COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

Argued at Richmond, Virginia 

JOHN JEFFERSON MARTIN 

 OPINION BY 

v. Record No. 1772-96-3 JUDGE SAM W. COLEMAN III 

 JULY 14, 1998 

JOYCE KATHRYN MOSES MARTIN 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY 

B. A. Davis, III, Judge 

 David A. Furrow (Law Offices of David A. 

Furrow, P.C., on briefs), for appellant. 

 John W. Acree (Alton B. Prillaman; Jolly, 

Place, Fralin & Prillaman, P.C., on brief), 

for appellee. 

 In this equitable distribution case, John Jefferson Martin 

(husband) appeals the trial court's award to him of $26,634.22 

representing his contribution of separate property to purchase 

the marital residence valued at $110,000. He contends the trial 

court erred by failing to classify as his separate property the 

portion of the increased value of the home attributable to his 

separate property contribution. A panel of this Court affirmed 

the trial court's decision, holding that the wife's testimony was 

unrebutted that the entire increase in value was marital property 

because she had contributed marital property and significant 

personal efforts that resulted in a substantial increase in the 

value of the marital residence. See Martin v. Martin, 25 Va. 

App. 551, 489 S.E.2d 727 (1997). Upon rehearing en banc, we hold 
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that the trial court erred by failing to determine the increase 

in value of husband's separate property share. We further hold 

that the evidence failed to prove that wife contributed marital 

property or significant personal efforts that caused an increase 

in value of the home. Accordingly, we reverse the trial court's 

equitable distribution award. Because the evidence failed to 

prove that the increase in value of the home resulted from the 

post-purchase expenditure of marital funds or significant 

personal efforts for home improvements, we hold that the increase 

in value should be proportionally divided between the separate 

and marital shares. Therefore, we remand the case for the trial 

court to determine how to divide the marital share in accordance 

with the Code § 20-107.3(E) factors. 

BACKGROUND

 Husband and Joyce Kathryn Moses Martin (wife) were married 

in 1981. Just before their marriage, husband and his former wife 

owned, as tenants in common, a home which was the subject of a 

partition sale. Wife, who had been "studying to be a realtor," 

testified that the house which was listed through a real estate 

agent for $60,100 was, in her opinion, selling too "cheaply." 

She testified she persuaded husband to purchase the house and 

later resell it for a profit. They purchased the home for 

$60,100 in 1981. Husband contributed $26,634.22 of his separate 

property to acquire the home. The parties jointly borrowed 

$30,000 and applied that amount toward the purchase price. 
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Husband claimed the remaining $3,465.78 of the purchase price 

came from his separate property received from his previous 

divorce. 

 In 1993, wife filed for divorce. The commissioner in 

chancery to whom the case was referred determined the value of 

the marital home to be $110,000. The commissioner further found 

that husband was entitled to be reimbursed $26,634.22, the amount 

of his separate funds contributed to purchase the home, and that 

the remaining $83,365.78 was marital property, which should be 

equally divided. The effect of the commissioner's finding was to 

classify as marital property the entire increase in value of the 

home from $60,100 to $110,000 during the twelve years the parties 

owned it. The trial court overruled husband's exceptions to the 

commissioner's report and by final decree adopted the 

commissioner's findings. On appeal, we review the trial court's 

holding that wife's initial recommendation that the home would be 

a sound investment, and her efforts at painting, wallpapering, 

and carpet installation in the home were significant personal 

efforts that resulted in a substantial increase in the home's 

value. 

ANALYSIS

 Code § 20-107.3, which governs equitable distribution 

awards, requires a trial court to classify and evaluate the 

parties' marital and separate properties. The court is no longer 

required to classify property as all separate or all marital. 
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See Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987). Applying 

Code § 20-107.3(A), the court may classify the property as 

separate or marital, or part separate and part marital. 

 In pertinent part, Code § 20-107.3(A) provides that: 

 1. Separate property is . . . that part 

of any property classified as separate 

pursuant to subdivision A3. . . . The 

increase in value of separate property during 

the marriage is separate property, unless 

marital property or the personal efforts of 

either party have contributed to such 

increases and then only to the extent of the 

increases in value attributable to such 

contributions. The personal efforts of 

either party must be significant and result 

in substantial appreciation of the separate 

property if any increase in value 

attributable thereto is to be considered 

marital property. 

 2. Marital property is . . . that part 

of any property classified as marital 

pursuant to subdivision A3 . . . . 

 3. The court shall classify property as 

part marital property and part separate 

property as follows: 

 a. . . . In the case of the 

increase in value of separate property during 

the marriage, such increase in value shall be 

marital property only to the extent that 

marital property or the personal efforts of 

either party have contributed to such 

increases, provided that any such personal 

efforts must be significant and result in 

substantial appreciation of the separate 

property. 

 For purposes of this subdivision, the 

non-owning spouse shall bear the burden of 

proving that (i) contributions of marital 

property or personal effort were made and 

(ii) the separate property increased in 

value. Once this burden of proof is met, the 

owning spouse shall bear the burden of 

proving that the increase in value or some 

portion thereof was not caused by 

contributions or marital property or personal 

effort. 

 "Personal effort" of a party shall be 
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deemed to be labor, effort, inventiveness, 

physical or intellectual skill, creativity, 

or managerial, promotional or marketing 

activity applied directly to the separate 

property of either party. 

(Emphasis added). 

 Under Code § 20-107.3(A)(3)(e), when separate and marital 

property are commingled to acquire new property, "the commingled 

property shall be deemed transmuted to marital property," except 

to the extent the property can be retraced and was not a gift. 

When subsections (1), (2), and (3)(a) of Code § 20-107.3(A) are 

read together, they provide that where separate property can be 

retraced from commingled property, the increased value in that 

separate property is presumed to be separate, unless the 

non-owning spouse proves that contributions of marital property 

or personal effort caused the increase in value. To the extent 

the non-owning spouse claims that the increase in value was 

attributable to personal efforts, the non-owning spouse must 

prove that the personal efforts were "significant" and resulted 

in "substantial appreciation" of the owning spouse's separate 

property interest. Code § 20-107.3(A)(1), 20-107.3(A)(3)(a). 

Once the non-owning spouse overcomes the presumption of 

separateness of the increase in value, the burden shifts to the 

owning spouse to prove that the increase in value or some portion 

thereof was not caused by contribution of marital property or 

significant personal effort. Code § 20-107.3(A)(3)(a).1 

 

 1Code § 20-107.3(A)(1), (2), and (3)(a) provide, in effect, 

that when commingled property has been retraced to separate 
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 In the present case, the parties agreed and the trial court 

found that husband had retraced from the commingled funds used to 

purchase the house, $26,634.22 as his separate property. The 

evidence proved that $30,000 in marital funds were used to 

acquire the house. The trial court treated the remaining 

$3,465.78 of the purchase price as marital property. Thus, 

pursuant to Code § 20-107.3(A)(3)(e), the trial court found that 

$26,634.22 of the commingled funds used to purchase the home was 

retraceable to separate property, and the remaining $33,465.78 of 

the purchase price was traceable to marital property. Although, 

on appeal, husband asserts that the trial court erred in not 

classifying the $3,465.78 as separate property, husband did not 

object to the findings of the commissioner or the trial court 

classifying and valuing husband's separate interest at 

$26,634.22. We will not consider for the first time on appeal an 

issue that was not preserved in the trial court. See Rule 5A:18. 

 However, the trial court erred in failing to determine the 

(..continued) 

property, the separate property interest and the increase in 

value of that interest shall retain the classification of 

separate property unless transmuted into marital property by the 

addition of marital property or funds or by the contribution of 

significant personal efforts that substantially increase the 

value of the separate property interest. However, once the 

non-owning spouse has proven that the increase in value of the 

separate property interest is transmuted to marital property by 

additions of marital funds that caused the increase in value 

and/or significant personal efforts that resulted in "substantial 

appreciation," the owner of the separate share shall be entitled 

to that portion of the increase in value that the owner can prove 

was attributable to passive market forces and not caused by the 

addition of marital property or expenditure of marital funds and 

not by the non-owning spouse's personal efforts. 
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extent to which husband's separate property interest in the home 

increased in value during the twelve years of marriage. See Code 

§ 20-107.3(A)(1) ("The increase in value of separate property 

during the marriage is separate property . . . ."). The trial 

court ruled that the husband was only entitled to a return of his 

$26,634.22 separate funds used to purchase the home.2 The trial 

court did not determine whether any portion of the $49,000 

increase in value was attributable to a passive appreciation in 

market value of property, exclusive of improvements or additions 

resulting from marital property contributions, or significant 

personal effort. The question we decide here is whether the wife 

has overcome the presumption that the increase in value of the 

separate property is separate. 

 Code § 20-107.3(A)(1) expressly provides that the increase 

in value of the retraceable separate funds shall be separate 

unless the non-owning party proves that all or a portion of the 

increase was due to the contribution of marital funds or 

significant personal effort. The trial court erred by failing, 

as an initial matter, to determine whether and to what extent 

husband's separate share increased in value. 

 

 2In returning husband's initial investment, the trial court 

relied upon our unpublished opinion in Hauger v. Hauger, 1995 Va. 

App. Lexis 206. The trial court misconstrued the holding in 

Hauger. In Hauger, we merely rejected the wife's claim that the 

trial court erred by awarding to husband as his separate property 

the retraceable separate funds that he had contributed to 

purchase the marital home. We did not have the occasion to 

decide whether the husband was entitled to the passive increase 

in value of his separate property. 
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 We have not adopted an exclusive method for determining how 

to apportion the increase in value of retraced separate property. 

 In Hart v. Hart, 27 Va. App. 46, 65-66, 497 S.E.2d 496, 505 

(1998), we approved the "Brandenburg formula" as one method for 

ascertaining the value of the separate and marital components of 

hybrid property in relation to the original contributions. 

Although other methods may be equally acceptable, where the 

separate and marital funds were commingled into "newly acquired" 

property, by applying the "Brandenburg formula," which we deem 

appropriate on these facts, we hold that the husband's 

presumptive separate share in the hybrid property valued at 

$110,000 is $48,748.16.3

 Thus, the increase in value of 

husband's retraceable separate funds is $22,113.88.4 Under the 

provisions of Code § 20-107.3(A), the $22,113.88 increase in 

husband's separate share is presumed to be separate property. 

The trial court should have applied the Brandenburg method, or 

another acceptable method, to initially calculate the increase in 

value of husband's separate property share of the marital 

residence. 

 We next consider whether the wife, as non-owning spouse, 

proved that all or a portion of the increase in value of the 

 

 3$110,000 X ($26,634.22 ÷ $60,100) = $48,748.16. See Hart, 

27 Va. App. at 65-66, 497 S.E.2d at 505 (formula that apportions 

the marital and non-marital components of hybrid property). 

 4$48,748.16 - $26,634.22 = $22,113.88. 
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retraced separate property was transmuted to marital property. 

Wife contends she contributed marital property and significant 

personal efforts that resulted in the substantial increase in 

value of the home by (1) applying her real estate acumen and 

persuading husband to purchase the home and (2) "fixing up" the 

home with new "carpet, paint, [and] wallpaper" purchased with 

marital funds. 

A. Wife's Real Estate "Acumen"

 At the commissioner's hearing, wife testified that she was 

"studying to be a realtor" when the parties purchased the marital 

home. Wife testified that she determined that purchasing the 

house for $60,100 was a "good deal" and "felt like [the house] 

was worth maybe $79,000." She encouraged husband to invest in 

the home using his $26,634.22 equity from the partition sale. In 

this regard, wife contends that applying her "real estate 

knowledge and acumen" and urging husband to invest in the house 

were "significant" personal efforts that resulted in the 

immediate appreciation of the parties' $60,100 investment to 

$79,000, thereby proportionately increasing the value of 

husband's separate interest in the house. Wife's argument fails 

for two reasons. 

 First, wife failed to prove that her real estate knowledge 

and efforts to persuade husband to acquire the property resulted 

in an increase in the value of husband's separate property. See

Code § 20-107.3(A)(3)(a)(ii). The parties purchased the house 
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for $60,100 through a court-approved partition sale. Wife 

offered no evidence as to the value of the property before or 

after the parties purchased the house. She offered no appraisal, 

tax records, or proof of comparable sales to establish the value. 

 She offered no evidence that she had training or experience in 

real estate valuation, or that she was capable of appraising real 

estate or preparing a market study or comparison of sales to 

determine the fair market value of the property. Wife's 

unsubstantiated assertion that she "felt" the house was worth 

$79,000 should be accorded no weight. Other than her conclusory 

assertion that she had some real estate "acumen," wife offered no 

evidence to prove the property was more valuable than the price 

paid or that husband relied upon her "personal efforts" in 

investing in the property. See Code § 20-107.3(A)(3)(a) 

("personal efforts must . . . result in substantial appreciation" 

(emphasis added)). 

 Second, even if wife possessed "some real estate knowledge 

and 'acumen,'" her suggestion to purchase the property was not a 

contribution of a "significant personal effort" as required by 

Code § 20-107.3(A). The statute contemplates a significant

personal effort that substantially affects the value of property, 

not merely a joint decision that may have been influenced by one 

spouse. "Significant" is defined as "having or likely to have 

influence or effect; deserving to be considered; important, 

weighty, notable." Webster's Third New International Dictionary, 
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2116 (1981). Wife's efforts were not "significant" factors 

affecting the value of the property. Accepting her assertion and 

according it its greatest evidentiary value, the evidence proves 

nothing more than that she and her husband decided to purchase 

the property because she thought it would be a good investment. 

Moreover, her estimation that buying the house was a sound 

financial decision was not a "personal effort" as contemplated by 

the statute. She failed to prove that her "intellectual skill, 

creativity, or managerial, promotional or marketing activity 

[was] applied directly to the separate property." Code 

§ 20-107.3(A)(3)(a) (defining "personal effort"). 

B. Painting, Wallpapering, and Carpeting

 Wife also contends the house appreciated in value from 

$79,000 on the date of purchase to $110,000 because she "fixed 

[it] up" over the course of the twelve-year marriage. She 

attributes none of the increase in value to a passive increase in 

market value but rather claims that the entire increase was due 

to her personal efforts. Wife testified that she was actively 

involved in painting, wallpapering, and installing carpet and 

that she expended $5,000 of marital funds to make such 

"improvements." She argues the substantial increase in value of 

the home, including husband's separate property interest, was 

attributable to contributions of marital property and her 

significant personal efforts in fixing up the home. We find no 

merit in her argument. 
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 A party does not meet the burden of proving that 

"contributions of marital property . . . were made" by merely 

establishing that marital funds were expended for customary 

maintenance and upkeep of the property. The term "contribution 

of marital property" within the meaning of the statute 

contemplates an improvement, renovation, addition, or other 

contribution which, by its nature, imparts intrinsic value to the 

property and materially changes the character thereof. See

Spindler v. Spindler, 558 N.W.2d 645, 650-51 (Wis. Ct. App. 

1996). By contrast, although the customary care, maintenance, 

and upkeep of a residential home may preserve the value of the 

property, it generally does not add value to the home or alter 

its character and no evidence to the contrary was presented. 

 Here, wife's vague claim that over the years she expended 

$5,000 for paint, wallpaper, and carpet proved nothing more than 

that she used marital funds for the home's customary care, 

maintenance, and upkeep. She proved neither when the 

expenditures were made nor the amounts she spent for paint, 

wallpaper, or carpet. Although installing the carpet may, in 

some instances, be an addition or improvement that constitutes a 

"contribution of marital property," wife's evidence failed to 

prove when and the extent to which carpet was added, the amount 

of marital funds expended for the carpet, or that installing 

carpet significantly increased the value of the home, including 

husband's separate property interest. Accordingly, wife failed 
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to prove that "contributions of marital property . . . were made" 

to the marital home. 

 Wife further failed to prove that her personal efforts in 

fixing up the house were "significant" and "resulted in a 

substantial appreciation" of value to the home. For personal 

labor contributed to property to be "significant" and to cause or 

result in a substantial increase in value, without proof to the 

contrary, the personal labor must amount to more than customary 

care, maintenance, and upkeep. Wife's evidence that at some time 

during the twelve years of marriage she personally painted, 

wallpapered, and carpeted parts of the house does not prove a 

"significant" personal effort under the facts of this case. 

These activities constitute part of the customary maintenance and 

upkeep that homeowners typically perform in order to preserve the 

home's value; they do not by their nature impart value to the 

home. 

 There is no credible evidence in the record which supports a 

finding that wife's efforts in painting, wallpapering, or 

carpeting the home "resulted in [the] substantial appreciation" 

in the value of the house. Wife's evidence consisted of the 

following statements: 

 Q: And you did the fixing up of the house; 

is that correct? 

 A: I bought the carpet, paint, the 

wallpaper, did the labors, yes. 

 Q: All of those things? 

 A: Yes. 
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 Q: And then, apparently, it increased 

through your efforts to $110,000? 

 A: I feel like that is a fair price, yes. 

As noted, wife had the initial burden to prove that her personal 

efforts "resulted" in the increase in value of the home. Wife's 

claim that her efforts in "fixing up the house" caused the home 

to appreciate in value from $79,000 to $110,000 is unsupported by 

the evidence and fails to meet her burden under the statute. 
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CONCLUSION

 For the foregoing reasons, we hold that wife failed to meet 

her burden of proving that either contributions of marital 

property or significant personal efforts resulted in the increase 

in value of the marital residence, including husband's separate 

property interest. The trial court erred in failing to determine 

the increase in value of the husband's separate property and in 

classifying the total increase in value of the marital home as 

marital property. We hold that husband's separate property 

interest in the home is $48,748.16. The remaining $61,251.84 

value in the marital home is marital property and must be 

allocated between the parties in accordance with the factors 

specified in Code § 20-107.3(E). Although the trial court 

previously allocated the marital share equally between the 

parties, the court did so after having erroneously found wife's 

customary efforts in the care, maintenance, and upkeep 

sufficiently "significant" to have caused the substantial 

increase in value. Notwithstanding wife's failure to meet her 

burden of proving that the increase in value of husband's 

separate property was transmuted to marital property, she is 

entitled to consideration under Code § 20-107.3(E)(2) in 

determining whether her "contributions, monetary and nonmonetary 

. . . [to the] care and maintenance of the marital property" 

preserved the value of the marital home. Accordingly, we reverse 

the trial court's decision and remand the case to the trial court 
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with directions to enter judgment for husband in the amount of 

$48,748.16 for his separate property interest and to reconsider 

its equitable distribution of the $61,251.84 marital share of the 

home in accordance with the Code § 20-107.3(E) factors. 

 Reversed and remanded.