COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Beales and AtLee

Argued at Richmond, Virginia

DIANE K. GASPA

MEMORANDUM OPINION* BY

v. Record No. 1019-17-2 JUDGE RICHARD Y. ATLEE, JR.

MARCH 13, 2018

THOMAS P. GASPA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Cheryl V. Higgins, Judge

Jason P. Seiden (Michie Hamlett Lowry Rasmussen & Tweel 

PLLC, on briefs), for appellant.

Lair D. Haugh (Haugh & Haugh, P.C., on brief), for appellee.

Diane Gaspa (“wife”

1

) appeals an equitable distribution award from the Circuit Court of 

Albemarle County. She argues that the circuit court committed reversible error when it 

considered “inadmissible hearsay evidence” of the value of her retirement accounts and awarded 

Thomas Gaspa (“husband”) a portion of those accounts. We affirm.

I. BACKGROUND

“On appeal, we view the evidence in the light most favorable to husband, the prevailing 

party below, and grant him ‘all reasonable inferences fairly deducible therefrom.’” Bajgain v. 

Bajgain, 64 Va. App. 439, 443, 769 S.E.2d 267, 269 (2015) (quoting Anderson v. Anderson, 29 

Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)). At an evidentiary hearing related to the 

 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 We use the designations “wife” and “husband” for clarity, recognizing that such terms 

actually describe the parties’ former, rather than current, legal relationship.

UNPUBLISHED
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equitable distribution of the parties’ assets, the circuit court was called upon to value wife’s 

retirement accounts. The alleged error concerns the following portion of the trial transcript:

[Husband’s Attorney:] And you are still employed by the 

University of Virginia; is that 

correct?

[Wife:] Yes.

[Husband’s Attorney:] And the entire time you’ve been 

employed since you returned to 

Charlottesville at the University of 

Virginia you’ve been married; is that 

correct?

[Wife:] Yes.

[Husband’s Attorney:] And you have various retirement 

accounts through the University of 

Virginia, do you not?

[Wife:] Yes.

[Husband’s Attorney:] You have previously produced this 

retirement plan breakdown dated 

October 1st, 2015?

[Wife:] Yes.

[Husband’s Attorney:] I’d move this into evidence.

[Wife’s Attorney]: Object to hearsay.

. . . .

THE COURT: [Counsel], then how else would these 

documents be admitted? She 

admitted it is her retirement account; 

correct?

[Wife’s Attorney]: Yes, ma’am.

THE COURT: So what is the basis for the hearsay?

[Wife’s Attorney]: Just because they’re your statements 

doesn’t make them admissible, Your 

Honor, with all due respect. I could 
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present my bank records, credit 

cards. Just because they’re sent to 

me doesn’t get around the hearsay 

objection.

THE COURT: So I’m going to overrule the hearsay 

objection. I agree, except that these 

are documents in her name as 

opposed to somebody else’s 

documents. So I find there is a 

different basis for her to verify the 

accuracy. So the [c]ourt is going to 

admit them as Defense Exhibit No. 

2.

([Husband]’s Exhibit No. 2 received into evidence.)

[Wife’s Attorney]: Yes, ma’am.

THE COURT: And your exception is noted, 

[Counsel].

[Wife’s Attorney]: I may have some rebuttal on just this 

issue because it’s now applicable 

because I wasn’t expecting you to 

overrule the objection.

THE COURT: I completely agree.

[Husband’s Attorney:] These documents actually show that 

they are three different types of 

product that are involved in your 

retirement account; is that correct?

[Wife:] Yes.

[Husband’s Attorney:] This would be the earning up to 

October—[o]r it’s the statement 

dated October 1st, 2015?

[Wife:] Yes.

[Husband’s Attorney:] And you all separated in November 

of 2015?

[Wife:] Yes.
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The circuit court used Exhibit 2 to value wife’s retirement accounts, and awarded husband a 

portion of those accounts. On appeal, wife claims that “[h]aving no admissible evidence of 

value, the [circuit] court could not distribute the asset[s].”

II. ANALYSIS

We review the circuit court’s decision for abuse of discretion. Robinette v. Robinette, 10 

Va. App. 480, 486, 393 S.E.2d 629, 633 (1990) (equitable distribution awards reviewed for 

abuse of discretion); Davis v. Commonwealth, 65 Va. App. 485, 499, 778 S.E.2d 557, 564 

(2015) (decisions concerning the admissibility of evidence are reviewed for abuse of discretion). 

“Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” 

Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015) (quoting Grattan v. 

Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). Furthermore, “[a] party relying 

upon an exception to the hearsay rule for the admissibility of evidence bears the burden of 

persuading the court that the evidence falls within the exception” and “the standard of proof to 

meet that burden is by a preponderance of the evidence.” Lynch v. Commonwealth, 272 Va. 

204, 207-08, 630 S.E.2d 482, 484 (2006). Finally,

Factual questions must usually be resolved to determine whether 

the proponent of the evidence has carried that burden, and those 

antecedent or predicate facts are to be determined by the trial court 

alone. If the court admits the evidence, the credibility of the 

witnesses and the weight of the evidence are to be determined by 

the jury.

Id. at 208, 630 S.E.2d at 484. Although the circuit court never used the phrase “adoptive 

admission,” the words the circuit court used show that it was the basis upon which the exhibit 

was admitted. We hold that the circuit court did not abuse its discretion in admitting the exhibit 

on that basis.

The Rules of Evidence define hearsay as “a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the 
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matter asserted.” Va. R. Evid. 2:801(c). A “statement” can be “an oral or written assertion.” 

Va. R. Evid. 2:801(a). Rule 2:802 states the general rule governing the use of hearsay: “Hearsay 

is not admissible except as provided by these Rules, other Rules of the Supreme Court of 

Virginia, or by Virginia statutes or case law.”

Rule 2:803(0)(B) sets out the concept of “adoptive admissions,” and states, in relevant 

part, that the hearsay rule does not exclude a “statement offered against a party that is . . . a 

statement of which the party has manifested adoption or belief in its truth.”

It is well settled that statements made in the presence and hearing 

of another, to which he does not reply, are admissible against him 

as tacit admissions of their truth or accuracy, when such statements 

are made under circumstances naturally calling for reply if their 

truth is not intended to be admitted. This principle rests upon that 

universal rule of human conduct which prompts one to repel an 

unfounded imputation or claim.

Tillman v. Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773 (1946). “The test for an adoptive 

admission ‘is whether [persons] similarly situated would have felt themselves called upon to 

deny the statements affecting them in the event they did not intend to express acquiescence by 

their failure to do so.’” Weinbender v. Commonwealth, 12 Va. App. 323, 325, 398 S.E.2d 106, 

107 (1990) (alteration in original) (quoting Owens v. Commonwealth, 186 Va. 689, 699, 43 

S.E.2d 895, 899 (1947)); see also Wooten v. Bank of Am., N.A., 290 Va. 306, 311 n.5, 777 

S.E.2d 848, 851 n.5 (2015) (“[A] duty to speak arises . . . in some situations[] to avoid the 

conclusion that a party has made an adoptive admission, see Rule 2:803(0)(B).”); Charles E.

Friend & Kent Sinclair, The Law of Evidence in Virginia § 15-36[b], at 1097 (7th ed. 2012) (“A 

declaration in the presence of a party to a cause becomes evidence, as showing that the party, on 

hearing such a statement, did not deny its truth; for, if he is silent when he ought to have denied, 

there is a presumption of his acquiescence.” (quoting Sanders v. Newsome, 179 Va. 582, 592, 19

S.E.2d 883, 887 (1942))).
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In Lynch, the Supreme Court observed that, although “[m]ost of the adoptive admissions 

that we have considered have been characterized as tacit admissions, or admissions by silence,” 

one “may manifest adoption of a statement made by another in any number of ways, including 

words, conduct, or silence.” 272 Va. at 209, 630 S.E.2d at 484-85. “In some cases, the 

defendant’s words or conduct may supply most, if not all, of the predicate facts that the 

Commonwealth must prove to bring the evidence within the adoptive admission exception.” Id.

at 209, 630 S.E.2d at 485.

Here, wife’s responses to the questions from husband’s attorney, taken in the light most 

favorable to husband, “manifested . . . [her] belief in . . . [the] truth” of the exhibit. 

Va. R. Evid. 2:803(0)(B). Wife agreed she had UVA retirement accounts, responding “Yes” 

when husband’s attorney asked whether she had “various retirement accounts through the 

University of Virginia.” Wife also agreed that she produced in her discovery responses the

document summarizing these retirement accounts. Finally, she agreed that the statement 

summarizing the retirement accounts, which husband’s attorney showed to wife as she was 

testifying, was dated October 1, 2015—just before the parties’ separation. All of these answers 

by wife support the conclusion that the exhibit constituted an adoptive admission.

“[T]he abuse of discretion standard requires a reviewing court to show enough deference

to a primary decisionmaker’s judgment that the court does not reverse merely because it would 

have come to a different result in the first instance.” Lawlor v. Commonwealth, 285 Va. 187, 

212, 738 S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 

F.3d 315, 322 (4th Cir. 2008)). With this deference in mind, we cannot find that the circuit court

abused its discretion here.
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III. CONCLUSION

Because the circuit court did not abuse its discretion when it admitted Exhibit 2 into 

evidence, we affirm its decision.

Affirmed.