COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

DANIEL LAWSON ANDERSON 

 OPINION BY 

v. Record No. 0691-98-2 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 11, 1999 

CHERYL KERNER ANDERSON 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

Lawrence D. Diehl (Susanne L. Shilling; 

Shilling & Associates, on brief), for 

appellant. 

Julie M. Cillo (Phoebe P. Hall, on brief), 

for appellee. 

 In this appeal, Daniel Lawson Anderson ("husband") argues 

the trial court erred by: 1) excluding the testimony of Dr. 

Arnold Stolberg under the confidentiality provisions of Code 

§ 8.01-581.22; 2) failing to grant him joint legal custody of 

the parties' child, Elyse; 3) denying his request for additional 

holiday visitation; 4) classifying two IRA funds as marital 

property; 5) failing to order or address the issue of the 

division of tangible personal property in its equitable 

distribution award; and 6) failing to award him an equitable 

distribution exceeding one-half of the marital property. Wife 

alleges cross-error, contending the trial court erred in finding 

that husband did not waste marital funds in an IRA account with 
Crestar Bank. Both parties ask for an award of attorneys’ fees 

incurred on appeal; husband also asks for costs. For the 

reasons stated below, we reverse in part and affirm in part. 

 I. 

 BACKGROUND 

 We review the evidence in the light most favorable to wife, 

the party prevailing below and grant all reasonable inferences 

fairly deducible therefrom. See Gamer v. Gamer, 16 Va. App. 

335, 340, 429 S.E.2d 618, 622 (1993). 

 The parties married on October 20, 1984 and had one child, 

Elyse, born November 7, 1989. The parties separated on January 

31, 1996. Wife filed a bill of complaint for divorce on 

February 9, 1996, charging cruelty and constructive desertion. 

Husband's cross-bill alleged desertion. 

 The trial court entered preliminary orders regarding 

custody, child support, and the preservation of the parties' 

assets on February 23, May 16, and November 7, 1996, and 

February 13, 1997, respectively. 

 On May 28, 1997, the trial court issued a letter opinion 

granting wife a no-fault divorce. It also awarded her sole 

legal custody of Elyse with visitation to husband based on an 

existing schedule; ruled that husband's American Funds and 

Crestar IRA accounts were marital property; found that husband 

did not meet his burden of tracing as to the funds in these 

accounts; found that husband used marital funds in the Crestar 

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account for legitimate post-separation expenses; and awarded an 

equal division of marital property. Upon motions to reconsider 

its initial ruling, the court issued a second letter opinion on 

October 13, 1997, again holding that the American Funds and 

Crestar IRA accounts were marital property and that husband had 

failed to satisfy his burden of proof on the retracing issue. 

The court entered a final decree of divorce, incorporating its 

previous findings, on February 26, 1998. 

 II. 

EXCLUSION OF DR. STOLBERG'S TESTIMONY 

 Husband argues the trial court erred by excluding the 

testimony of Dr. Arnold Stolberg pursuant to the confidentiality 

provisions of Code § 8.01-581.22, having concluded that he acted 

as a mediator in the custody dispute between the parties.1 We 

agree and reverse on that ground. 

 Shortly after their separation in January 1996, the parties 

agreed to meet with Dr. Stolberg, a licensed clinical 

psychologist. Dr. Stolberg subsequently prepared a report, 

recommending the court award joint legal and physical custody of 

Elyse to the parties based on information gathered over the 

course of the parties' sessions. Although husband sent this 

 1

Code § 8.01-581.22 states that "[a]ll memoranda, work 

products and other materials contained in the case files of a 

mediator or mediation program are confidential." Code 

§ 8.01-581.21 defines "mediator" as "an impartial third party 

selected by agreement of the parties to a controversy to assist 

them in mediation." 

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report to the court, the report was not admitted into evidence. 

When husband proposed to have Dr. Stolberg testify with respect 

to his findings, wife objected, contending Dr. Stolberg acted as 

a mediator between the parties and was thus precluded from 

testifying under the confidentiality provisions of Code 

§ 8.01-581.22. 

 Wife filed a brief setting forth her position on the issue.2 

In her brief, wife proffered that Dr. Stolberg suggested the 

parties use him to "mediate their parenting arrangements, 

advising them that he had worked out his own personal custody 

arrangements in mediation and that it was a good way to resolve 

things." Wife also stated that Dr. Stolberg "worked with [the 

parties] to help them work out an agreement as to how they would 

parent their child as separated parents, and [wife] relied on 

him as a neutral mediator during this process." The only other 

evidence wife offered to show that Dr. Stolberg acted as a 

mediator were documents describing him as such, including: 1) a 

letter from husband suggesting they make "use of Dr. Stolberg to 

mediate non-monetary issues between [them]"; 2) a billing 

statement provided by husband that describes Dr. Stolberg's 

services as "Child Counseling/Psychological Evaluation/Divorce 

 

 2The parties' evidence on this matter originates exclusively 

from written documentation submitted to the court in support of 

their respective positions; the court heard no oral testimony on 

the issue. The court entered an order disposing of this issue 

based on the "written argument" of counsel. 

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Mediation"; and 3) a proposed order prepared by husband's 

counsel that describes the parties' meetings with Dr. Stolberg 

as "mediation."3 Eventually, wife discontinued the sessions 

because she felt Dr. Stolberg was "pressing her to agree to 

matters she did not feel were in her child's best interest 

. . . ." 

 Husband's written proffer filed with the court reflects 

discussions held with Dr. Stolberg respecting his role in the 

case. Dr. Stolberg explained that he is a licensed 

psychotherapist who does psychotherapy, not mediation. 

According to husband, wife was first to consult Dr. Stolberg, a 

specialist in counseling children of divorcing parents, for the 

purpose of providing counseling to the parties' child. Dr. 

Stolberg asked to interview both parents in support of his 

counseling goals for the child. Over a period of eight months, 

the parties attended twenty-eight sessions with Dr. Stolberg, 

either individually or together. Some of the sessions were held 

with the child and one of the parents in attendance. Dr. 

Stolberg indicated that "what he does is to teach parents how to 

work together to promote their child's development and to 

minimize problems that already exist and that his work is 

 

 3

The order, which was never entered, states: This day came 

the parties in person, by counsel, and having representing [sic] 

to the Court that certain matters have been agreed to between them 

in mediation, respecting the care and custody of their daughter 

. . . ." 

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exclusively focused around remediation of problems and 

prevention of future problems." He characterized mediation as 

"directed to equity and fairness in the resolution of disputes" 

and distinguished it as a process in which the psychological 

adjustment of the parties is not a consideration. According to 

Dr. Stolberg, the parties were aware that he was not mediating 

their disputes "at all times in their meetings with him." 

 Barbara Hulburt, an expert in mediation, filed a letter 

with the court in response to a request made by husband's 

attorney in which she discussed the differences between 

mediation, as defined by the Code of Virginia, and therapy. 

Hulburt wrote: 

[a] mediator serves only as facilitator, 

that is, that the mediator is in charge of 

the process and the parties in control of 

the subject matter[, that] mediation is 

characterized by a limited number of 

meetings instead of an on-going 

relationship[, and that] mediation is 

defined through a series of discre[te] 

stages which make up a very specific 

process. . . . [F]undamentally, . . . a 

mediator is a process expert. The parties 

to the dispute do not seek the mediator out 

because of any substantive expertise--in 

fact, it would be inappropriate for a 

mediator to offer any opinion with respect 

to the "best" outcome of the mediation. 

 As a general principle, evidence that tends to prove a 

matter which is properly at issue in a case is generally 

admissible. Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 

896 (1983) ("Any fact, however remote, that tends to establish 

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the probability or improbability of a fact in issue is 

admissible."). See Charles E. Friend, The Law of Evidence in 

Virginia § 11.2 (4th ed. 1993). Such evidence "should be 

excluded only when its probative value is outweighed by policy 

considerations which make its use undesirable in the particular 

case." Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 

310, 311 (1995). See Friend, supra at § 11.2. Responsibility 

for evaluating whether the probative value of evidence is 

outweighed by policy considerations mitigating against 

admissibility rests within the discretion of the trial court. 

See Farley, 20 Va. App. at 498, 458 S.E.2d at 311-12. The party 

seeking to establish the existence of a privileged communication 

carries the burden of proof. See Commonwealth v. Edwards, 235 

Va. 499, 509, 370 S.E.2d 296, 301 (1988) (stating that the 

proponent of an attorney-client privilege has the burden of 

proving "that an attorney-client relationship existed, that the 

communications under consideration are privileged, and that the 

privilege was not waived"); Robertson v. Commonwealth, 181 Va. 

520, 540, 25 S.E.2d 352, 360 (1943) (finding that the party 

seeking to avoid production of a document on the ground that it 

is a privileged communication has the burden of establishing his 

contention). 

 We find that wife did not satisfy her burden of proving the 

communications with Dr. Stolberg were privileged because the 

evidence fails to support the trial court's conclusion that Dr. 

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Stolberg acted as a mediator in the dispute between the parties 

on the issues of custody and visitation. The only evidence wife 

presented on the issue of Dr. Stolberg's role was her 

understanding of that role and the characterization she or 

others had placed on it. Absent from wife's case was 

substantive evidence from which the trial court could conclude 

that Dr. Stolberg used a facilitative, rather than a 

therapeutic, problem solving methodology. See Code

§ 8.01-581.21 (defining "mediation" as a process by which a 

mediator assists and facilitates two or more parties to a 

controversy in reaching a mutually acceptable resolution of a 

controversy). Wife's description of Dr. Stolberg as a mediator 

cannot substitute for evidence that he, in fact, acted as a 

mediator in the parties' custody dispute. See Edwards, 235 Va. 

at 509, 370 S.E.2d at 301. 

 Furthermore, husband's evidence regarding Dr. Stolberg's 

role shows it to be wholly inconsistent with mediation. Dr. 

Stolberg described the sessions with the parties and their child 

as psychotherapeutic, the focus of which was directed to the 

child's developmental needs and the parties' relationship with 

her. To that end, a wide variety of psychological tests and 

evaluations were administered to husband. Dr. Stolberg 

described his work as "most specifically addressed toward 

remediation in this case because of the child's increased 

anxiety," having identified "four pathogenic processes which 

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concerned him as a psychotherapist." He also focused on 

addressing the relationship between wife and child through the 

therapeutic process. 

 Dr. Stolberg's role as described contrasts broadly with 

that delineated in Hulburt's letter: 

In contrast [to a mediator], a therapist is 

sought out for the knowledge, experience, 

and expertise he or she brings to the 

subject matter of the dispute. While a 

therapist may do problem-solving work on 

particular issues with clients, it is based 

on the input of the therapist as an expert 

in the subject matter of the particular 

problem (relationships, psychological 

development, child rearing, etc.). The 

mediator, as facilitator, may help the 

parties see that they need to seek out such 

expert advice . . . but does not offer such 

advice himself. 

* * * * * * * 

In a situation in which a subject-matter 

expert (i.e. a psychologist, therapist, or 

social worker) is sought out for the purpose 

of giving advice and counsel with respect to 

a particular problem, it would be 

inappropriate to label the work done with 

that expert as mediation if: (a) it 

involved advice from the mental health 

professional; (b) it was entered into as an 

evaluation or as therapy; (c) it was entered 

into without any formal agreement to mediate 

or any other indication that the parties and 

the therapist considered it a mediation. 

Here, the evidence, including wife's testimony that Dr. Stolberg 

was "pressing" her to reach agreement on matters relating to 

Elyse, shows that Dr. Stolberg's relationship with the parties 

was that of therapist, not mediator. We find no foundation for 

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the trial court's conclusion that Dr. Stolberg mediated the 

parties' dispute. 

 For these reasons, we find the trial court erred in 

excluding Dr. Stolberg's testimony pursuant to Code 

§ 8.01-581.22. Because Dr. Stolberg’s expected testimony 

encompassed matters relating to the psychological status of the 

parties and the child, the parties' relationship with the child, 

the parties' parenting styles, and other issues relevant to 

custody and visitation, we find the error was not harmless. See

Edwards v. Commonwealth, 10 Va. App. 140, 143, 390 S.E.2d 204, 

206 (1990). Accordingly, we reverse and remand.4

 III. 

CLASSIFICATION OF IRA ACCOUNTS 

 Husband next contends the trial court erred by classifying 

two IRA accounts, one with American Funds and the other with 

Crestar, as marital property. Husband contends the American 

Funds account is entirely his separate property and the Crestar 

account is part marital and part separate property. Husband 

admits the American Funds and Crestar accounts were established 

during the parties' marriage and prior to their separation. 

Husband contends, however, he presented sufficient evidence to 

 

 4Because the decision of the trial court is reversed and 

remanded for the purpose of considering erroneously excluded 

evidence on the issues of custody and visitation, we do not reach 

husband's allegations of error regarding the court's disposition 

of these issues. 

- 10 -
trace the funds in the American Funds and Crestar accounts back 

to two pre-marital Keogh accounts, which are presumed to be 

separate property. See Barnes v. Barnes, 16 Va. App. 98, 104, 

428 S.E.2d 294, 299 (1993). We disagree. 

 At trial, husband testified that he opened two Keogh 

accounts with Heritage Savings & Loan Association prior to 

marrying wife. Husband then testified to a series of 

post-marriage transfers and deposits involving the Heritage 

accounts. These transactions involved the creation of several 

new accounts and the movement of these funds from one account to 

the next before they ultimately reached the American Funds and 

Crestar accounts at issue here. Husband admitted commingling 

his allegedly separate funds with marital funds over the course 

of the marriage. In support of his testimony, husband relied on 

a flow chart, which the court received as demonstrative 

evidence, and certain financial documents to trace the source of 

his allegedly separate funds in the American Funds and Crestar 

accounts back to his pre-marital Keogh accounts. Husband 

introduced the chart and financial documents as Exhibit 8 at a 

deposition on April 9, 1997, explaining what they purported to 

show at that time. 

 We find no error in the trial court's conclusion that 

husband presented insufficient evidence of tracing and no error 

in the court's classification of the funds at issue as marital 

property. Husband failed to prove by a preponderance of the 

- 11 -
evidence that any portion of the funds in the American Funds and 

Crestar accounts are his separate property. See Code 

§ 20-107.3(A)(3)(d)-(e); Barker v. Barker, 27 Va. App. 519, 531, 

500 S.E.2d 240, 246 (1998); Rahbaran v. Rahbaran, 26 Va. App. 

195, 207, 494 S.E.2d 135, 141 (1997). 

 We find it unnecessary to recite every step of the 

complicated series of transactions leading to the deposit of the 

funds at issue into the American Funds and Crestar accounts. 

For the purposes of our decision, it is sufficient to recite the 

following relevant evidence pertaining to each account. 

 As to the American Funds account, husband claims he 

established the account on May 23, 1986 with a roll over deposit 

of $5,000 of allegedly separate funds from another IRA account 

with Investors Savings. Husband contends he made no further 

deposits or contributions to the American Funds account after 

1986 and claims its balance, $13,831.26, as separate property, 

the result of passive interest earnings. Assuming without 

deciding that appellant's claim regarding the deposit of $5,000 

of separate property is true, the evidence does not support his 

assertion that the balance of the American Funds account is his 

separate property. 

 Before the trial court, husband offered only one financial 

statement showing the activity in the American Funds account 

after 1986. This statement shows the account's activities 

during 1996 and a balance of $13,831.26 on December 31, 1996. 

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Husband presented no other statements regarding the activity in 

this account over the preceding nine years of its existence, 

including any statement showing the rate of interest that it may 

have earned. Thus, husband's claim that no other contributions 

were made to the account and that the account's growth was 

solely attributable to passive interest earnings rested on his 

testimony and the demonstrative flow chart alone. "It is well 

established that the trier of fact ascertains a witness' 

credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

witness' testimony." Street v. Street, 25 Va. App. 380, 387, 

488 S.E.2d 665, 668 (1997) (en banc). Furthermore, the flow 

chart, as a demonstrative, or illustrative, exhibit that played 

no actual part in the events before the court and that husband 

offered to explain and clarify his testimony, had no independent 

probative value. See Kehinde v. Commonwealth, 1 Va. App. 342, 

347, 338 S.E.2d 356, 358 (1986) (approving of the use of 

illustrative evidence "to clarify [a] witness' explanation and 

to insure a common understanding between the witness and [the 

trier of fact] as to the events which took place"); Saunders v. 

Commonwealth, 1 Va. App. 396, 397-98, 339 S.E.2d 550, 551 (1986) 

(indicating that photographs introduced for the purpose of 

illustrating a witness' testimony do not constitute substantive 

evidence in the case); Friend, supra at § 13.1 (defining 

illustrative evidence as that which "played no part in the 

- 13 -
events of the case but which is introduced to assist the jury in 

understanding what happened in the case" and "to demonstrate the 

meaning of a witness' testimony . . . "). See also United 

States v. Paulino, 935 F.2d 739, 752 (6th Cir.) (holding that 

charts summarizing documents or testimony may be admitted as 

demonstrative evidence under Rule 611(a) and "should be 

accompanied by a limiting instruction which informs the jury of 

the summary's purpose and that it does not constitute 

evidence"), cert. denied, 502 U.S. 914 (1991); Sykes v. Floyd, 

308 S.E.2d 498, 499 (N.C. Ct. App. 1983) (stating that 

photographs introduced to illustrate testimony are not 

admissible as substantive evidence); Smith v. Ohio Oil Co., 134 

N.E.2d 526, 530 (Ill. App. Ct. 1956) ("Demonstrative evidence 

. . . is distinguished from real evidence in that it has no 

probative value in itself, but serves merely as a visual aid to 

the jury in comprehending the verbal testimony of a witness."). 

It follows that the trial court was also entitled to give the 

flow chart no weight. See Jurado v. Jurado, 892 P.2d 969, 

975-76 (N.M. Ct. App. 1995) (finding that any error in the 

admission of demonstrative exhibits calculating the rates of 

return on two properties was harmless because the trial court 

did not rely on the exhibits in determining an award). In 

short, the trier of fact determines the credibility and weight 

of the evidence. It was therefore entitled to give no weight to 

husband's testimony that the funds in the American Funds account 

- 14 -
were maintained as separate property, particularly in the 

absence of documentary evidence establishing the integrity of 

the funds as separate property. We accordingly find no error in 

the court's refusal to classify the American Funds account as 

husband’s separate property. 

 As to the Crestar account, husband opened a new account 

with Investors Savings in 1988 with $5,070.88 of admittedly 

marital property. Husband offered an annual financial statement 

showing the initial deposit and appellant's interest earnings in 

1988. Subsequently, Crestar Bank bought Investors, thus 

converting husband's account into the Crestar account at issue. 

Husband contends, in 1989, he rolled over the balance of an IRA 

account with Dominion Federal Savings, containing marital and 

separate funds, into the Crestar account.5 At the end of 1996, 

the Crestar account contained $18,744.92, of which husband 

claims $3,561.40 as separate property, the portion of separate 

property contributed from the Dominion Federal account plus 

passive interest earnings. Husband offered one other statement, 

which verifies the balance of the Crestar account at the end of 

1996 and shows the account's activities during the last quarter 

of 1996, but nothing further. 

 

 5

Husband rolled over $6,752.95 from the Dominion Federal 

account into the Crestar account, of which he claims $2,263.37 was 

his separate property. 

- 15 -
 Husband's tracing evidence with respect to this claim 

suffers the same infirmity as that which exists with respect to 

his claim of separate property in the American Funds account. 

We assume for the purpose of this discussion that a portion of 

the funds husband rolled over from the Dominion Federal account 

were sufficiently identified as separate. No documentation, 

however, shows that the claimed separate funds were deposited in 

the Crestar account in 1989. Moreover, other than the two 

statements showing the account's initial deposit in 1988 and the 

account's balance at the end of 1996, respectively, husband 

offered no documentation of the activity within the 

Investors/Crestar account, including what rate of interest the 

account might have enjoyed. Thus, other than husband's 

testimony and his flow chart, there is no evidence that husband 

deposited separate funds from Dominion Federal into the Crestar 

account, no evidence of the activity within the Crestar account 

for a period of nearly eight years, and no evidence 

corroborating husband's testimonial evidence that the growth of 

the Crestar account after 1988 was solely passive in nature, the 

result of interest earnings. In short, there is no basis upon 

which to identify what portion of this account was husband's 

separate property at the time of the equitable distribution 

hearing. 

 For the foregoing reasons, we affirm the trial court's 

finding that husband failed to meet his burden to trace the 

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funds in the American Funds and Crestar accounts to a 

contribution of separate property and the court's classification 

of these funds as marital property. 

 IV. 

TANGIBLE PERSONAL PROPERTY 

 Husband next contends the trial court erred by failing to 

order or address the division of tangible personal property in 

its equitable distribution award. We find no merit in husband's 

contention. 

 During depositions, the parties stipulated that they had 

"determined not to attempt to resolve the division of tangible 

personalty within the home at this time . . . and that [they 

would] not present additional evidence regarding the value to 

th[e] Court." The parties further agreed to "work out the 

division of all the tangible personalty." 

 However, during the parties' final appearance before the 

court on April 22, 1997, husband's counsel asked the court to 

equitably distribute the parties' tangible personal property. 

Husband's counsel presented a document to the court itemizing 

the personal property of the parties, appraising the property's 

value, and presenting a proposed distribution plan.6 In response 

to husband's document, the court noted: 

More and more in these cases I'm getting 

mixed signals. The problem is those mixed 

 

 6This document, however, was not admitted into evidence. 

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signals result in equities to one side or 

the other or both. I'm going to put counsel 

on notice right now, I'm going to deal with 

the personal property with the evidence that 

I have before me. 

* * * * * * * 

 As I recall during the depositions, counsel 

agreed, they stated that they would deal 

with personal property outside the Court's 

forum, but today I get this and I note -- 

and by this I'm talking about the handout 

that was provided by counsel for [husband]. 

It deals with the appraisals from Owen 

Valentine and other appraisals. I don't 

know what I'm supposed to work with that or 

not work with that. 

 Apparently attempting to accommodate husband's request, the 

court invited the parties to file a "wish list" within five 

days, summarizing their positions as to the distribution of 

personal property. The court stated, "Give me some direction on 

what you want me to do with this personal property, . . . either 

deal with it or not deal with it, that's fine, but I can't deal 

with mixed signals." The parties then had the following 

dialogue: 

[WIFE'S COUNSEL]: I think counsel has 

agreed on the record that we will not have 

the Court value the personal property and 

that we will divide it through the 

parties. . . . 

THE COURT: I need to know what you want me 

to do, and again, I'm getting mixed signals. 

[HUSBAND'S COUNSEL]: I think we need to 

talk about it. 

THE COURT: Let me know in five days what 

you want to do . . . . 

- 18 -
 Within the allotted time, husband filed a "Request for 

Settlement" that proposed three alternative distributions of the 

parties' assets, including tangible personal property. The 

record contains no evidence of what, if anything, wife filed 

with the court. 

 In its letter opinion of May 28, 1997, the court found that 

the parties agreed they would work out the equitable 

distribution of personal property, citing the parties' 

stipulation. Although noting the parties had been unable to 

agree on the distribution of personal property, the court 

declined to address the issue, stating it would not include 

personal property in its equitable distribution because "the 

parties have failed to submit sufficient evidence." The court 

reiterated this finding in its final decree. 

 Although Code § 20-107.3 mandates that trial courts 

determine the ownership and value of all real and personal 

property upon request of either party, "'[t]he burden is always 

on the parties to present sufficient evidence to provide the 

basis on which a proper determination can be made, and the trial 

court in order to comply . . . must have the evidence before it 

. . . to grant or deny a monetary award.'" Bowers v. Bowers, 4 

Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (quoting Hodges v. 

Hodges, 2 Va. App. 508, 516, 347 S.E.2d 134, 139 (1986)). When 

the parties have had a reasonable opportunity to provide the 

- 19 -
necessary evidence to prove the class or value of property but 

have failed to do so by lack of diligence, a court may make a 

monetary award without giving consideration to the class or 

value of every item of property. See id. at 618, 359 S.E.2d at 

551. The court must give parties reasonable opportunity to 

develop and present evidence regarding the class and value of 

property, must not arbitrarily refuse to classify or value 

property when sufficient evidence exists, and must not 

arbitrarily reject credible evidence of value. See id.

 Here, the parties were given opportunity over the course of 

the proceedings to present evidence regarding the class and 

value of their tangible personal property. The parties agreed, 

however, to withdraw this issue from the court, to reach 

agreement themselves with respect to distribution, and to 

present no evidence on the issue. At the latest possible stage 

of the proceedings, husband attempted, over wife's objection, to 

renege on the parties' stipulation, asking the court to classify 

and value the parties' personal property. The court properly 

declined to do so. See Bauer v. Harn, 223 Va. 31, 36, 286 

S.E.2d 192, 194 (1982) ("Absent a challenge to the authority of 

an attorney to make them, stipulations are definitive of 

issues."); Southeastern Tidewater Area Manpower Authority v. 

Coley, 221 Va. 859, 862, 275 S.E.2d 589, 591 (1981) (stating 

that stipulations should be encouraged and "that a party should 

not be permitted to assert at trial a contention which is 

- 20 -
contrary to a stipulation to which that party, by counsel or 

otherwise, has freely and in good faith agreed"); McLaughlin v. 

Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970) (citing 

favor for the use of stipulations and other pretrial techniques 

designed to narrow the issues and expedite trial or settlement 

of litigation). 

 Based on their agreement to withdraw the distribution of 

personal property from the court's consideration and resolve the 

issue themselves, the parties presented no evidence of the items 

to be distributed or their value. In the absence of evidence 

upon which to base an equitable distribution of the parties' 

tangible personal property, no distribution could be made and 

the court did not err in failing to address the issue. See

Bowers, 4 Va. App. at 619-20, 359 S.E.2d at 552. Under the 

circumstances of this case, we find that the court did not abuse 

its discretion in deciding "to deal with the personal property 

with the evidence . . . before" it and by declining to relieve 

the parties of their proffer to reach agreement with respect to 

this issue. We accordingly affirm the court's decision on this 

issue. 

 V. 

 EQUITABLE DISTRIBUTION 

 Husband next contends the trial court erred by failing to 

award him an equitable distribution exceeding one-half of the 

parties' marital property. Husband asserts the trial court did 

- 21 -
not correctly apply the statutory factors set forth in Code 

§ 20-107.3(E). 

 In its letter opinion of May 28, 1997, the court equally 

divided the marital assets and liabilities of the parties, 

stating it "considered the factors in Code § 20-107.3(E) in 

light of the evidence." The court provided no particular 

findings regarding the applicable factors. 

 Husband cites the following evidence in support of his 

position: 1) his ownership and extensive improvements to the 

parties' first residence prior to marriage; 2) his contribution 

of eighty-nine percent of the parties' salaried income; 3) his 

testimony that he performed fifty percent of the non-monetary 

contributions to the well-being of the family; and 4) his 

post-separation monetary contributions to the parties' property 

in the sum of $19,830. 

 Wife responds the court based its decision on substantial 

evidence and in proper consideration of the statutory factors. 

Wife asserts: 1) she stayed home for several years, by 

agreement, to care for Elyse; 2) her time at home enabled 

husband to focus on his career and to travel for extended 

periods; 3) she contributed to the maintenance and care of 

marital property, including the marital home; 4) she made 

monetary contributions prior to the birth of Elyse; and 5) 

husband treated her abusively throughout their marriage. 

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 "In reviewing an equitable distribution award on appeal, we 

have recognized that the trial court's job is a difficult one, 

and we rely heavily on the discretion of the trial judge in 

weighing the many considerations and circumstances that are 

presented in each case." Klein v. Klein, 11 Va. App. 155, 161, 

396 S.E.2d 866, 870 (1990). Unless the record shows that the 

judge has abused his or her discretion by misapplying the 

statutory factors, the judge's determination will not be 

reversed on appeal. See id.

 Based on our review of the record, we find that the trial 

court did not abuse its discretion by equally distributing the 

marital property in this case. See Code § 20-107.3(E) (stating 

the court shall consider, inter alia, the duration of the 

parties' marriage, the monetary and non-monetary contributions 

of each party to the well-being of the family, the monetary and 

non-monetary contributions of each party to the acquisition, 

care, and maintenance of marital property, and the circumstances 

contributing to the dissolution of the marriage). The parties 

were married for over twelve years before permanently separating 

in 1996. For the first four years of their marriage, wife 

worked full-time outside the home. In 1988, wife left her job 

to increase the probability of becoming pregnant. After the 

birth of Elyse in November 1989, wife remained at home to care 

for Elyse until July 1996. Husband continued working, 

increasing his personal income during the years wife stayed at 

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home. It is undisputed that, in connection with his employment, 

husband spent significant periods of time away from his family 

after Elyse's birth. Further, the parties stipulated that 

wife's "income capacity" would be higher today if she had 

continued working. Although the parties' testimony conflicted 

as to the share of household responsibilities that each assumed 

during their marriage, the credibility of witnesses and the 

weight to be given their testimony is a matter committed to the 

sound discretion of the trial court. See Street, 25 Va. App. at 

387, 488 S.E.2d at 668; see also Hurt v. Hurt, 16 Va. App. 792, 

799, 433 S.E.2d 493, 498 (1993) (finding the trial court did not 

err in choosing to accept the testimony of husband's witness, 

notwithstanding conflicting testimony of wife's witness, when 

determining classification of property). Similarly, the trial 

court was entitled to find wife's testimony regarding husband's 

abusive treatment during the marriage credible and to reject 

husband's testimony regarding wife's failure to provide 

emotional support or household services in determining the 

circumstances leading to the dissolution of the marriage that 

affected the value of the marital estate. See Street, 25 Va. 

App. at 387, 488 S.E.2d at 668. Thus, our review of the record 

reveals sufficient evidence on which the trial court could have 

based its equal distribution of the parties' marital property. 

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 VI. 

ALLEGED WASTE OF MARITAL FUNDS BY HUSBAND 

 Wife contends the trial court erred in ruling that husband 

did not waste $15,183.52 of marital funds in the Crestar IRA 

account after their separation on January 31, 1996. We find 

this argument to be without merit. 

 Husband's evidence showed that the Crestar account 

contained $18,744.92 at the end of 1996. Husband acknowledges 

that he withdrew $15,288.58 of marital funds from the Crestar 

account on March 10, 1997 and testified that he deposited these 

funds into a savings account with Crestar Bank on the same day. 

Husband further testified he subsequently spent these marital 

funds to pay marital debts, including two mortgages and two 

credit card bills, and legal expenses incurred by him during the 

parties' divorce proceedings. In support of his testimony, 

husband submitted two lists detailing each expenditure as well 

as copies of various financial statements, receipts, money 

orders, and cashier's checks, which verified husband's lists and 

testimony regarding how these funds were spent. 

 Waste or dissipation of assets occurs when "one spouse uses 

marital property for his own benefit and for a purpose unrelated 

to the marriage at a time when the marriage is undergoing an 

irreconcilable breakdown." Amburn v. Amburn, 13 Va. App. 661, 

666, 414 S.E.2d 847, 850 (1992). As husband does not dispute 

that he withdrew the marital funds at issue and put them into an 

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account under his sole dominion and control, husband had the 

burden to establish by a preponderance of the evidence that the 

funds were used for a proper purpose. See Alphin v. Alphin, 15 

Va. App. 395, 402, 424 S.E.2d 572, 576 (1992). "Once the 

aggrieved spouse shows that marital funds were withdrawn or used 

after the breakdown, the burden rests with the party charged 

with dissipation to prove that the money was spent for a proper 

purpose." Clements v. Clements, 10 Va. App. 580, 587, 397 

S.E.2d 257, 261 (1990). We have previously held that marital 

funds spent for living expenses, attorney's fees for the divorce 

proceedings, and other necessities of life while the parties are 

separated do not constitute dissipation. See Decker v. Decker, 

17 Va. App. 12, 19, 435 S.E.2d 407, 412 (1993); Alphin, 15 Va. 

App. at 403, 424 S.E.2d at 576. 

 Here, husband provided sufficient evidence for the court to 

conclude that he did not waste $15,288.58 of marital funds in 

the Crestar account. Husband provided the court with two 

detailed lists showing each expenditure of the funds at issue. 

These expenditures included payments on two mortgages and two 

credit card debts incurred during the marriage and payment of 

husband's legal fees incurred over the course of the divorce 

proceedings. Husband submitted financial documentation 

supporting each and every expenditure detailed by his lists and 

by his testimony. Wife presented no evidence to suggest the 

Crestar funds were used for any other purpose. The trial court 

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found husband's evidence credible, stating in its final decree 

that husband "proved he spent these proceeds on legitimate 

post-separation expenses." As the court's ruling is supported 

by credible evidence, that ruling will not be disturbed on 

appeal. See Alphin, 15 Va. App. at 403, 424 S.E.2d at 576; 

Amburn, 13 Va. App. at 667, 414 S.E.2d at 851. 

 For the foregoing reasons, we reverse the trial court's 

ruling excluding Dr. Stolberg's testimony as privileged under 

Code § 8.01-581.22 and remand the issues of custody and 

visitation for renewed consideration in light of this holding. 

As to husband and wife's remaining allegations of error, we 

affirm the trial court's decision.7

 Affirmed in part 

and reversed in part.

 

 7Based on the circumstances of this case, we deny the parties' 

respective requests for an award of attorneys' fees and costs 

related to this appeal. 

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