PRESENT: All the Justices 

JULIE ANDREWS UTSCH 

 OPINION BY 

v. Record No. 021987 JUSTICE DONALD W. LEMONS 

 June 6, 2003 

FRANCIS VINCENT UTSCH 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Shortly after his marriage to Julie Andrews Utsch (“Wife”), 

Francis Vincent Utsch1 (“Husband”) transferred title of their 

marital residence from his name solely to himself and his wife 

as tenants by the entirety. The conveyance was made by deed of 

gift and recited “love and affection” as consideration for the 

transfer. Additionally, the deed of gift recited that the 

conveyance was exempt from recordation taxes under Code § 58.1-

811(D).2 In the divorce and equitable distribution proceeding, 

the trial court held that the deed of gift was unambiguous and, 

consequently, that parol evidence concerning the circumstances 

surrounding the execution of the deed of gift was inadmissible. 

 1

 Mr. Utsch died during the pendency of his appeal to the 

Court of Appeals. Pursuant to Code § 8.01-20, the Court of 

Appeals retained jurisdiction “as if such event had not 

occurred.” This Court will retain jurisdiction under the same 

statute. 

2

 Code § 58.1-811(D) states the following: “No recordation 

tax shall be required for the recordation of any deed of gift 

between a grantor or grantors and a grantee or grantees when no 

consideration has passed between the parties. Such deed shall 

state therein that it is a deed of gift.” 
 On appeal, the Court of Appeals reversed the judgment of 

the trial court and held the following: 

 [A]lthough the deed is clear and unambiguous on 

its face as to [H]usband’s intent to transfer 

legal title of the marital residence to himself 

and [W]ife jointly as tenants by the entirety 

without consideration, it is not clear and 

unambiguous with regard to [H]usband’s intent to 

make a gift of the marital residence to the 

marital estate. Thus, the fact finder must 

consider not only the terms of the deed itself, 

but also other competent evidence of the 

circumstances surrounding its execution and 

delivery. 

 Consequently, we conclude the trial court 

erred in finding the language of the deed of gift 

unambiguous, in finding the deed of gift 

conclusive on its face to establish [H]usband’s 

donative intent, and in excluding the 

introduction of parol evidence relating to the 

circumstances surrounding the execution of the 

deed of gift. 

Utsch v. Utsch, 38 Va. App. 450, 463, 565 S.E.2d 345, 351-52 

(2002). We awarded Wife an appeal from the adverse judgment of 

the Court of Appeals. Because we hold that the deed of gift was 

unambiguous on its face, both for the purpose of retitling and 

proof of donative intent, parol evidence surrounding its 

execution was not admissible. 

I. Analysis 

 In equitable distribution proceedings, the determination of 

title to property is a separate inquiry from the classification 

of property for the purposes of making an award pursuant to Code 

§ 20-107.3. The case before the Court involves a narrow 

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question concerning the proof necessary to determine 

classification of separate property that has been subsequently 

retitled in the joint names of the parties. 

 Both Husband and Wife agree that the marital residence 

before retitling would have been classified as separate property 

pursuant to Code § 20-107.3(A)(1). However, Code § 20-

107.3(A)(2) provides in part that marital property consists of 

“all property titled in the names of both parties, whether as 

joint tenants, tenants by the entirety or otherwise, except as 

provided by subdivision A 3.” 

 Code § 20-107.3(A)(3)(f) provides the following: 

When separate property is retitled in the 

joint names of the parties, the retitled property 

shall be deemed transmuted to marital property. 

However, to the extent the property is 

retraceable by a preponderance of the evidence 

and was not a gift, the retitled property shall 

retain its original classification. 

The question presented in this appeal is whether the retitling 

in this case was a gift. If so, the marital residence is 

properly classified as marital property. If not, subject to 

proof of retracing, the marital residence retains its 

classification as separate property. 

 The burden of proof that the transfer was a gift is upon 

the party seeking to establish the gift. No presumption of gift 

arises from the act of retitling. Code § 20-107.3(A)(3)(g). 

Additionally, 

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[i]t is well settled that the law does not 

presume a gift and where a donee claims title to 

personal property by virtue of a gift inter

vivos, the burden of proof rests upon him to show 

every fact and circumstance necessary to 

constitute a valid gift by clear and convincing 

evidence. 

Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 631 (1968). 

Proof of donative intent, delivery, and acceptance are necessary 

to sustain the burden. Id., 159 S.E.2d at 632. In this case, 

only donative intent is in controversy. 

 The parties agree and the Court of Appeals held that the 

deed of gift was unambiguous concerning the intent to retitle 

the property. The Court of Appeals held that “[i]t does not 

necessarily follow, however, that [H]usband intended to convey 

the property into the marital estate and thus relinquish his 

separate interest in the property for the purposes of equitable 

distribution.” Utsch, 38 Va. App. at 461, 565 S.E.2d at 350. 

Further, the Court of Appeals held that “in considering 

equitable distribution, a trial court must consider all tendered 

competent evidence of the context in which a deed is executed 

and delivered in order to determine whether that deed effects a 

donative intent under Code § 20-107.3(A)(3)(f).” Id. In 

reaching these two holdings, the Court of Appeals added 

requirements to the elements of proof required under Code § 20-

107.3(A)(3)(f) and eliminated the parol evidence rule from 

application in determining a gift in the context of 

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classification for equitable distribution purposes. In each 

holding, the Court of Appeals erred. 

 Nowhere in Code § 20-107.3(A)(3)(f) is there a requirement 

of proof that a gift was intended for a particular purpose. The 

proof required under the statutory provision is simply that the 

transfer was a gift. As we have previously held in a case 

involving a grantor’s intent in a deed, “[i]f [the party] 

intended the deed to be operative for one purpose, he must be 

taken to have intended it to be operative for all purposes 

apparent on its face.” Capozzella v. Capozzella, 213 Va. 820, 

824, 196 S.E.2d 67, 70 (1973). 

 In determination of what is apparent on the face of a deed, 

we must consider the application of the parol evidence rule. 

Contrary to the holding of the Court of Appeals, nothing in the 

statutory scheme suggests that the parol evidence rule is not to 

be applied in the determination of donative intent for equitable 

distribution purposes. The legislature is fully capable of 

stating that the parol evidence rule does not apply to such a 

determination. In the absence of such a declaration, the courts 

should not supply it, particularly where such a rule of law has 

been routinely applied to interpret deeds in Virginia. See

Adams v. Alliant Techsystems, Inc., 261 Va. 594, 598-99, 544 

S.E.2d 354, 355-56 (2001). 

5
 “[T]he question whether a writing is ambiguous is not one 

of fact but of law.” Pyramid Dev., L.L.C. v. D&J Assocs., 262 

Va. 750, 754, 553 S.E.2d 725, 727 (2001) (quoting Langman v. 

Alumni Assoc. of the Univ. of Virginia, 247 Va. 491, 498, 442 

S.E.2d 669, 674 (1994)). Just as we are not bound by the trial 

court’s conclusions regarding an instrument’s ambiguity, neither 

are we bound by the conclusion of the Court of Appeals. Id. at 

754, 553 S.E.2d at 727. “[W]hen the language of a deed is 

‘clear, unambiguous, and explicit,’ a court interpreting it 

‘should look no further than the four corners of the instrument 

under review.’ ” Id., 553 S.E.2d at 728 (quoting Langman, 247 

Va. at 498-99, 442 S.E.2d at 674). 

 Within the four corners of the instrument in question in 

this case are the declaration that it is a “deed of gift,” the 

recitation that the conveyance is for “love and affection,” and 

the reference to Code § 58.1-811(D) permitting exception from 

recording taxes for gifts. We hold that the deed was 

unambiguous on its face and that the parol evidence rule applies 

to the determination at issue. The deed not only shows by clear 

and convincing evidence the intent to jointly title the marital 

residence, but it also shows the donative intent of Husband in 

making the transfer. 

6
 Failure to recognize the applicability of the parol 

evidence rule in this context would result in unacceptable 

uncertainty in the law. As one noted commentator observed: 

If [there were no parol evidence rule], no lawyer 

would be safe in advising upon the construction 

of a written instrument, nor any party in taking 

under it; for the ablest advice might be 

controlled, and the clearest title undermined, 

if, at some future period, parol evidence of the 

particular meaning which the party affixed to his 

words, or of his secret intention in making the 

instrument, or of the objects he meant to take 

benefit under it, might be set up to contradict 

or vary the plain language of the instrument 

itself. 

11 Richard A. Lord, Williston on Contracts § 33.1, at 556 (4th 

ed. 1999) (citation omitted). 

II. Conclusion 

 Because the Court of Appeals reversed the judgment of the 

trial court concerning its classification of the marital 

residence and ordered a remand, the court did not address 

Husband’s challenge to the trial court’s distribution of that 

property’s value in the equitable distribution award. Utsch, 38 

Va. App. at 464 n.4, 565 S.E.2d at 352 n.4. 

 For the reasons stated, we will reverse the judgment of the 

Court of Appeals and remand to the Court of Appeals for 

consideration of the remaining unaddressed issue. 

Reversed and remanded. 

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