Schuman (wife) appeals the tria l court’s ruling incorp orating a premarital agreement into an order a nd its rulings in the subsequent equitabl e distribution hearing. Wife argues that the trial court erred by (1) incorporating th e parties’ premarital agre ement (the Agreement) pursuant to Code § 20-109.1 because the Agreement was not a valid co ntract and was a contract in contemplation of divorce under Virginia law; (2) applying the Agreement to the distribution of the parties’ property where the parties’ express intent was that it apply only upon their death and only upon proper evidence of each party’ s contribution to the property; (3 ) failing to properly classify and value property, to apply the bu rden of proof in the tracing of assets, and to co nsider all the factors in Code § 20-107.3; (4) determining the lease entered into by the parties was valid; and (5) ordering the transfer of the Sarasota condominium to hus band in contradiction to Code

* Pursuant to Code § 17.1-413, this op inion is not designa ted for publication.- 2 - of

o § 20-107.3 and the partie s’ Agreement. Daniel C. Schuman (husband) pres ents three issues cross-error: the trial court erred (1) in awarding wife a separate interest in the Arlington condominium; (2) in classifying ce rtain property as wife’s separate property; and (3) by failing t consider monies wife removed from husband’s bank account. We affirm the trial court’s decision in part, reverse in part, and rema nd this case to the trial court for further proceedings consistent with this opinion. BACKGROUND “When reviewing a trial court’s decision on a ppeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitt So viewed, the evidence showed that the parties met on June 26, 2003. At that time, wi lived in a home known as Fiddler’s Green with her son. She purchased the home in 1989 couple of months, husband moved in to Fiddler’s Green, an d the parties agreed to make renovation to the home. In September 2003, husband presente d wife with a premarital agreement, which wife refused to execute. On March 12 , 2004, husband purchased a con dominium in Sara sota, Florida, which was titled as ed). fe . Within a

s

a joint tenancy with the right of survivorship. In May 2004, husband presented wife with a lease permitti ng him to occup or forty year s. The parties signed the y Fi ddler’s Green f lease on May 16, 2004. The parties signed a premarital ag reement on June 23, 2004, after exchanging and rejecting severa l earlier drafts of the agreem ent. The executed Agreement reconfirmed the lease and, among other matters, di scussed the distribution of Fiddler’s Green and the Sarasota condominium. The parties married on June 26 , 2004. During the marriage, the parties made renovations to Fiddler’s Green and paid off the mortgage on the home. The parties had two jointly titled bank accounts; wife primarily used one account, and husband primarily used the other.- 3 - st

orce ’ intent
to asi ng its ruling on the “plain language of th e agreement”:
specifically provides that both partie s have agreed that the court of incorporate the agreement in any decree or judgment in the event

agreement were intended to apply not only in the event of the dissolved. The court then addressed wife’s argument that the Agreement’s te rms were too indefinite to be

The cou ambiguous,” nor did it ident upon which it relied that clarified their m On August 20, 2007, the partie s separated, and wife filed a co mplaint for divo rce on Augu 24, 2007. Prior to the entry of the final divor ce decree, husband soug ht to incorporate the Agreement into an order and apply it to the distribution of some of the parties’ property. Wife objected and argued that the Agreement’s ambiguity precluded its incorporation into the div decree. After initially concluding the Agreement was ambiguous with respect to the parties and taking evidence, including parol evidence, the trial court ultimately granted husband’s motion incorporate the Agreement, b In this case, the plain langua ge of the agreement on page 6 relevant jurisdiction shall be requested by both parties to of a divorce or separation acti on by either of the parties. By the language, it is clear to th e court that the terms of this deaths of the parties, but also in the event that the marriage was

enforceable. The trial court disagreed, noting: Having decided that threshold que stion, the next issue to be decided is whether the agreement is enforceable or unenforceable, because its terms are too indefinite or vague. This court does find that some of the terms are ambiguous. However, any ambiguity has been clarified by the evidence presented and the testimony of the parties. 1 rt did not state the basis of its fi nding that “some of the terms are ify the terms the court found ambi guous or the testimony

eaning.

1 The Agreement was incorporated into a separate order on October 17, 2008.- 4 - In Dece r-day equitable distribution he alid and enforceable. 2 It distributed the parties’ pro of Code § 20-107.3, except for Fidd These two real property assets were distribu

ANALYSIS

ation of the defaulted grounds first. Pursuant to Rule 5:18, we will not consi on appeal wife’s argument that the A mber 2008 and January 2009, the tria l court conducted a fou aring and agai n held that the Agreement was v perty in accordan ce with the equitable distribution principles ler’s Green and the Sarasota condo minium. ted pursuant to the terms of the Ag reement. Both parties filed motions for reconsideration, which the trial court denied. These appeals followed.

I. DID THE TRIAL COURT ERR BY INCORP ORATING THE AGREEMENT BECAUSE THE AGREEMENT WAS NOT A VALID AGREEMENT AND WAS ENTERED IN CONTEMPLATION OF DIVORCE? Wife argues the Agreement is not valid base d on three grounds: 1) it is ambiguous and therefore not enforceable, 2) it is unconscionabl e, and 3) it was entered in contempl divorce. Wife failed to preserve two of her three grounds. We address

d er greement is unconscionable because she di d not present it to the trial court. Ohree v. Commonwe alth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its

2 A different judge conducted the equitable distribution hearing and issued a letter opinion addressing the question: Although there were other provisions in which “divorce” was referenced, specifically one providi ng that the parties would pay their own attorney’s fees incurred in conjunction with a divorce, . . . the trial judge squarely based her decision that there was no ambiguity in the provisions requesting the agreement be incorporated.- 5 - attention.” Lee v. Lee , 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). Theref Rule 5A:18 prevents us from considering this argument. ore,

Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, appe llant does not argue that we should invoke these exceptions. See e.g. , Redman v. Commonwealth , 25 oneself of the exception, a defendant must affirmatively show that a have occurred.” (emphasis added)). We will not consider, sua Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail miscarriage of justice has occurr ed, not that a miscarriage might sponte , a “miscarriage of justice” argument under Rule 5A:18. Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ). Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. Pursuan that the Agreem presented to the trial court n t to Rules 5A:18 and 5A:20(e), we w ill not consider wife’s argument on appeal ent was entered in contemplatio n of divorce because it was neither or addressed on brief. Jay v. Commonwealth , 275 Va. 510, 520, e also 659 S.E.2d 311, 317 (2008). Se Klein v. Klein , 49 Va. App. 478, 482, 642 S.E.2d 313, 31 5-16 (2007). ding

ree. 3 ents, like marital property settle ments, are contracts subject to the rules of With respect to wife’s remaining ground, we fi nd that the trial court did not err in fin that the plain language of the Agreement required that it be incorporated into the divorce dec “Antenuptial agreem construction applicable to contracts generally, including the application of the plain meaning of unambiguous contractual terms.” Pysell v. Keck , 263 Va. 457, 460, 559 S.E.2d 677, 678 (2002) (citing Southerland v. Estate of Southerland , 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995)). See also Plunkett v. Plunkett , 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006).

3 The Agreement stated, “In the event of any di vorce or separation action by either of us, we both d.” agree that the court of relevant juri sdiction shall be requested by both of us to incorporate this Agreement in any decree or j udgment in any such action, but not merge- 6 - “Contract language is ambiguous when ‘it ma y be understood in more than one way or when it refers to two or more things at the same time.’” Eure v. Norfolk Shipbuilding & Drydock Corp. , 263 Va. 624, 632, 561 S.E.2d 663, 668 (2002) (quoting Granite State Ins. Co. v. Bottoms , 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992)). But, “if no patent or latent ambiguities exist, a court should enforce the plain meaning of the contractual langua ge without resor t to extrinsic evidence.” Smith v. Smith , 43 Va. App. 279, 287, 597 S.E.2d 250, 254 (2004) (citing Eure , 263 Va. at 632, 561 S.E.2d at 667; King v. King , 40 Va. App. 200, 206, 578 S.E.2d 806, 810 (2003)). Whether contract language is ambiguous is a question of law, not fact. Tuomala v. Regent Univ. , 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996). Th e trial court’s ruling is, thus, subject to de novo review. Eure , 263 Va. at 631, 561 S.E.2d at 667 (“we have an equal opportunity to consider the words of the contract within the four co rners of the instrument itself” (citing Wilson v. Holyfield , 227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984))). Under that review, no deference is accorded the tria l court’s conclusion regarding ambiguity. Plunkett , 271 Va. at 167, 624 S.E.2d at 41 (citing Tuomala , 252 Va. at 374, 477 S.E.2d at 505). In considering whether the Agreement was to be incorporated into the divorce decree, the trial judge who first decided the question found th e language of incorpora tion “plainly” required that the Agreement was to be incorporated in to the decree, implicitly concluding there was no ambiguity. The judge next assigned to the ca se, and who conducted the equitable distribution hearing, concurred in the finding that the Ag reement was not ambiguous and that the clear language of the incorporation pr ovision required that it be inco rporated into the decree of divorce: [The predecessor judge] found that there was no ambiguity in the premarital agreement and she incorporated the agreement into the Final Decree of Divorce. . . .- 7 - Agreement was only enforceable upon death of one of the parties.

both agree that the court of the relevant jurisdiction shall be decree of judgment in any su ch action, but not merged.”

incorporated.

language of the Agreement.

?

.

e the

e e parties. We find that although the trial court di d not err in incorporating the Agreement into the Agreement [T]he Plaintiff [wife] continue s to argue that the Premarital However, the Premarital Agreement clearly states: “In the event of any divorce or sepa ration action by either of us, we requested by both of us to incorporate this Agreement in any

This Court finds no basis not to follow [the predecessor judge’s] ruling and thus finds that the Premarital Agreement was We find no error in the trial court’s decision to incorporate the Agreement into the divorce decree based on the plain II. DID THE COURT ERR IN APPLYING THE PREMARITAL AGREEMENT TO THE DISTRIBUTION OF PROPERTY CONTRARY TO THE INTENT OF THE PARTIES Wife contends that the trial court erred in applying the Agreement to the distribution of property, specifically to the dist ribution of Fiddler’s Green an d the Sarasota condominium, on the ground that the parties did not intend the Agreement to apply in the context of divorce. We
agree. The trial court’s ruling that the parties intende d that the Agreement be incorporated into any divorce proceeding that might ultimately ensue and that they plainly expressed that intent in one of the Agreement’s provisions does not address th e core issue wife raises before this Court The core issue is whether the provisions so in corporated govern the disp osition of the parties’ real property known as Fiddler’s Green and the Sa rasota condominium, or whether they, lik remaining provisions in the Agreement and as the trial court concl uded, apply only upon th death of th the divorce decree, it erred in concluding the partie s intended that- 8 - was to govern nium in the context of divorce. Its aw The Ag nly three reference divor orce decree, one directing the parties’ individual re separation or d es’ rights in the event of

4 f the

r to divorce or separation. They relate, instead, to the dispositi on of property upon the death of one or both of the parties and, partic an, s ide ing in Toky the distribution of Fiddler’s Green and the Sarasota condomi ard on this issue must, accordingly, be reversed. reement consists of seven pages a nd numerous provisions of which o ce: one directing the Agreement be incorporated into any div sponsibility for the payment of a ttorney’s fees in the event of ivorce, and one providing for a determ ination of the parti a change in the law governing divorce. The remaining provisions govern the disposition o parties’ property interests and contain no references whatsoeve

ularly, to the post-mortem inheritance rights of the parties’ sons. Husband’s son, Jonath ntified in the Agreement as thirty-two year s old, married with childr en, and currently liv i o. Wife’s son, David, is identified in the agreement as nineteen years old and “about to start his college sophomore year.”

4 that the plain language of the Agreement was no t ambiguous and that it re quired incorporation of divorce has no bearing on whether the parties’ property is to be divi ded pursuant to the has no bearing on whether the parties intended th at the Agreement, and not Virginia equitable A species of “choice of law” provision, it states that the parties waived any and all equitable distributi on and community property rights either or both of us to a place which has community property laws or of any other jurisdiction. The provision regarding incorporation was the stated basis for the trial court’s ruling the Agreement into the divorce decree. The provis ion addressing attorney’s fees in the event of Agreement. The remaining provision in which di vorce is referenced in th e Agreement, likewise, distribution law, was to govern th e distribution of any of their pr operty in the event of divorce.

which might arise in the future ei ther as a result of relocation of and/or by a change in the laws of the Commonwealth of Virginia Indeed, if anything, this provision suggests that the part ies contemplated that, in the event of divorce, Virginia equitable distribution law, curr ent at the time the Agreement was executed, was to apply.- 9 - identifies a primary and second

to

rimary bene ficiary of the policy a nd wife’s son, David, was to be named the contingent beneficiary. Wife also makes a bequest to her husband’ s son, Jonathan, stating, “To complement David’s accelerated distribution in event of

, /her] own son and any other heirs we hese accounts.” The Agreement sets forth a disposition plan for three categories of property: insurance, personal property, and real property

. In each case, the provision ary beneficiary and speaks of the pr operty interest in terms of a bequest. With respect to life insurance, the Agreemen t provides that wife is to name husband as the beneficiary of a $100,000 individual term po licy that she owned. Wife names her son, David, as the secondary beneficiary of the policy. In order to continue what the parties referred to as “a bond of protection between [wife] and [her son] David sinc e his birth,” the parties agreed that “if [wife] should die before David is settled on a life course afte r schooling, David is to receive a $100,000 payment as a bequest from his mo ther from the funds [w ife] will bequeath [husband], and as an initial disbursement to David of monies eventually due to him.” Wife’s other life insurance policy, comprise d of a group term policy through her work and initially amounting to about $260,000, was also addressed in the Agreement, which specified that husband was to be named the p

[wife’s] death, Jonathan will receive a like $100,000 advance against his eventual bequest in the event [wife] pr edeceases [husband].” With respect to personal property, the partie s agreed to designate each other “as 100% primary beneficiary or transfer recipient, upon death, on all of our pers onal accounts (brokerage 401-k, checking/savings, and the like). [Each part y shall] designate [his [husband and wife] choose as con tingent beneficiary of 100% of t- 10 - form

of the personal propert
furnishings and personal property, except as follows or has been property in both FG [Fiddler’s Gree n] and in Sarasota to identify and pieces we acquired jointly. We agree that our sons may take from [the homes] any and all desires to have in his own home and use, except for those items either of us so long as (s)he lives. Either of us has the right to heirs. A ula identifies the party’s son’s share a nd the surviving spouse’s responsibilities with respect to that share. 5 The parties also provide for a disposition of the “non-monetary” portion y they owned, again to take effect upon their death: We agree that each other may keep and continue to use our directed by a Will. We plan to maintain a record of personal pieces of significance which each of us brought to the marriage

belongings and furnishings that be longed to his parent, which he that have been designated in writi ng to remain with the survivor of designate specific items of property to pass to ultimate/contingent

5 Pursuant to that formula, a record of the deceased party’s bequest of personal property is to be of that parent’s tr maintained by the survivor to ensure th at the deceased party’s son received his share ansferred asset: We agree that if one of us surviv es the other and thus becomes the 100% primary beneficiary of the other one’s accounts, an “Allocation” will take place. This Allocation will attribute the percentage of all monetary (but NOT FG [Fiddler’s Green] or Sarasota) out of the total monetary assets that have transferred to the surviving spouse. The survivor will maintain appropriate documentation of the Allocation, and will take all necessary steps to see that at the very least, the Allocation percentage will ultimately go to the son (or other designated contingent heirs) of the first decedent upon the death of the survivor. In other words, we agree that the survivor of us shall retain the use of the combined monetary assets during her/his lifetime for all support and living expenses, but that upon the second death, the Allocation percentage will govern distribution of the residual monetary assets to subsequent heirs. (Emphasis in original).- 11 - amongst them in sharing and sharing alike our family possessions nal property afte r we are both dead.

e parties’ respective interests, each party’s right to arged with the costs of maintaining f both pieces of real property is add ately, of both parties. The Agreement provides that if wife predeceased husband, he had the

e
ent. Under the Agreement, the Sarasota condominium was to continue being held in joint title with the right of surv ivorship. Upon husband’s death, the pa rties agreed that wife was to

t heirs [husband] indicates will inherit 100% of Sarasota upon [wife’s] subsequent death. If [wife] dies before reen]. We wish our sons and other heirs a cooperative spirit of respect of perso With respect to Fiddler’s Green and the Sara sota condominium, the distribution of which is challenged here, the Agreement addresses the titling of th possession irrespective of title, an d which party was to be ch and/or im proving the properties. In addition, the disposition o ressed, but specifically in the co ntext of the death of one or, ultim

right to live at FG [F iddler’s Green] and/or to occupy the property at any and all times for the rest of his life, and that the property may not be sold without his expre ss written consent as long as he lives. We recognize and reaffirm a long-term lease that we hav executed with [husband] as “tenant” as further confirmation of our agreem 6

retain possession and use of the pr operty during her lifetime (with responsibility to maintain it) a nd that [husband’s son] and any other subsequen [husband], he shall reta in 100% of Sarasota and its value separate from the Allocation of monetary a ssets or FG [Fiddler’s G

g-term lease reflecting this portion of the Agreement was executed nced in another provision of the Agreement as well. The tw ith each other. The prior provision states: While we intend that [wife] shall continue to have sole titl [Fiddler’s Green] while she lives , we have executed a long-term lease confirming [husband’s] full and unfettered right of possession and/or occupancy at FG [Fiddler’s Green]. Neither [wife] nor her execut 6 A lon by the parties and was refere o provisions are inconsistent w e to FG

or or estate may sell FG [Fiddler’s Green] without [husband’s] express wr itten consent until his death. (Emphasis added).- 12 - Paralle onal property, the Agreement eneficiaries of these two pieces of real pro
either of us, or if the survivor vacates FG [Fiddler’s Green], the such that our sons or other subse quent heirs will first receive the “Basis Equity”) . . . . Any outstandi ng Line of Credit or other claim [wife’s] share. A formula for calculating the “Basis Equity” which was to be paid the parties’ respective sons upon the death ing that the value of the real prop rent residual equity” in the A ould exceed or fall be low the dollar value of the “basis equity,” the parties ling the provisions setting forth the di sposition of the partie s’ pers names the parties’ sons as their c ontingent b perty: If we die at the same time, or af ter the death of the survivor of equity in FG [Fiddler’s Green] w ill be divided and promptly paid dollar value of his parent ’s equity interest (we’ll refer to this as the against the value of FG [Fiddler’s Green] will be deducted from

of both or either pa rty was set out in the Agreement. 7 Anticipat erty at the time of the death of one or both par ties (called the “cur greement) c further specified how to calculate their “subsequent heirs’” share under those circumstances:
ula for calculating the “dollar value of [each party’s] equity in s the ‘Basis Equity’)” in Fiddler’s Green was set out in the Agree We agree that our respective equity interests (as distinct from title) in FG [Fiddler’s Green] shall be as follows. [Wife] shall have an 7 A form terest . . . (referr[ed] to a ment:

interest of $273,000 plus improvements she pays for from her earnings from work. [Husband] sh all have an interest of $8,000 plus improvements he pays for (including but not limited to the planned renovation) plus any payments he makes toward the
terest in FG [Fiddler’s Green] over time. nd he

y included in her $273,000 equity interest above. mortgage and note. . . . When [ husband] pays for that renovation and/or makes payments toward the mortgage and note, he is likely to build up a majority equity percen tage in Regular payments on the FG [Fiddl er’s Green] mortgage, taxes a insurance will be paid by [wife] from her earnings while s works, and after that from our retirement incomes. [Wife’s] payments toward [sic] mortgage and note, and maintenance over the course of her working over the next two years, are alread- 13 - greater [I]f the then-current residual equi ty in FG [Fiddler’s Green] is than the initial Basis Equity, that residual equity will be equity value of FG [Fiddler’s Green] is less divided and paid 5 0 /50 to each of our subsequent heirs. If the than the Basis Equity, the value and distribution to each of our subsequent heirs will be proportionally reduced. (Emphasis in o It was t calculate the parties’ respec We conclude the trial court erred in so doing. Nothing in the language of these

, beginning with the following: Our intent, individually and togeth er, is to make fair financial
eventuality of our deaths. . . . [T]his Agreement is not a Will or

The pa was the subject of another prov cial arrangements f [T]his Agreement is our effort to clarify and to concretize our d the ing to riginal). hese formulas that the trial court us ed in the divorce proceeding to tive interests in Fiddler’s Green and the Sarasota condominium.

provisions regarding the disposi tion of Fiddler’s Green or the formula set forth for calculating the parties’ interest in the pr operty indicates the Agreement is to govern the distribution of the property in the event of divorce. Indeed, the parties’ expressed intent in entering the Agreemen t is to the contrary. Four provisions in the Agreement reflect that intent. All four relate to the parties’ post-mortem financial planning
arrangements to share our financia l capabilities and at the same time to prepare ourselves and our respective sons for the ultimate testament, but it describes our commitment to post-mortem financial arrangements that will help each of us deal with financial consequences of the other’s death. rties’ intent that intrafamily conflicts after their deaths be avoided

ision, corroborati ng the parties’ intent to make post-mortem finan or each other and for their heirs:
commitments to each other so as to minimize any misunderstandings or conflicts be tween a surviving spouse an children, or between the children afte r our deaths. We are try inform and to guide them as to our intentions and desires.- 14 - The pa Green after wife’s death, and they

raditi on to both [wife] and David. If [wife] dies before [husband], he agrees to share the FG [Fiddler’s me with David until David reaches the age of 21; beyond that age, [husband] welcomes Da vid’s and/or Jonathan’s visiting

nheritance under the Agr ate

nequal bequests:
in life deserve some assistance, and we hope that Jonathan will David has (Jonathan has two child ren), Jonathan is also more is time and will not be injured by this financial allocation. Finally sed by a provision that
his Agreement, the other . . . will have a valid, meritorious and enforceable claim against the . . . the claimant will be indemnified by the other and/or the other’s Agreement against any such Will or testament or Trust. The parties qualified this restricti on, specifying that in the event they divorced, the restriction on their right to m those se t out in the Agreement would no long rties intended that their s ons continue to live or visit at Fiddler’s expressed this intent as follows: We recognize how important FG [Fiddler’s Green] is as a home and as a piece of family t Green] ho and staying overnight th roughout their lifetimes. The parties also considered the ultimate va lue of their respective son’s i eement and, recognizing that their plan would “somewhat enlarge David’s ultim inheritance and somewhat reduce Jonathan’s ultimate inheritance from what each of us individually might have bequeathed to them,” they included a provision explaining their intent and rationale for the potentially u We believe that David’s younger ag e and less-established station agree that although he (at least now ) has greater obligations than financially established than David is at th , the testamentary nature and pu rpose of the Agreement is addres includes a disincentiv e to deviate from that purpose: [I]f either [Husband or Wife] . . . makes a Will or executes a Trust . . . contravening any provisions of t person making that Will or Trust and/or that person’s estate, and estate for all legal fees and costs necessary to enforce this

ake testamentary arrangements in contravention of er apply.- 15 - h e court must bear in mind “‘the situation of the parties, the intend to accomplish.’” In discerning the intention of the parties, t subject matter of the agreement and the object which the parties Reid v. Boyle , 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (quo ting High Knob, Inc. v. A llen , 205 Va. 503, 507-08, 138 S.E.2d 49, 53 (1964) (internal quo tations omitted)). “Words used by the parties are normally given their usual, ordinary and popular meaning.” Winn v. Aleda Constr. Co. , 227 Va. 304, 307, 315 S.E.2d 193, 194-95 (1984) (citing Ames v. American Nat. Bank , 163 Va. 1, 39, 176 S.E. 204, 217 (1934)). “‘In construing a contract . . ., the intention of the parties must be ascertained from the entire instrument.’” Bott v. N. Snellenburg & Co., Inc. , 177 Va. 331, 339, 14 S.E.2d 372, 374 (1941) (quoting Harrity v. Continental-Equi table Title & Trust Co. , 124 A. 493, 494 (Pa. 1924)). An expression t will be held to have the same purpose plainly
appears.

r were to be applied in equitably distr t, accordingly, applied the Ag ts. 8 We reverse that decision o First, th ult the trial court to which a plain meaning is attached in one part of an instrumen meaning in other parts of the same instrument unless a contrary

Here, the trial court concluded that the pa rties intended that th e provisions in thei Agreement regarding Fiddler’s Green and the Sa rasota condominium ibuting those pieces of real prope rty in the divorce proceeding, and i reement’s formulas to calculate the parties’ interests in those asse n the following grounds. e language of the provisions provides no basis for the res reached. A review of each provision in the Agre ement regarding the treatment of property, both

s in those properties, the trial court awarded husband $697,573 for his interest in Fiddler’s Green ife Fiddler’s Green, less husband’s interest, and a fu ture interest in the Sarasota condominium. 8 Applying the formula in the Agreement for de termining the parties’ respective interest and ordered the Sarasota condominiu m to be retitled in husband’s sole name. It awarded w- 16 - ade

ly upon death. To be
sure, as

e in the formula to be used to value the parties’ personal prope rty and the provision to be appl t, uing

ce in th e formula for evaluating the parties’ respective interest

in Fiddler’s Green to their sons or subsequ Finally, we note the trial court’s construc tion essentially and improperly treats as real and personal, shows they refer solely to the time of the partie s’ death. No reference is m to an intended distribution of property in cident to divorce. Second, the trial court’s construction fails to consider the Agreement as a whole and ignores the clear meaning of the same words us ed in other parts of the Agreement which the court, tellingly, concluded required the applicat ion of the Agreement sole argued by husband, the parties stated th ey intended to treat Fiddler’s Green and the Sarasota condominium “differen tly” from the parties’ personal property. However, it does not follow from the word “differently” that the part ies intended to exclude Fiddler’s Green and the Sarasota condominium from the testamentary pa rameters of the Agreement. Indeed, the only difference that emerges from our review of the pl ain language of the provisions in question is th difference ied in valuing their inte rests in Fiddler’s Green and the Sarasota condominium. Bu neither the formula for valuing the parties’ person al property interest nor the formula for val their interests in Fiddler’s Green and the Sara sota condominium speaks in any respect to divorce as the circumstance governing their applicati on. No explanation is found in the record addressing how or why a simple differen s in their personal and real property compels the conclu sion the trial court reached. Indeed, the formula for calculating the parties’ respective interests in Fiddler’s Green and the Sarasota condominium, by its language discussing th e parties’ “Basis Equit y,” relates back to the provision providing for the payment of each party’s equity ent heirs upon th e parties’ deaths.

meaningless the words of bequest in the provisio ns governing the disposition of Fiddler’s Green and the Sarasota condominium. “‘[N]o word or cl ause is to be treated as meaningless if any- 17 - v. reasonable meaning consistent with the other pa rts of the contract can be given to it.’” Hutter Heilmann , 252 Va. 227, 231, 475 S.E.2d 267, 270 (1996) (quoting Vega v. Chattan Assocs. , 246 Va. 196, 199, 435 S.E.2d 142, 143 (1993)). See also Restatement (Second) of Contracts, § 2 cmt. d (1981) (“Where the whole can be read to give significance to each part, that reading is preferred . . . .”). We find in our de novo review of the Agreement that it is not ambiguous or vague as to whether the Agreement applies to the distributio n of the property in th e case of divorce, but rather it is quite clear within the four corners of the document. In support of his contention that the pr ovisions regarding Fiddler’s Green and the 02

t of
t rding Sarasota condominium were to govern in the even t of the parties’ divorce, husband argues that the trial court “heard exhaustiv e testimony regarding the parties’ intent with regard to the Agreement” and that the testimony establishes the Agreement applies bot h in the contex divorce and upon death. Husband’s c itations to the record, howeve r, fail to support the argumen advanced. 9 Husband cites the trial cour t’s opinion letter and to his counsel’s argument rega

9 The testimony cited is limited to The conclusion of the trial judge regarding the parties’ intent in his opinion lett of February 17, 2009.· The argument of husband’s Husband’s testimony that he er counsel regardi ng the construction of the Agreement.· thinks that the “express intent is a combination of two sec page 2 . . . that ve that

te, tions in the document. . . . One of those two sections is the . . . fourth paragraph of says we waive equitable distribution in two limited circumstances. So that I belie the language of paragraph 4 on page 2 expressly establishes that equita ble distribution should operate in the event of divorce. And that has to be read collaboratively [sic] with page 4, paragraph 3, which expressly excludes from equita ble distribution the two pa rcels of real esta Fiddlers Green and Sarasota.” Husband’s testimony that “In the event of divorce or death, death inevitable, that the document provides a formula for allocating or dividing the equity interests in those two pieces of property.” Husband’s testimony that he “had concerns about protecting the money that I was going to be putting into [wife’s] house, so that it would ultimately all come back either to me in the event of divorce or come back to my son and grandchildren after both of us were dead.”- 18 - nion that the document provides a formula for dividing the parties’ real propert

guage they used to express their

greem the construction of the Agreement; neither constitutes testimony. Husband’s testimony expressing his opi y interests “in the even t of divorce” is, at best, a commentary on the Agreement’s language that is of no import in construing a co ntract. “A contract is not deemed ambiguous merely because the parties disagree as to the meaning of the lan a ent.” Ross v. Craw , 231 Va. 206, 212-13, 343 S.E.2d 312, 316 (1986) (citing Wils on ,

he 227 Va. at 187, 313 S.E.2d at 398). “Contracts are not rendered ambiguous merely because the parties or their attorneys disagree upon the meaning of the language employed to express t agreement.” Doswell Ltd. Partnership v. Vi rginia Electric & Power Co. , 251 Va. 215, 222-2 468 S.E.2d 84, 88 (1996) (citing 3, Wilson , 227 Va. at 187, 313 S.E.2d at 398). Finally, husband’s testimony regarding his co ncerns about “protec ting his money” and that it was to “all come back either to [him] in the event of divorce or come back to [his] grandchildren after both of us were dead,” constitutes ex trinsic evidence that cannot be use contradict or vary the terms of a valid written instrument. son and d to Tuley v. Barton , 79 Va. 387, 39 2 (1884) (parol evidence cannot be “received to engr aft upon, or incorporate with a valid written
contrac neously therewith and inc onsistent with its terms. In

any other cons t, an incident occurring co ntempora other words, no new words can be added, nor, wh en the meaning is clear and unambiguous, can truction be given than what the written words na turally import.”). “‘Where a contract is complete on its face, is plain and unamb iguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself.’” Pellegrin v. Pellegrin , 31 Va. App. 75 759, 525 S.E.2d 611, 614 (2000) (quoting 3, Harris v. Woodrum , 3 Va. App. 428, 432, 350 S.E.2d 667, 669 (1986)). In summ ary, no provision in the Agreement expr essly excludes the part ies’ real property interests in Fiddler’s Green and the Sarasota condominium from equita ble distribution pursuant- 19 - t’s

d

DID T

DISTRIBUTION OF THE PARTIES’ ASSETS BY FAILING TO PROPERLY CLASSIFY TRACING OF ASSETS, AND FAILING TO CONSIDER THE FACTORS IN CODE

n

on. Its failure to do so constitutes error. See to Code § 20-107.3 or expressly brings the distribu tion of those interests within the Agreemen reach as argued by husband. There is no basi s from which to conclude, expressly or by implication, that the parties intended the Agr eement to apply in the context of divorce. For the reasons stated here, we, therefore, find that the trial court erred in its application of the Agreement to the distributi on of the parties’ real property interests in Fiddler’s Green an the Sarasota condominium. 10
III. HE COURT ERR IN ITS APPLICATIO N OF CODE § 20-107.3 IN THE EQUITABLE AND VALUE PROPERTY, IMPROPERLY APPL YING THE BURDEN OF PROOF IN THE § 20-107.3(E)? A. Wife argues that the trial court failed to valu e the parties’ real prope rty interests which, i addition to Fiddler’s Green and the Sarasota cond ominium, included a property referred to as the 1600 Oak Street property and properties held by limited partnerships and limited liability companies. 11 Because the trial court erroneously addressed the parties’ property interests in Fiddler’s Green and the Sarasota condominium pursuant to the parties’ Agreement and did not apply the principles of the equitable distri bution statute, the trial court di d not provide a value for the two properties in questi Code § 20-107.3(A) (“the court . . . sha ll determine the . . . value of all property, real or personal, tangible or intangible . . .”).

Because we conclude that the trial court erred in a pplying the Agreement to the distribution of Fiddler’s Green and the Sarasota condominium, we need not address wife’s additional argument that the c ourt’s distribution of the prope rties was not based on prope evidence of each party’s contribution to the property.

11 The 1600 Oak Street property is also referred to as the Arlington condominium 10

r
, which is discussed in Section I of husband’s cross-error below.- 20 - th e trial court did not determine th e value of River Oak LP. That failure constitutes error.

c separate property. “This statute [Code § tes that the court determine the ownership and value of all real and personal property of the parties.” Hodges v. Hodges The River Oak LP property and the propert ies held by the limited partnerships and limited liability companies, on the other hand, were addressed pursuant to the equitable distribution statute. However,

Likewise, the trial court failed to value the limited partnerships and limited liability ompanies, instead holding that they, except for Atlantic Psychiatry Group, were husband’s 20-107.3] manda , 2

al court also failed to value the remain ing limited partnerships and limited liability
ompan t Va. App. 508, 516, 347 S.E.2d 134, 139 (1986). Here, th e trial court erred when it failed to value River Oak LP and Atlantic Psychiatry Group, which it classifi ed as marital. Its equitable distribution of these two propert ies is, therefore, reversed. The tri c ies, which were classified as separate. However, the error is harmless because it was no relevant to the equita ble distribution award. See McDavid v. McDavid , 19 Va. App. 406, 413, 451 S.E.2d 713, 718 (1994). B. Wife further argues that the trial court erre d in awarding husband a se parate interest in Fiddler’s Green and its decision should be re versed on the ground husband failed to meet hi burden of proving the identity of his separate interest in the h ybrid property and failed to that portion to a separate asset. s
trace See generally Rahbaran v. Rahbaran , 26 Va. App. 195, 494 S.E.2d 135 (1997); von Raab v. von Raab , 26 Va. App. 239, 494 S.E.2d 156 (1997). She also

ldi contends the trial court erred because husband failed to prove that any separate property contributions he made increased the va lue of wife’s sepa rate property, citing Rinaldi v Rina , 53 Va. App. 61, 73, 669 S.E.2d 359, 365 (2008) (“‘It is the value that improvements add to the- 21 - at is the proper cons ideration because the court is apportioning the equity i property, not their cost, th n the hybrid property when it traces the sources of contributions to that property.’” (emphasis in or iginal) (quoting Hart v. Hart , 27 Va. App. 46, 66, 497 S.E.2d 496, 505 (1998) Because the trial court erroneously applied the parties’ Agreement to determine their intere Fiddler’s Green, it failed to apply the correct pr inciples governing tracing in its distribution o Fiddler’s Green. Its decision is , therefore, reversed and the matter remanded for consideratio under the equitable distribution statute. C. )). st in

f

n

liability faci ng the parties and informed her that she should consider amending the tax returns and retaining a tax a ttorney. The IRS had neither investigated the part l. of

reduce an award for potential cap ital gains tax consequences no requires only that the trial court consider tax consequences when to assign to this factor in the ove rall decision lies within the trial Wife limits her argument that the court failed to consider all th e factors under Code § 20-107.3 to her claim that the court erred in fail ing to consider the tax consequences resulting from husband’s business deductions in making its equitable distribution award. Wife’s expert testified as to the potential tax

ies’ tax returns nor conducte d an audit, and no tax liability ex isted at the time of the tria On that ground, the trial court f ound no evidence of actual tax liabili ty and, because the claim potential tax liability was speculative, there were no tax consequences to consider. We find no error in the trial cour t’s conclusions on this issue. Code § 20-107.3(E)(9) . . . does not mandate that a trial court matter how certain or uncertain they may be. Subsection E(9) formulating an equitable distribut ion award. What weight, if any, court’s sound discretion. Owens v. Owens , 41 Va. App. 844, 859, 589 S.E.2d 488, 496 (2003). We find the trial court not err in concluding there we re no tax consequences to c onsider in making its award. did- 22 - VALIDITY OF THE LEASE? Wife argues that the trial court erred in fi nding that the lease was valid. First, wife contends the lease was not entered into evidence and reviewed by the trial court. However, the trial court admitted the lease as a joint exhibit, 12 and reviewed the lease and addressed it in its letter opinion. Second, wife argues that the lease “does not ri se to the level of an enforceable contract” because it does not specify a sum for rent or a fo rmula to establish the amount. The lease states, “Tenant [husband] warrants to under take to provide funds sufficien t to pay principal, interest, HOA fees and taxes on the premises/property beginning in January, 2007 and extending through the subsequent period of occupancy of the propert y by tenant for the remainder of this Lease.” The trial court concluded that “[t]here was a defi nite lease term of 40 years and the rent was to be paid by the Defendant [husband] in the amount of the monthly mortgage payments, interest, HOA fees, and taxes on the property. The Court finds that this is a specific rental amount and thus there is a We find lease was not valid on this gr IV. DID THE COURT COMMIT LEGAL ERROR IN UPHOLDING THE

13

valid lease.”

no error in the trial court’s rejection of wife’s contention th at the ound. See Allen v. Aetna Casualty & Surety Co. , 222 Va. 361, 36 4, 281 S.E.2d 818, 820 (1981) (Where there is no sum specified in the agreement, nor any method or formula set out for determining the amount, the mutual asse nt of the parties to th e terms is lacking and the contract is not enforceable.); Davis v. Cleve Marsh Farm Hunt Club , 242 Va. 29, 34, 405

12 The lease was accepted into evidence as Joint Exhibit 2. Counsel for appellant noted for the trial court, “We agree that [Joint Exhi bits] 1 and 2 come into evidence. That’s the prenuptial agreement, Judge, and the document called the lease.”

13 The term of the lease was defined as forty years.- 23 - S.E.2d 839, 842 (1991) (“[A] lease renewal provision th at does not set forth an agreed rental is invalid and u e also nenforceable, absent a specified method or guideline for fixing rent.”); se Phipps v. Storey , 601 S.W.2d 249, 252 (Ark. 1980) (“Where th e annual rental is not agreed upon and the contract does not otherwise provide a ma nner for its definite determination, the contract does not meet this test [of certainty].”). Here, the trial court properly determined that the lease provided “a specific method or guide line for fixing [the] rent” to be paid, viz., the sum of the “principal, interest, HOA fees and taxes.” Wife also argued that the lease was invalid because it did not provide “definitive terms” by which a remedy for potential breach could be dete rmined. Wife cites two cases in her brief, but neither supports her argument. Wife’s failure to provide legal authority to support her argument is significant, and we will, therefore, not consider it. Parks v. Parks 14 , 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008); see Rule 5A:20(e) (appellant’s opening brief shall include “[t]he principles of law, the argument, and th e authorities relating to each question presented . . .”). V. DID THE COURT COMMIT LEGAL ERROR IN ORDERING THE TRANSFER OF

o distribute the parties’ interests in Fiddler’s Gr een and the Sarasota condominium, and we remand SEPARATE PROPERTY? The trial court found that, under the Agreemen t, the Sarasota condominium, which was held jointly, was to remain husband’s separate pr operty and it, accordingly, re-titled the property in husband’s name. Wife claims the Agreemen t does not confer jurisd iction on the court to transfer the separate property. Since we hold the trial court erred in applying the Agreement t

14 Wife cites Valjar, Inc. v. Maritime Terminals , 220 Va. 1015, 1018, 265 S.E.2d 734, 737 (19 80), and Progressive Constr. Co. v. Thumm , 209 Va . 24, 30-31, 161 S.E.2d 687, 691 (1968).- 24 - ARLINGTON CONDOMINIUM? Husband argues that the trial court erre d in awarding wife $56,367, an amount the court found represented her “marital equity” in the Arlington condominium, which was husband’s primary residence after the separation. We disagree. On July 30, 2007, husband created JDICO, LL C (JDICO) in anticip ation of divorce. JDICO’s main asset, the Arlingt on condominium, was purchased w ith two separate payments. Husband argues one payment was in the form of a $30,000 check that was drawn on a joint account (Fidelity IMA 0546), but wh ich husband contends he traced to his separate assets. A second payment was in the form of a $226,950 wire from another Fidelity brokerage account (Fidelity 1186) that husband contends the tr ial court found to be his separate asset. Husband correctly argues that the trial c ourt held the Fidelity 1186 brokerage account was husband’s separate property, a e account to him as his separate propert

has not considered or has misapplied one of the st atutory mandates, or that the evidence fails to support the case for further proceedings und er the equitable distribution stat ute, we need not address this question. HUSBAND’S CROSS-ERROR I. DID THE COURT ERR BY AWARDING WI FE A SEPARATE INTEREST IN THE

s evidenced in its award of th y in the divorce decree. Wife does not challenge that finding and award on appeal. The inquiry remains, then, whether th e trial court erred in its findi ng that the funds drawn from the Fidelity IMA 0546 account in the amount of $3 0,000 were marital and that husband failed to trace the funds to his separate property. ‘“[U]nless it appears from the record that th e chancellor has abused his discretion, that he

the findings of fact underlying his resoluti on of the conflict in th e equities,’” the trial court’s award of equitable distribution will not be reversed on appeal. von Raab , 26 Va. App. at- 25 - 246, 494 S.E.2d at 159 (quoting Robinette v. Robinette , 10 Va. App. 480, 486, 393 S.E.2d 629, 633 (1990) (citations omitted)). The Fidelity IMA 0546 a $30,000 was drawn is jointly titled and presumed to be marital. “Marital prop ty is . . . all property titled in the names of both parti property, and it was his burden to prove what portion, if any, was separate. Whether a transmuted asset can be traced back to a separate including the value and id entity of the separate interest at the time ming a separate interest in transmuted property bears the burden of proving retraceability. If proves retraceability, the burden shifts to the other party to prove “gift.” von Raab ccount from which the check for

er es . . . .” Code § 20-107.3(A)(2). Husb and argued that this account was not marital

property interest is determined by the circumstances of each case, of the transmutation. . . . The part y clai the party claiming the separate interest in transmuted property that the transmutation of the se parate property resulted from a , 26 Va. App. at 248, 494 S.E.2d at 160 (citations omitted). As this Court previously hel d, where separate property has been commingled with marital property, the trial court must be able to iden tify the separate amount and ‘“compute the ratio [between the separate and marital assets] and trace both interests.’” Rahbaran , 26 Va. App. at 208-09, 494 S.E.2d at 141-42 (quoting Brett R. Turner, Equitable Distribution of Property 266 n.591 (1994)). If the party cannot present evid ence from which the court can determine the party’s separate asset, the property is transmuted and becomes marital property. Id. at 208, 494 S.E.2d at 141. See also Gilman v. Gilman , 32 Va. App. 104, 122, 526 S.E.2d 763, 772 (2000); Barker v. Barker , 27 Va. App. 519, 533, 500 S.E.2d 240, 246 (1998). At trial, husband presented a chart to show the source of funds for the jointly titled Fidelity IMA 0546 account. However, the chart does not directly trace the funds for the $30,000- 26 - 5

e the A 0546 account, the other account u Therefo s were used to purchase the A cluding that husband failed separate property and in finding wife had an interest in the property.

D SEPARATE PROPERTY? Wife was employed at SAIC, and she was aw arded various stock options and restricted stock awards as a result of her employment. Husband argues the trial court improperly cl assified wife’s Mellon One account as her separate property. We disagree. Wife exercised 600 marital stock options and funded the purchase of this stock during the marriage using her separate funds. After the pu rchase, wife transferre d the stock to a holding check to husband’s separate assets . Other than the chart, husband cites no other evidence to this Court to support his contention. 1 Thus, although husband met his burden of pr oving that a substant ial portion of the purchase costs for the Arlington condominium was pa id from his separate assets held in the Fidelity 1186 account, he was unable to establish that th e remaining funds used to purchas property came solely from his separate assets in the jointly held Fidelity IM sed for the payment of the condominium costs. re, on this record, which shows that both marital and separate fund rlington condominium, we find that the trial court di d not err in con to meet his burden of proving the Arlington condominium was his

16
II. ID THE COURT IMPROPERLY CLASSIFY MULTIPLE INTERESTS AS WIFE’S

15 “We will not search the record for errors in order to interpret the appellant’s cont and correct deficiencies in a brief.” ention Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). The appendix in this case is 5,890 pa ges and thirteen volumes. The attorneys failed to direct the Court to the evidence that supports their arguments that the trial court erred in its ruling on classification, so they will not be considered.

16 The amount the trial court awarded wife representing her interest in the Arlington condominium is not before us on appeal. We , therefore, need not address the issue.- 27 - n the date of purchase of the exercised options is marital propert es

ci sed) in wife’s Mellon One

accoun

t t erred in classifying these shares as wife’s separate property. This error is signi f t, and we will not consider these questions. See account within her Mellon One account. Husband contends the difference between the strike price 17 and the fair market value o y. Using his formula, husband argues 88 sh ares were marital property, and 512 shar were wife’s separate property and that the trial c ourt should have ordered wife to transfer one-half of the 88 shares to him. He also argues there is no evidence that wi fe’s remaining unrestricted shares of SAIC stock (1,099.9308 shares minus the 600 stock options wife exer t are wife’s separate prop erty and that the trial court’ s ruling should be reversed. Rule 5A:21(d) states that “the brief of the a ppellee shall contain . . . [t]he principles of law, the argument, and the authorities relating to each question presented.” Husband did no present any legal authority for his contention that the trial cour ican J ay , 275 Va. at 520, 659 S.E.2d at 317. Finally, husband argues that the trial court erred in holding th at wife’s unexercised SAIC stock options, her restricted SAIC stock awards, and her CEO stock award (collectively referred to as the SAIC Newport Group Restricted Stock Award) were her separate property. Wife explained to the trial court that sh e could not exercise the SAIC Newport Group Restricted Stock Award unless she was employed at SAIC in 2011. Since the vesting of this award was conditioned upon wife’s continued empl oyment, her right to these shares would not vest until after the parties’ sepa ration and divorce. Consequentl y, the trial court did not err in classify ing the SAIC Newport Group Restricted Stock Award as her separate property. See Shiembob v. Shiembob , 55 Va. App. 234, 242, 685 S.E.2d 192, 196 (2009) (trial court erred in

on 17 Strike price is “[t]he price for which a s ecurity will be bought or sold under an opti contract if the option is exercised.” Black’s Law Dictionary 1308 (9th ed. 2009).- 28 - holding that husband’s restricted st ock shares were marital property because they did not vest until after the parties’ separation); Ranney v. Ranney , 45 Va. App. 17, 33-34, 608 S.E.2d 48 493 (2005) (trial court erred in holding that husband’s stock options were his separate property because although they were acquired before the marriage, they vested after the parties’ marriage); 5,

Cirrito v. Cirrito , 44 V a. App. 287, 293-94, 605 S.E.2d 268, 271 (2004) (funds receive

HER SEPARATE PROPERTY? Husband argues that the trial court erred in holding that wife’s ve hicle was her separate property. “Because the trial court’s classification of prope rty is a finding of fact, that classification will not be reversed on appeal unless it is pl ainly wrong or without evidence to support it.” Ranney d by husband as a result of a non-compete agreement were marital because his right to receive the funds occurred dur ing the marriage, after he complied with the non-compete agreement). III. DID THE COURT ERR IN CLASSIFYING WIFE’S VEHICLE AS

, 45 Va. App. at 31-32, 608 S.E.2d at 492 (citing McDavid , 19 Va. App. at 407-08, 451 S.E.2d at 715, and Srinivasan v. Srinivasan , 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)). Prior to the marriage, wife purchased a vehicl e with the assistance of a loan. On July 6, 2004, husband wrote a check, in the amount of $9,907.84, to pay off the loan. The check was from a joint account. Husband argues that he prim arily used the account and testified that wife’s name was on the account “to facilitate her access to the account if [h e] got sick.” Therefore, he contends he has a separate interest in the car in the amount of $9,907.84 and that he should be reimbursed the full amount. On this record, we conclude that husband did not prove that he had a separate interest in the car because the checking account from which the funds were drawn to d pay off the loan was jointly titled prior to the ma rriage. Since husband did not prove that he use- 29 - HUSBAND’S BANK ACCOUNT? Husband contends the trial court failed to find that wife wasted and dissipated $15,100 from a joint account, which husband primarily used. Husband contends wife’s withdrawal of the funds constituted waste and that wife failed to show by a preponderance of the evidence that the funds were used for a proper purpose. 19 On those grounds, he argues that he should have been awarded one-half the value of th

.

r marital bills. She further testified that she then realized that husband had moved
money

se

at his separate funds to pay off the car loan, we fi nd that the trial court di d not err in concluding that the vehicle remained wife’s separate property because she purchased it before the marriage. 18
IV. DID THE COURT ERR IN CONSIDERI NG MONIES WIFE WITHDREW FROM

e account before it was dissipated Wife admitted withdrawing the funds and explained she initially wrote “a couple of checks” fo from a Virginia bank account to a Florida bank account right after the separation and that she “was concerned about what was happening, in terms of money and having enough, becau this was just at the po int of separation.” There is no fu rther testimony about the use of the marital funds. Waste has been defined as the “dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage a nd in derogation of the marital relationship

“‘[P]roperty acquired before marriage is presumed to be separate.’” 18 Rahbaran , 26 Va. App. at 209, 494 S.E.2d at 142 (quoting Barnes v. Barnes , 16 Va. App. 98, 104, 428 S.E.2d 294, 299 (1993)); see Code § 20-107.3(A)(1). Wife notes that husband did not make this argument during the tria l, and she contends that he waived the argument. In a bench trial, a party can preserve his issues for appeal in a motion to strike, in closing argument, in a moti on to set aside the verdict, or in a motion to reconsider. 19

Lee , 12 Va. App. at 515, 404 S.E.2d at 738. Here , husband first raised the issue in his motion to reconsider and, thus, preserved the issue.- 30 - a time when the marriage is in jeopardy.” Booth v. Booth , 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). “Onc e the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party ged with dissipation to prove that the money
was sp ch ar ent for a proper purpose.” Clements v. Clements , 10 Va. App. 580, 586, 397 S.E.2d 2 57, 261 (1990) (citations omitted). “[T]he use of fu nds for living expenses while the parties are separated does not constitute dissipation.” Id. (citations omitted). [T]he expenditure of marital funds for items such as voluntary life constitutes a valid marital purpose and is not waste. See, e.g. support, living expenses, attorney’s fees, and other necessities of

, Anderson v. Anderson , 29 Va. App. 673, 695, 514 S.E.2d 369, 381 (1999) (mortgages, credit cards); Alphin v. Alphin , 15 Va. App. port, medical bills for wife); Amburn v. Amburn 395, 402, 424 S.E.2d 572, 576 (1992) (voluntary sup , 13 Va. App. 661, 414 S.E.2d tuition, car loans); Clements v. Clements 847 (1992) (personal living expenses, attorney’s fees, child’s , 10 Va. App. 580, 397 S.E.2d 257 (1990) (household expenses, child’s tuition). Thomas v. Thomas , 40 Va. App. 639, 645, 580 S.E.2d 503, 506 (2005). “When waste has occurred, the court must include the wasted assets as marital property and must consider the waste as a factor in determining the monetary award.” Booth , 7 Va. at 28-29, 371 S App. .E.2d at 573.

sufficient to meet the requisite bur den of proof on this issue. Cf. In this case, wife provided no verifiable e xplanation or accounting of how she spent the $15,100 she withdrew from marital funds; her expression of con cern about finances is not

, Alphin , 15 Va. App. at 403,

nditure he made from these assets.”); Amburn 424 S.E.2d at 576 (husband submitted a “detailed list of funds that the parties held on the date they separated and a complete list of each expe , 13 Va. App. at 666, 414 S.E.2d at 850 (wife “presented a full accounting of her use of the line of credit”). Accordingly, we find that the trial court erred in failing to include the funds as marital- 31 - sue for further consideration by the trial court.

part, property and consider them in fashioning its equitable distri bution award. We reverse and remand the is CONCLUSION For the reasons discussed above, we affirm in part, reverse in part , and remand for further proceedings consistent with this opinion. Affirmed in reversed in part, and remanded.