COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Haley and Petty 

Argued by teleconference 

STEVEN DOUGLAS NACK 

 

v. Record No. 2219-06-3 

 

DEBRA DICKERSON EDWARDS NACK 

 MEMORANDUM OPINION*

 BY 

DEBRA DICKERSON EDWARDS NACK JUDGE ROBERT J. HUMPHREYS 

 SEPTEMBER 11, 2007 

v. Record No.: 2288-06-3 

STEVEN DOUGLAS NACK 

 FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Colin R. Gibb, Judge 

 Edwin C. Stone (Stone & Kellerman, P.C., on briefs), for Steven 

Douglas Nack. 

 Randolph D. Eley, Jr., for Debra Dickerson Edwards Nack. 

 Steven Douglas Nack (“husband”) appeals from a final divorce decree entered August 11, 

2006. Husband argues that the trial court erred by classifying: (1) a Legg Mason investment 

portfolio; (2) a 1987 Mercedes-Benz; and (3) a 1993 Lexus, buffalo, and assorted farm 

equipment as marital property.1

 Wife cross-appeals, arguing that the trial court erred in holding 

that the parties’ prenuptial agreement barred her from an award of attorney’s fees. For the 

following reasons, we reverse the trial court regarding the classification of the Mercedes-Benz 

 *

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

1

 The farm equipment included a John Deere tractor, a Kawasaki mule farm utility 

vehicle, water jugs, a palpation cage, and a “buffalo squeeze chute.” 
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and the Lexus,2

 and affirm the trial court regarding the investment portfolio, buffalo, and farm 

equipment. We also affirm the trial court regarding wife’s request for attorney’s fees. 

ANALYSIS 

Husband contends that the trial court erred by failing to retrace the separate funds that 

husband contributed to the Legg Mason account, and by classifying the two automobiles, 

buffalo, and farm equipment as marital property. 

When reviewing a trial court’s decision on appeal, we view the evidence in the light most 

favorable to the prevailing party, granting it the benefit of any reasonable inferences. Wright v. 

Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002). That principle requires us to 

“‘discard the evidence of [husband] in conflict with that of [wife], and regard as true all the 

credible evidence favorable to [wife] and all fair inferences that may be drawn’ from the credible 

evidence.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) 

(quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)). An 

appellate court will not reverse a trial court’s equitable distribution “unless it appears from the 

record that the chancellor has abused his discretion, that he has not considered or has misapplied 

one of the statutory mandates, or that the evidence fails to support the findings of fact underlying 

his resolution of the conflict in the equities.” von Raab v. von Raab, 26 Va. App. 239, 246, 494 

S.E.2d 156, 159 (1997) (quoting Robinette v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 

633 (1990)). 

A. Legg Mason

Husband first argues that the trial court erred in failing to retrace the separate funds he 

contributed to the joint Legg Mason account. Because the Cornerstone account, which later 

 2

 Although husband makes his arguments concerning the Mercedes and the Lexus in two 

separate questions presented, we address the arguments concerning both vehicles together due to 

their analytical similarities. 
 - 3 - 

became the Legg Mason account, and the National Life annuity were created around the same 

time, under nearly identical circumstances, husband reasons the trial court erred in classifying 

them differently. We disagree. 

Code § 20-107.3(A)(2)(i) defines marital property as “all property titled in the names of 

both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by 

[Code § 20-107.3(A)(3)],” which recognizes the concept of part marital and part separate, or 

“hybrid” property. See Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 140 

(1997). Code § 20-107.3(A)(3) “presupposes that separate property has not been segregated but, 

rather, combined with marital property.” Id. at 207, 494 S.E.2d at 141. When such assets are 

combined by the contribution of one to another, 

resulting in the loss of identity of the contributed property, the 

classification of the contributed property shall be transmuted to the 

category of property receiving the contribution. However, to the 

extent the contributed property is retraceable by a preponderance 

of the evidence and was not a gift, such contributed property shall 

retain its original classification. 

Code § 20-107.3(A)(3)(d). 

 “In order to trace the separate portion of hybrid property, a party must prove that the 

claimed separate portion is identifiably derived from a separate asset. Whether a transmuted 

asset can be traced back to a separate property interest is determined by the circumstances of 

each case[.]” Asgari v. Asgari, 33 Va. App. 393, 402-03, 533 S.E.2d 643, 648 (2000) (citations 

omitted). However, “if a party ‘chooses to commingle marital and non-marital funds to the point 

that direct tracing is impossible,’ the claimed separate property loses its separate status.” 

Rahbaran, 26 Va. App. at 208, 494 S.E.2d at 141 (quoting Melrod v. Melrod, 574 A.2d 1, 5 (Md. 

App. 1990)). “Even if a party can prove that some part of an asset is separate, if the court cannot 

determine the separate amount, the ‘unknown amount contributed from the separate source 
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transmutes by commingling and becomes marital property.’” Id. at 208-09, 494 S.E.2d at 141 

(quoting Brett R. Turner, Equitable Distribution of Property 268 (1994)). 

Here, husband deposited his separate assets from White City and his Fidelity account into 

the parties’ joint checking account, thereby commingling separate and marital assets.3 The 

parties continuously deposited and withdrew unspecified sums of marital funds from the account. 

Husband provided no account balances, deposit slips, cancelled checks, or any other 

documentation that would have enabled the court to retrace his separate assets.4 Thus, in late 

1997 and early 1998, when husband and wife withdrew funds from their joint checking account 

to acquire their joint Cornerstone account, which later became the Legg Mason account, “the 

identity of husband’s separate funds had been lost in countless unspecified transactions involving 

marital funds, resulting in the irreversible transmutation of separate into marital property.” 

Asgari, 33 Va. App. at 403, 533 S.E.2d at 648. 

The distinction between the Legg Mason portfolio and the National Life annuity is 

readily apparent. The Legg Mason accounts were jointly titled, yet the National Life annuity 

 3

 The dissent notes that “[h]usband insists that the parties maintained separate finances 

and that the accounts at both First Virginia and Cornerstone were his accounts, set up as joint 

accounts purely for convenience.” This assertion is of no moment, because wife testified to the 

contrary at trial, the trial court implicitly accepted wife’s testimony over husband’s, and our 

standard of review compels us to view the facts in the light most favorable to wife as the party 

who prevailed below. Black v. Powers, 48 Va. App. 113, 119, 628 S.E.2d 546, 549 (2006). 

4

 In reasoning that the Cornerstone account “included part marital, part separate and part 

hybrid property,” the dissent notes two checks to husband from his parents totaling $10,464.73, 

deposited into the joint checking account on the same day as the first payment to Cornerstone, and 

submitted into evidence by wife. In citing these checks as evidence by which the trial court could 

have retraced a portion of husband’s assets, the dissent ignores wife’s testimony that these checks 

represented gifts “put into [their] joint account [and] used for anything.” Thus, viewing the 

evidence most favorably to wife, these checks represent joint gifts made from husband’s parents to 

both husband and wife as a couple, and therefore the checks from husband’s parents to husband are 

not evidence from which the trial court could retrace husband’s separate assets. Furthermore, wife 

testified that these checks were not deposited into the joint account specifically to fund the 

Cornerstone account. 
 - 5 - 

was titled only in husband’s name. The trial court could thus retrace husband’s White City 

funds, which husband deposited into the parties’ joint checking account, but later reemerged as 

distinctly separate assets when husband used them to purchase the separate annuity. Because the 

Legg Mason accounts were jointly titled, husband was unable to prove that his White City and 

Fidelity funds regained any separate identity in the Legg Mason accounts, and thus the trial court 

was unable to retrace these funds as husband’s separate assets. The trial court, therefore, did not 

abuse its discretion by classifying the Legg Mason portfolio as marital property, and we affirm 

the trial court on this issue. 

B. The 1987 Mercedes and the 1993 Lexus

Husband next argues that the trial court erred in classifying the 1987 Mercedes as marital 

property, because it was his separate property prior to the marriage, remained titled in his name, 

and was not a gift. He also argues that the Lexus is his separate property pursuant to the 

prenuptial agreement. We agree with husband that both automobiles remain his separate 

property. 

Property acquired by either party before the marriage is presumed to remain separate 

property. See Barnes v. Barnes, 16 Va. App. 98, 104, 428 S.E.2d 294, 299 (1993). As stated 

above, however, Code § 20-107.3(A)(3)(d) provides: 

When marital property and separate property are commingled by 

contributing one category of property to another, resulting in the 

loss of identity of the contributed property, the classification of the 

contributed property shall be transmuted to the category of 

property receiving the contribution. However, to the extent the 

contributed property is retraceable by a preponderance of the 

evidence and was not a gift, such contributed property shall retain 

its original classification. 

1. The Mercedes

In this case, the commissioner recommended the classification of the Mercedes as marital 

property. In her report, the commissioner noted that around 1999 or 2000, wife began to drive 
 - 6 - 

the 1987 Mercedes SL, a vehicle that had previously “sat in the garage for 10 or 12 years and 

‘rotted.’ From that point on, [wife] was the primary driver of the Mercedes SL until the parties’ 

separation. Joint funds were used to . . . pay for the upkeep and maintenance of the . . . 

Mercedes.” The classification of the Mercedes as marital property solely on this basis was an 

abuse of discretion by the trial court, and we reverse that decision. 

Here, wife made payments for upkeep and maintenance of the Mercedes, thereby 

contributing marital property to husband’s separate property. Wife’s payments therefore 

transmuted to separate property, the category of property receiving the contribution, and the 

burden then falls upon wife to retrace her payments. Under this statute, wife’s payments for the 

upkeep of the Mercedes make the Mercedes hybrid property at best. However, the prenuptial 

agreement, in which each party “relinquishe[d] any and all claims and rights that he or she may 

have had, may now have, or may hereafter acquire against the property of the other by virtue of 

their marriage or pursuant to Section 20-107.3 of the Code of Virginia[,]” provides that the 

Mercedes, listed in the prenuptial agreement as husband’s separate property acquired prior to the 

marriage, remain separate property in any event, regardless of wife’s financial contributions 

towards the vehicle’s upkeep. Thus, the Mercedes remains husband’s separate property, and the 

trial court erred in classifying the Mercedes as marital property. Accordingly, we reverse the 

trial court’s classification of the Mercedes.5

2. The Lexus

Husband next argues that the Lexus is titled in his name and, thus, remains his separate 

property under the agreement. 

 5

 Husband also argues that the Mercedes was not a gift to wife. However, neither the 

commissioner nor the trial court made any finding that husband had gifted the Mercedes to wife. 

Thus, we do not address this issue on appeal. 
 - 7 - 

“The owner of an automobile is the party who has legal title to it.” McDuffie v. 

Commonwealth, 49 Va. App. 170, 175, 638 S.E.2d 139, 141 (2006); see also Code § 46.2-100. 

“A certificate of title serves not only as a substitute recording system but also as evidence of 

ownership.” McDuffie, 49 Va. App. at 175-76, 638 S.E.2d at 141; see also Travelers Indem. Co. 

v. Nationwide Mut. Ins. Co., 227 F. Supp. 958, 963 (W.D. Va. 1964); Bolden v. Commonwealth, 

28 Va. App. 488, 492-93, 507 S.E.2d 84, 86 (1998). 

Husband had sole legal title to the Lexus. Husband is thus the vehicle’s owner, and as a 

result, the Lexus is his separate property. Pursuant to the prenuptial agreement, wife forfeited 

any interest she may have had in the Lexus by virtue of her financial contributions towards the 

vehicle. The Lexus remains husband’s separate property, and the trial court abused its discretion 

in classifying it as marital property. Thus, we reverse the judgment of the trial court in this 

regard as well. 

C. The Buffalo and Farm Equipment

Husband’s final contention on appeal is that the trial court erred in classifying the buffalo 

and assorted farm equipment as marital, because the prenuptial agreement prohibited the creation 

of marital property. We affirm the trial court’s classification of the buffalo and farm equipment 

as marital property. 

“Property acquired during the marriage is presumptively marital, unless shown to be 

separate property.” Robinson v. Robinson, 46 Va. App. 652, 662, 621 S.E.2d 147, 152 (2005); 

Code § 20-107.3(A)(2)(iii). Husband concedes that the parties used their joint checking account 

to purchase all of these items during the marriage. However, as noted above, husband argues 

that the parties’ joint First Virginia checking account was only for convenience and that the 

parties intended to keep their money separate. Thus, husband reasons that the joint checking 

account was his “de facto” separate account. Accordingly, husband concludes that the buffalo 
 - 8 - 

and farm equipment were all purchased from separate funds and, therefore, remain his separate 

property under the relinquishment of claims section of the prenuptial agreement.6 However, the 

only evidence husband presented that the First Virginia account was, in fact, intended to be his 

separate property was his own testimony. As stated above, wife disputed the testimony, and the 

chancellor implicitly rejected husband’s testimony. In fact, wife testified that she deposited a 

portion of her paycheck into the First Virginia account, and offered into evidence several checks 

from husband’s parents made to her as gifts of their estate that were deposited into the account. 

Viewing the evidence in the light most favorable to wife, we reject husband’s assertion 

that the First Virginia account was comprised solely of husband’s separate property. Because 

husband and wife purchased the farm equipment and buffalo with marital property, and because 

husband did not meet his burden of retracing his separate funds from these purchases, see Code 

§ 20-107.3(A)(3)(d), we affirm the trial court’s classification of this property as marital. 

 D. Attorney’s Fees

Wife argues on cross-appeal that the trial court erred in holding that the prenuptial 

agreement barred her from an award of attorney’s fees from husband. We disagree. 

“Antenuptial agreements, like marital property settlements, are contracts subject to the 

rules of 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). “‘Where an agreement is complete on its face, is plain and unambiguous in its 

terms, the court is not at liberty to search for its meaning beyond the instrument itself[.]’” 

Va. Elec. & Power Co. v. N. Va. Reg’l Park Auth., 270 Va. 309, 316, 618 S.E.2d 323, 326 

 6

 As stated above, this section provides that the parties “release[] and relinquish[] any and 

all claims and rights that he or she may have had, may now have, or may hereafter acquire 

against the property of the other by virtue of their marriage or pursuant to Section 20-107.3 of 

the Code of Virginia.” 
 - 9 - 

(2005) (quoting Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)). Furthermore, 

“[c]ontracts are not rendered ambiguous merely because the parties disagree as to the meaning of 

the language employed by them in expressing their agreement.” Wilson v. Holyfield, 227 Va. 

184, 187, 313 S.E.2d 396, 398 (1984). Whether the terms of a contract are ambiguous is a 

question of law that we review de novo. See id.

The prenuptial agreement plainly states that, “[i]n the event of the dissolution of marriage, 

the parties hereto agree to be responsible for their own respective attorney’s fees and costs and to 

waive and release any claim against the other for legal fees and costs.” Wife nevertheless argues 

that “the contract as a whole contemplated that only fees to dissolve the marriage would be 

barred” and that the provision itself “does not expressly bar or waive attorney’s fees to enforce 

other rights created under the agreement.” In other words, wife argues that the prenuptial 

agreement prevents her from seeking attorney’s fees only in litigating the dissolution of the 

marriage itself and, thus, does not prevent her from seeking fees stemming from the equitable 

distribution accompanying the divorce. We reject wife’s argument, finding no ambiguity in the 

clear and plain language of the prenuptial agreement, which prevents “any claim against the other 

for legal fees and costs.” We agree with the trial court that the prenuptial agreement “is clear and 

unambiguous in that neither party is responsible for the fees of the other.” Therefore, we hold that 

wife is not entitled to collect attorney’s fees from husband, and affirm the trial court. 

CONCLUSION 

For the reasons stated therein, we affirm the trial court’s classification of the Legg Mason 

account, buffalo, and farm equipment as marital property, and reverse the trial court’s classification 

of the Mercedes and Lexus as marital property. We also affirm the trial court’s holding that 
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husband and wife’s prenuptial agreement prohibits wife from collecting attorney’s fees from 

husband. We remand the case for further proceedings consistent with this opinion. 

Affirmed in part, 

reversed in part, and

remanded.
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Haley, J., concurring, in part, and dissenting, in part. 

 I respectfully dissent only as to the majority’s conclusion regarding the Legg Mason 

account. 

 The parties entered into a prenuptial agreement on September 4, 1992. Attached to that 

agreement was a schedule of their respective separate property. Husband’s separate property 

included stock in White City Electric Company (White City Electric) and an account at Fidelity 

Investments (Fidelity). The majority concludes that husband failed to trace this separate property 

into Legg Mason. I disagree. 

 The Legg Mason account at issue was funded in February 1999, by transfer from husband 

and wife’s joint investment account with Cornerstone Capital Management (Cornerstone). The 

source of funds in the Cornerstone account, therefore, is critical to our evaluation of this cause. In 

1997, husband received a distribution in the amount of $273,146 for his ownership of White City 

Electric stock, listed as husband’s separate property in the prenuptial agreement. Husband 

deposited the White City Electric distribution in a joint checking account at First Virginia Bank.7

 In 

addition to his salary and other income, the First Virginia Bank also included money received from 

husband’s Fidelity account (listed as his separate property in the prenuptial agreement) and money 

given by husband’s parents to both parties as tax-free gifts from their estate.8

 On September 7, 1997, husband and wife met with Gregory McCauley (McCauley) of 

Cornerstone to open a joint account, for the purpose of funding their retirement 10 to 15 years later. 

 7

 Throughout his testimony, husband insists that the parties maintained separate finances 

and that the accounts at both First Virginia and Cornerstone were his accounts, set up as joint 

accounts purely for convenience. In addition to the joint checking account at First Virginia, wife 

maintained a separate account at Blue Ridge Bank. 

8

 Both husband and his father argue that the gifts were intended to be for husband. 

Nevertheless, husband’s parents wrote several checks to wife for the purpose of passing their 

estate tax-free to the parties. On direct examination, husband explained that a portion of those 

gifts to wife, totaling “roughly $20,000,” was deposited into an investment account at Fidelity. 
 - 12 - 

To finance the Cornerstone account, husband and wife wrote three checks. First, on September 26, 

1997, wife wrote a check to Cornerstone in the amount of $20,000, drawn on the parties’ joint 

checking account at First Virginia.9 On December 15, 1997, wife wrote a second check from that 

account in the amount of $77,500. Shortly thereafter, husband wrote a check to Cornerstone from 

the same First Virginia account in the amount of $155,000. 

 Husband argues that the trial court erred in classifying the parties’ joint Legg Mason account 

as marital property. Because the Legg Mason account was financed with both separate and marital 

assets, the statutory guidelines for classification of commingled property necessarily apply. Code 

§ 20-107.3(A) provides, in pertinent part: 

(3) The court shall classify property as part marital property and 

part separate property as follows: 

* * * * * * * 

(d) When marital property and separate property are commingled 

by contributing one category of property to another, resulting in 

the loss of identity of the contributed property, the classification of 

the contributed property shall be transmuted to the category of 

property receiving the contribution. However, to the extent the 

contributed property is retraceable by a preponderance of the 

evidence and was not a gift, such contributed property shall retain 

its original classification. 

(e) When marital property and separate property are commingled 

into newly acquired property resulting in the loss of identity of the 

contributing properties, the commingled property shall be deemed 

transmuted to marital property. However, to the extent the 

contributed property is retraceable by a preponderance of the 

evidence and was not a gift, the contributed property shall retain its 

original classification. 

 9

 Wife offered evidence, in the form of a check register, to show that the parties deposited 

$20,038.73 into their First Virginia account to cover the first check written to Cornerstone on 

September 26, 1997. The checks deposited include: 1) $9,500 to husband from his mother; 

2) $9,500 to wife from husband’s parents; 3) $73 to husband and wife from the Commonwealth 

of Virginia Department of Taxation; and, 4) $964.73 to husband from his parents. 
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 In the cause at hand, husband may retain his separate property if he can show the property 

“is retraceable by a preponderance of the evidence and was not a gift.” Code § 20-107.3(A)(3)(h) 

states, “No presumption of gift shall arise under this section where (i) separate property is 

commingled with jointly owned property; (ii) newly acquired property is conveyed into joint 

ownership; or (iii) existing property is conveyed or retitled into joint ownership.” 

 In Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141 (1997), this Court 

held: 

In order to trace the separate portion of hybrid property, a party 

must prove that the claimed separate portion is identifiably derived 

from a separate asset. This process involves two steps: a party 

must (1) establish the identity of a portion of hybrid property and 

(2) directly trace that portion to a separate asset. 

“When a party satisfies this test, and by a preponderance of the evidence traces his or her separate 

contributions to commingled property, the code states that the contributed separate property ‘shall

retain its original classification.’” Hart v. Hart, 27 Va. App. 46, 68, 497 S.E.2d 496, 506 (1998). 

Husband can prevail, therefore, by sufficiently tracing the source of the Legg Mason funds to his 

separate property. 

 The Legg Mason account was initiated by a transfer of funds from the parties’ joint account 

at Cornerstone. Therefore, we must look to the source of the Cornerstone funds to determine 

whether husband’s separate property financed the Legg Mason account. 

 Husband submitted into evidence an IRS form 1099-MISC from tax year 1997, showing his 

receipt of $273,146 from White City Electric. Husband testified that the money he received from 

White City Electric was deposited into the parties’ joint account at First Virginia and it was used to 

finance the Cornerstone account. Wife corroborated that testimony. On direct examination, when 

asked how the couple arrived at the $155,000 figure for the final deposit to Cornerstone, wife stated 

that husband: 
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had monies that was [sic] put into the account from his father, 

which were large sums – White City Electric was part of it, or his 

father had given him some monies. And this was given to him, 

and he put it into our account . . . . And it was based upon our 

retirement, and the 155 was the amount that was agreed upon to go 

into it because I think that’s what was rolled over from the prior 

account. 

 Husband also testified that proceeds from his Fidelity account were contributed to the 

Cornerstone account. Wife corroborated that testimony, as well. When asked how the parties 

decided to contribute $77,500 in the second deposit to Cornerstone, wife explained, “[W]e just had 

made a larger deposit into our joint account, and this was from – actually investments that he had – 

a [F]idelity investment in Zurich, I believe. And they totaled about $80,000 . . . .” In the parties’ 

prenuptial agreement, the Fidelity account was listed as husband’s separate property. However, on 

direct examination, husband testified that, since the parties were married, “roughly $20,000” of 

wife’s money (gifts received from husband’s parents) had been deposited into the Fidelity account. 

 Regarding the parties’ initial deposit to Cornerstone, wife submitted into evidence a check 

register showing that, on the same day that wife wrote a $20,000 check to Cornerstone, a deposit 

was made to the parties’ joint account at First Virginia in the amount of $20,038.73, ostensibly to 

cover the check to Cornerstone. That deposit included a check from husband’s parents to wife for 

$9,500. The rest of the deposit included $73 to husband and wife from the Commonwealth of 

Virginia, and two checks to husband from his parents totaling $10,464.73. 

 The evidence overwhelmingly suggests, therefore, that the Cornerstone account included 

part marital, part separate, and part hybrid property. Both parties agree that husband’s White City 

Electric money, and proceeds from the Fidelity account, contributed to their joint account at 

Cornerstone. In the cause at hand, the total equity contributed to the Cornerstone account by the 
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parties equaled $252,500.10 Of this amount, however, husband withdrew $55,000 to purchase an 

annuity in his name. Therefore, the total contributed equity that was later transferred to the Legg 

Mason account equaled the difference, $197,500. At least a portion of that balance necessarily 

came from husband’s separate property. 

 After the Cornerstone funds were transferred to the Legg Mason account, three deposits 

were made to the Legg Mason account, totaling $26,008.33. Of this amount, wife’s separate 

property represented $2,500, or the undisputed amount that she contributed to the purchase of 

Microsoft and Yahoo stock. Husband’s separate property necessarily equaled $2,057.33. The 

remaining amount deposited to Legg Mason, $21,451, was marital property in the form of tax 

refund checks received by the parties for tax year 2001. These additions bring the value of the total 

contributed equity to $223,508.33 and further support the conclusion that the Legg Mason account 

included part wife’s separate property, part husband’s separate property, and part marital property. 

 It should be noted that the above analysis of the composition of the Legg Mason account, 

with respect to White City Electric and Fidelity, is based upon undisputed funds and documentary 

evidence. I would hold that husband traced those contributions of separate property into Legg 

Mason, that Legg Mason was part wife’s separate property, part husband’s separate property, and 

part marital property, and thus remand to the trial court to apportion the same. That conclusion is 

strengthened by the incongruous findings by the trial court: the determination, unappealed, that the 

annuity purchased with funds from Cornerstone was husband’s separate property, and the 

determination that Legg Mason, created by the transfer of all of Cornerstone’s assets, was wholly 

marital. The source of funds for both was the same. 

 10 This number represents the sum of the three deposits made to Cornerstone: $20,000, 

$77,500, and $155,000.