COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, Alston and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

MARY C. SCHUMAN 

 MEMORANDUM OPINION*

 BY 

v. Record Nos. 0631-09-4, 1259-09-4 and JUDGE ROSEMARIE ANNUNZIATA 

 1260-09-4 APRIL 20, 2010 

 

DANIEL C. SCHUMAN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gaylord L. Finch, Jr., Judge 

 William B. Reichhardt (Colleen C. Sweeney; William B. Reichhardt & 

Associates, on briefs), for appellant. 

 Scott A. Surovell (Jason E. Braun; Surovell Markle Isaacs & Levy, 

PLC, on brief), for appellee. 

 

 Mary C. Schuman (wife) appeals the trial court’s ruling incorporating a premarital 

agreement into an order and its rulings in the subsequent equitable distribution hearing. Wife argues 

that the trial court erred by (1) incorporating the parties’ premarital agreement (the Agreement) 

pursuant to Code § 20-109.1 because the Agreement was not a valid contract and was a contract in 

contemplation of divorce under Virginia law; (2) applying the Agreement to the distribution of the 

parties’ property where the parties’ express intent was that it apply only upon their death and only 

upon proper evidence of each party’s contribution to the property; (3) failing to properly classify 

and value property, to apply the burden of proof in the tracing of assets, and to consider all the 

factors in Code § 20-107.3; (4) determining the lease entered into by the parties was valid; and 

(5) ordering the transfer of the Sarasota condominium to husband in contradiction to Code 

*

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
- 2 - 

 of 

o 

§ 20-107.3 and the parties’ Agreement. Daniel C. Schuman (husband) presents three issues

cross-error: the trial court erred (1) in awarding wife a separate interest in the Arlington 

condominium; (2) in classifying certain property as wife’s separate property; and (3) by failing t

consider monies wife removed from husband’s bank account. We affirm the trial court’s decision 

in part, reverse in part, and remand this case to the trial court for further proceedings consistent 

with this opinion. 

BACKGROUND 

 “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.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitt

 So viewed, the evidence showed that the parties met on June 26, 2003. At that time, wi

lived in a home known as Fiddler’s Green with her son. She purchased the home in 1989

couple of months, husband moved into Fiddler’s Green, and the parties agreed to make renovation

to the home. In September 2003, husband presented wife with a premarital agreement, which wife 

refused to execute. On March 12, 2004, husband purchased a condominium in Sarasota, Florida, 

which was titled as 

ed). 

fe 

. Within a 

s 

a joint tenancy with the right of survivorship. In May 2004, husband presented 

wife with a lease permitting him to occupy Fiddler’s Green for forty years. The parties signed the 

lease on May 16, 2004. The parties signed a premarital agreement on June 23, 2004, after 

exchanging and rejecting several earlier drafts of the agreement. The executed Agreement 

reconfirmed the lease and, among other matters, discussed the distribution of Fiddler’s Green and

the Sarasota condominium. 

 The parties married on June 26, 2004. During the marriage, the parties made renovations to 

Fiddler’s Green and paid off the mortgage on the home. The parties had two jointly titled bank 

accounts; wife primarily used one account, and husband primarily used the other. 
- 3 - 

st 

orce 

’ intent 

to 

asing its ruling on the “plain language of the agreement”: 

specifically provides that both parties have agreed that the court of 

incorporate the agreement in any decree or judgment in the event 

agreement were intended to apply not only in the event of the 

dissolved. 

The court then addressed wife’s argument that the Agreement’s terms were too indefinite to be 

The cou ambiguous,” 

nor did it ident upon which it relied that 

clarified their m

 On August 20, 2007, the parties separated, and wife filed a complaint for divorce on Augu

24, 2007. Prior to the entry of the final divorce decree, husband sought to incorporate the 

Agreement into an order and apply it to the distribution of some of the parties’ property. Wife 

objected and argued that the Agreement’s ambiguity precluded its incorporation into the div

decree. After initially concluding the Agreement was ambiguous with respect to the parties

and taking evidence, including parol evidence, the trial court ultimately granted husband’s motion 

incorporate the Agreement, b

In this case, the plain language of the agreement on page 6 

relevant jurisdiction shall be requested by both parties to 

of a divorce or separation action by either of the parties. 

By the language, it is clear to the court that the terms of this 

deaths of the parties, but also in the event that the marriage was 

enforceable. The trial court disagreed, noting: 

Having decided that threshold question, the next issue to be 

decided is whether the agreement is enforceable or unenforceable, 

because its terms are too indefinite or vague. 

This court does find that some of the terms are ambiguous. 

However, any ambiguity has been clarified by the evidence 

presented and the testimony of the parties.1

rt did not state the basis of its finding that “some of the terms are 

ify the terms the court found ambiguous or the testimony 

eaning. 

 1

 The Agreement was incorporated into a separate order on October 17, 2008. 
- 4 - 

 In Dece r-day equitable 

distribution he alid and enforceable.2 It distributed 

the parties’ pro of Code § 20-107.3, 

except for Fidd These two real property assets were 

distribu

ANALYSIS 

ation of 

the defaulted grounds 

first. 

Pursuant to Rule 5:18, we will not consi on appeal wife’s argument that the 

A

mber 2008 and January 2009, the trial court conducted a fou

aring and again held that the Agreement was v

perty in accordance with the equitable distribution principles

ler’s Green and the Sarasota condominium. 

ted pursuant to the terms of the Agreement. Both parties filed motions for 

reconsideration, which the trial court denied. These appeals followed. 

I. 

DID THE TRIAL COURT ERR BY INCORPORATING THE AGREEMENT BECAUSE THE 

AGREEMENT WAS NOT A VALID AGREEMENT AND WAS ENTERED IN 

CONTEMPLATION OF DIVORCE? 

Wife argues the Agreement is not valid based on three grounds: 1) it is ambiguous and 

therefore not enforceable, 2) it is unconscionable, and 3) it was entered in contempl

divorce. Wife failed to preserve two of her three grounds. We address 

der

greement is unconscionable because she did not present it to the trial court. Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of Rule 

5A:18 

 

is to allow the trial court to correct in the trial court any error that is called to its 

 

2

 A different judge conducted the equitable distribution hearing and issued a letter 

opinion addressing the question: 

Although there were other provisions in which “divorce” was 

referenced, specifically one providing that the parties would pay 

their own attorney’s fees incurred in conjunction with a divorce, 

. . . the trial judge squarely based her decision that there was no 

ambiguity in the provisions requesting the agreement be 

incorporated. 
- 5 - 

attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). Theref

Rule 5A:18 prevents us from considering this argument. 

ore, 

Although Rule 5A:18 allows exceptions for good cause or 

to meet the ends of justice, appellant does not argue that we should 

invoke these exceptions. See e.g., Redman v. Commonwealth, 25 

oneself of the exception, a defendant must affirmatively show that a 

have occurred.” (emphasis added)). We will not consider, sua 

Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail 

miscarriage of justice has occurred, not that a miscarriage might 

sponte, a “miscarriage of justice” argument under Rule 5A:18. 

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). 

Moreover, the record does not reflect any reason to invoke the good cause or ends of justice 

exceptions to Rule 5A:18. 

Pursuan

that the Agreem presented to 

the trial court n

t to Rules 5A:18 and 5A:20(e), we will not consider wife’s argument on appeal 

ent was entered in contemplation of divorce because it was neither

or addressed on brief. Jay v. Commonwealth, 275 Va. 510, 520, 

e also

659 S.E.2d 311, 

317 (2008). Se Klein v. Klein, 49 Va. App. 478, 482, 642 S.E.2d 313, 315-16 (2007). 

ding 

ree.3

ents, like marital property settlements, are contracts subject to the 

rules of

 With respect to wife’s remaining ground, we find that the trial court did not err in fin

that the plain language of the Agreement required that it be incorporated into the divorce dec

“Antenuptial agreem

 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) (citing Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 

(1995)). See also Plunkett v. Plunkett, 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006). 

 3

 The Agreement stated, “In the event of any divorce or separation action by either of us, 

we both

d.” 

 agree that the court of relevant jurisdiction shall be requested by both of us to 

incorporate this Agreement in any decree or judgment in any such action, but not merge
- 6 - 

“Contract language is ambiguous when ‘it may be understood in more than one way or 

when it refers to two or more things at the same time.’” Eure v. Norfolk Shipbuilding & 

Drydock Corp., 263 Va. 624, 632, 561 S.E.2d 663, 668 (2002) (quoting Granite State Ins. Co. v. 

Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992)). But, “if no patent or latent ambiguities

exist, a court should enforce the plain meaning of the contractual language without resort to 

extrinsic evidence.” Smith v. Smith, 43 Va. App. 279, 287, 597 S.E.2d 250, 254 (2004) (citing 

Eure, 263 Va. at 632, 561 S.E.2d at 667; King v. King, 40 Va. App. 200, 206, 578 S.E.2d 806, 

810 (2003)). 

Whether contract language is ambiguous is a question of law, not fact. Tuomala v. 

Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996). The trial court’s ruling is, thus, 

subject to de novo review. Eure, 263 Va. at 631, 561 S.E.2d at 667 (“we have an equal 

opportunity to consider the words of the contract within the four corners of the instrument itself” 

(citing Wilson v. Holyfield, 227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984))). Under that 

review, no deference is accorded the trial court’s conclusion regarding ambiguity. Plunkett, 271 

Va. at 167, 624 S.E.2d at 41 (citing Tuomala, 252 Va. at 374, 477 S.E.2d at 505). 

In considering whether the Agreement was to be incorporated into the divorce decree, the 

trial judge who first decided the question found the language of incorporation “plainly” required 

that the Agreement was to be incorporated into the decree, implicitly concluding there was no 

ambiguity. The judge next assigned to the case, and who conducted the equitable distribution 

hearing, concurred in the finding that the Agreement was not ambiguous and that the clear 

language of the incorporation provision required that it be incorporated into the decree of 

divorce: 

[The predecessor judge] found that there was no ambiguity in the 

premarital agreement and she incorporated the agreement into the 

Final Decree of Divorce. . . . 
- 7 - 

Agreement was only enforceable upon death of one of the parties. 

both agree that the court of the relevant jurisdiction shall be 

decree of judgment in any such action, but not merged.” 

incorporated. 

language of the Agreement. 

? 

. 

e the 

e 

e parties. We find that although the trial court did not err in incorporating the 

Agreement into the Agreement 

[T]he Plaintiff [wife] continues to argue that the Premarital 

However, the Premarital Agreement clearly states: 

“In the event of any divorce or separation action by either of us, we 

requested by both of us to incorporate this Agreement in any 

This Court finds no basis not to follow [the predecessor judge’s] 

ruling and thus finds that the Premarital Agreement was 

 We find no error in the trial court’s decision to incorporate the Agreement into the 

divorce decree based on the plain 

II. 

DID THE COURT ERR IN APPLYING THE PREMARITAL AGREEMENT TO THE 

DISTRIBUTION OF PROPERTY CONTRARY TO THE INTENT OF THE PARTIES

Wife contends that the trial court erred in applying the Agreement to the distribution of 

property, specifically to the distribution of Fiddler’s Green and the Sarasota condominium, on

the ground that the parties did not intend the Agreement to apply in the context of divorce. We 

agree. 

The trial court’s ruling that the parties intended that the Agreement be incorporated into 

any divorce proceeding that might ultimately ensue and that they plainly expressed that intent in 

one of the Agreement’s provisions does not address the core issue wife raises before this Court

The core issue is whether the provisions so incorporated govern the disposition of the parties’ 

real property known as Fiddler’s Green and the Sarasota condominium, or whether they, lik

remaining provisions in the Agreement and as the trial court concluded, apply only upon th

death of th

 the divorce decree, it erred in concluding the parties intended that
- 8 - 

was to govern nium in the context of 

divorce. Its aw

The Ag nly three 

reference divor orce decree, one 

directing the parties’ individual re

separation or d es’ rights in the event of 

4 f the 

r to divorce or separation. They 

relate, instead, to the disposition of property upon the death of one or both of the parties and, 

partic an, 

s ide ing 

in Toky

 

the distribution of Fiddler’s Green and the Sarasota condomi

ard on this issue must, accordingly, be reversed. 

reement consists of seven pages and numerous provisions of which o

ce: one directing the Agreement be incorporated into any div

sponsibility for the payment of attorney’s fees in the event of 

ivorce, and one providing for a determination of the parti

a change in the law governing divorce. The remaining provisions govern the disposition o

parties’ property interests and contain no references whatsoeve

ularly, to the post-mortem inheritance rights of the parties’ sons. Husband’s son, Jonath

i ntified in the Agreement as thirty-two years old, married with children, and currently liv

o. Wife’s son, David, is identified in the agreement as nineteen years old and “about to 

start his college sophomore year.” 

 

4

that the plain language of the Agreement was not ambiguous and that it required incorporation of

divorce has no bearing on whether the parties’ property is to be divided pursuant to the 

has no bearing on whether the parties intended that the Agreement, and not Virginia equitable 

A species of “choice of law” provision, it states that the parties waived 

any and all equitable distribution and community property rights 

either or both of us to a place which has community property laws 

or of any other jurisdiction. 

 The provision regarding incorporation was the stated basis for the trial court’s ruling 

the Agreement into the divorce decree. The provision addressing attorney’s fees in the event of 

Agreement. The remaining provision in which divorce is referenced in the Agreement, likewise, 

distribution law, was to govern the distribution of any of their property in the event of divorce. 

which might arise in the future either as a result of relocation of 

and/or by a change in the laws of the Commonwealth of Virginia 

Indeed, if anything, this provision suggests that the parties contemplated that, in the event of 

divorce, Virginia equitable distribution law, current at the time the Agreement was executed, was 

to apply. 
- 9 - 

 identifies a primary and 

second

 to 

rimary beneficiary of the policy and wife’s son, David, was 

to be named the contingent beneficiary. 

Wife also makes a bequest to her husband’s son, Jonathan, stating, “To complement 

David’s accelerated distribution in event of 

, 

/her] own son and any 

other heirs we hese accounts.” 

 The Agreement sets forth a disposition plan for three categories of property: insurance, 

personal property, and real property. In each case, the provision

ary beneficiary and speaks of the property interest in terms of a bequest. 

With respect to life insurance, the Agreement provides that wife is to name husband as

the beneficiary of a $100,000 individual term policy that she owned. Wife names her son, 

David, as the secondary beneficiary of the policy. In order to continue what the parties referred 

to as “a bond of protection between [wife] and [her son] David since his birth,” the parties agreed

that “if [wife] should die before David is settled on a life course after schooling, David is to 

receive a $100,000 payment as a bequest from his mother from the funds [wife] will bequeath

[husband], and as an initial disbursement to David of monies eventually due to him.” 

Wife’s other life insurance policy, comprised of a group term policy through her work 

and initially amounting to about $260,000, was also addressed in the Agreement, which specified

that husband was to be named the p

[wife’s] death, Jonathan will receive a like $100,000 

advance against his eventual bequest in the event [wife] predeceases [husband].” 

With respect to personal property, the parties agreed to designate each other “as 100% 

primary beneficiary or transfer recipient, upon death, on all of our personal accounts (brokerage

401-k, checking/savings, and the like). [Each party shall] designate [his

[husband and wife] choose as contingent beneficiary of 100% of t
- 10 - 

 form

of the personal 

propert

furnishings and personal property, except as follows or has been 

property in both FG [Fiddler’s Green] and in Sarasota to identify 

and pieces we acquired jointly. 

We agree that our sons may take from [the homes] any and all 

desires to have in his own home and use, except for those items 

either of us so long as (s)he lives. Either of us has the right to 

heirs. 

A ula identifies the party’s son’s share and the surviving spouse’s responsibilities with 

respect to that share.5

 The parties also provide for a disposition of the “non-monetary” portion 

y they owned, again to take effect upon their death: 

We agree that each other may keep and continue to use our 

directed by a Will. We plan to maintain a record of personal 

pieces of significance which each of us brought to the marriage 

belongings and furnishings that belonged to his parent, which he 

that have been designated in writing to remain with the survivor of 

designate specific items of property to pass to ultimate/contingent 

 5

 Pursuant to that formula, a record of the deceased party’s bequest of personal property 

is to be of 

that parent’s tr

 maintained by the survivor to ensure that the deceased party’s son received his share 

ansferred asset: 

We agree that if one of us survives the other and thus becomes the 

100% primary beneficiary of the other one’s accounts, an 

“Allocation” will take place. This Allocation will attribute the 

percentage of all monetary (but NOT FG [Fiddler’s Green] or 

Sarasota) out of the total monetary assets that have transferred to 

the surviving spouse. The survivor will maintain appropriate 

documentation of the Allocation, and will take all necessary steps 

to see that at the very least, the Allocation percentage will 

ultimately go to the son (or other designated contingent heirs) of 

the first decedent upon the death of the survivor. In other words, 

we agree that the survivor of us shall retain the use of the 

combined monetary assets during her/his lifetime for all support 

and living expenses, but that upon the second death, the Allocation 

percentage will govern distribution of the residual monetary assets 

to subsequent heirs. 

(Emphasis in original). 
- 11 - 

amongst them in sharing and sharing alike our family possessions 

nal property after we are both dead. 

e parties’ respective interests, each 

party’s right to arged with the costs 

of maintaining f both pieces of real 

property is add ately, of both 

parties. The Agreement provides that if wife predeceased husband, he had the 

e 

ent.

Under the Agreement, the Sarasota condominium was to continue being held in joint title 

with the right of survivorship. Upon husband’s death, the parties agreed that wife was to 

t heirs [husband] indicates will inherit 100% of 

Sarasota upon [wife’s] subsequent death. If [wife] dies before 

reen]. 

 

We wish our sons and other heirs a cooperative spirit of respect 

of perso

With respect to Fiddler’s Green and the Sarasota condominium, the distribution of which

is challenged here, the Agreement addresses the titling of th

 possession irrespective of title, and which party was to be ch

 and/or improving the properties. In addition, the disposition o

ressed, but specifically in the context of the death of one or, ultim

right to live at FG [Fiddler’s Green] and/or to occupy the property

at any and all times for the rest of his life, and that the property 

may not be sold without his express written consent as long as he 

lives. We recognize and reaffirm a long-term lease that we hav

executed with [husband] as “tenant” as further confirmation of our 

agreem 6

retain possession and use of the property during her lifetime (with 

responsibility to maintain it) and that [husband’s son] and any 

other subsequen

[husband], he shall retain 100% of Sarasota and its value separate 

from the Allocation of monetary assets or FG [Fiddler’s G

 

g-term lease reflecting this portion of the Agreement was executed 

nced in another provision of the Agreement as well. The tw

ith each other. The prior provision states: 

While we intend that [wife] shall continue to have sole titl

[Fiddler’s Green] while she lives, we have executed a long-term 

lease confirming [husband’s] full and unfettered right of 

possession and/or occupancy at FG [Fiddler’s Green]. Neither 

[wife] nor her execut

6

 A lon by the parties 

and was refere o provisions are 

inconsistent w

e to FG 

or or estate may sell FG [Fiddler’s Green] 

without [husband’s] express written consent until his death. 

(Emphasis added). 
- 12 - 

 Paralle onal property, 

the Agreement eneficiaries of these two pieces of 

real pro

either of us, or if the survivor vacates FG [Fiddler’s Green], the 

such that our sons or other subsequent heirs will first receive the 

“Basis Equity”) . . . . Any outstanding Line of Credit or other claim 

[wife’s] share. 

A formula for calculating the “Basis Equity” which was to be paid the parties’ respective sons 

upon the death ing that the value 

of the real prop rent residual 

equity” in the A ould exceed or fall below the dollar value of the “basis equity,” the 

parties 

 

ling the provisions setting forth the disposition of the parties’ pers

 names the parties’ sons as their contingent b

perty: 

If we die at the same time, or after the death of the survivor of 

equity in FG [Fiddler’s Green] will be divided and promptly paid 

dollar value of his parent’s equity interest (we’ll refer to this as the 

against the value of FG [Fiddler’s Green] will be deducted from 

 of both or either party was set out in the Agreement.7

 Anticipat

erty at the time of the death of one or both parties (called the “cur

greement) c

further specified how to calculate their “subsequent heirs’” share under those 

circumstances: 

 

ula for calculating the “dollar value of [each party’s] equity in

s the ‘Basis Equity’)” in Fiddler’s Green was set out in the Agree

We agree that our respective equity interests (as distinct from title) 

in FG [Fiddler’s Green] shall be as follows. [Wife] shall have an

7

 A form terest . . . 

(referr[ed] to a ment: 

interest of $273,000 plus improvements she pays for from her 

earnings from work. [Husband] shall have an interest of $8,000 

plus improvements he pays for (including but not limited to the 

planned renovation) plus any payments he makes toward the 

terest in FG [Fiddler’s 

Green] over time. 

nd 

he 

y 

included in her $273,000 equity interest above. 

mortgage and note. . . . When [husband] pays for that renovation 

and/or makes payments toward the mortgage and note, he is likely 

to build up a majority equity percentage in

Regular payments on the FG [Fiddler’s Green] mortgage, taxes a

insurance will be paid by [wife] from her earnings while s

works, and after that from our retirement incomes. [Wife’s] 

payments toward [sic] mortgage and note, and maintenance over

the course of her working over the next two years, are alread
- 13 - 

greater

[I]f the then-current residual equity in FG [Fiddler’s Green] is 

 than the initial Basis Equity, that residual equity will be 

equity value of FG [Fiddler’s Green] is less

divided and paid 50 /50 to each of our subsequent heirs. If the 

 than the Basis Equity, 

the value and distribution to each of our subsequent heirs will be 

proportionally reduced. 

(Emphasis in o

It was t calculate the 

parties’ respec

We conclude the trial court erred in so doing. Nothing in the language of these 

, beginning with the following: 

Our intent, individually and together, is to make fair financial 

eventuality of our deaths. . . . [T]his Agreement is not a Will or 

The pa was the subject 

of another prov cial 

arrangements f

[T]his Agreement is our effort to clarify and to concretize our 

d the 

ing to 

riginal). 

hese formulas that the trial court used in the divorce proceeding to

tive interests in Fiddler’s Green and the Sarasota condominium. 

provisions regarding the disposition of Fiddler’s Green or the formula set forth for calculating 

the parties’ interest in the property indicates the Agreement is to govern the distribution of the 

property in the event of divorce. 

Indeed, the parties’ expressed intent in entering the Agreement is to the contrary. Four 

provisions in the Agreement reflect that intent. All four relate to the parties’ post-mortem

financial planning

arrangements to share our financial capabilities and at the same 

time to prepare ourselves and our respective sons for the ultimate 

testament, but it describes our commitment to post-mortem 

financial arrangements that will help each of us deal with financial

consequences of the other’s death. 

rties’ intent that intrafamily conflicts after their deaths be avoided

ision, corroborating the parties’ intent to make post-mortem finan

or each other and for their heirs: 

commitments to each other so as to minimize any 

misunderstandings or conflicts between a surviving spouse an

children, or between the children after our deaths. We are try

inform and to guide them as to our intentions and desires. 
- 14 - 

The pa Green after wife’s 

death, and they

radition to both [wife] and David. If 

[wife] dies before [husband], he agrees to share the FG [Fiddler’s 

me with David until David reaches the age of 21; beyond 

that age, [husband] welcomes David’s and/or Jonathan’s visiting 

nheritance under 

the Agr ate 

nequal bequests: 

in life deserve some assistance, and we hope that Jonathan will 

David has (Jonathan has two children), Jonathan is also more 

is time and will not be 

injured by this financial allocation. 

 Finally sed by a 

provision that 

his Agreement, the other . . . 

will have a valid, meritorious and enforceable claim against the 

. . . the claimant will be indemnified by the other and/or the other’s 

Agreement against any such Will or testament or Trust. 

The parties qualified this restriction, specifying that in the event they divorced, the restriction on 

their right to m those set out in the Agreement 

would no long

rties intended that their sons continue to live or visit at Fiddler’s

 expressed this intent as follows: 

We recognize how important FG [Fiddler’s Green] is as a home 

and as a piece of family t

Green] ho

and staying overnight throughout their lifetimes. 

 The parties also considered the ultimate value of their respective son’s i

eement and, recognizing that their plan would “somewhat enlarge David’s ultim

inheritance and somewhat reduce Jonathan’s ultimate inheritance from what each of us 

individually might have bequeathed to them,” they included a provision explaining their intent 

and rationale for the potentially u

We believe that David’s younger age and less-established station 

agree that although he (at least now) has greater obligations than 

financially established than David is at th

, the testamentary nature and purpose of the Agreement is addres

includes a disincentive to deviate from that purpose: 

[I]f either [Husband or Wife] . . . makes a Will or executes a Trust 

. . . contravening any provisions of t

person making that Will or Trust and/or that person’s estate, and 

estate for all legal fees and costs necessary to enforce this 

ake testamentary arrangements in contravention of

er apply. 
- 15 - 

he court must bear in mind “‘the situation of 

the parties, the intend to 

accomplish.’” 

In discerning the intention of the parties, t

 subject matter of the agreement and the object which the parties 

Reid v. Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (quoting High 

Knob, Inc. v. Allen, 205 Va. 503, 507-08, 138 S.E.2d 49, 53 (1964) (internal quotations 

omitted)). “Words used by the parties are normally given their usual, ordinary and popular 

meaning.” Winn v. Aleda Constr. Co., 227 Va. 304, 307, 315 S.E.2d 193, 194-95 (1984) (citing 

Ames v. American Nat. Bank, 163 Va. 1, 39, 176 S.E. 204, 217 (1934)). 

“‘In construing a contract . . ., the intention of the parties must be ascertained from the 

entire instrument.’” Bott v. N. Snellenburg & Co., Inc., 177 Va. 331, 339, 14 S.E.2d 372, 374 

(1941) (quoting Harrity v. Continental-Equitable Title & Trust Co., 124 A. 493, 494 (Pa. 1924)). 

An expression t will be held to 

have the same purpose plainly 

appears. 

r 

 were to be applied in 

equitably distr t, accordingly, 

applied the Ag ts.8

 We reverse 

that decision o

First, th ult the trial court 

 

 to which a plain meaning is attached in one part of an instrumen

meaning in other parts of the same instrument unless a contrary

Here, the trial court concluded that the parties intended that the provisions in thei

Agreement regarding Fiddler’s Green and the Sarasota condominium

ibuting those pieces of real property in the divorce proceeding, and i

reement’s formulas to calculate the parties’ interests in those asse

n the following grounds. 

e language of the provisions provides no basis for the res

reached. A review of each provision in the Agreement regarding the treatment of property, both 

s 

in those properties, the trial court awarded husband $697,573 for his interest in Fiddler’s Green 

ife 

Fiddler’s Green, less husband’s interest, and a future interest in the Sarasota condominium. 

8

 Applying the formula in the Agreement for determining the parties’ respective interest

and ordered the Sarasota condominium to be retitled in husband’s sole name. It awarded w
- 16 - 

ade 

ly upon death. To be 

sure, as

e 

 in the formula to be used to value the parties’ personal property and the provision to 

be appl t, 

uing 

ce in the formula for evaluating the parties’ respective 

interest 

in Fiddler’s Green to their sons or 

subsequ

Finally, we note the trial court’s construction essentially and improperly treats as 

real and personal, shows they refer solely to the time of the parties’ death. No reference is m

to an intended distribution of property incident to divorce. 

Second, the trial court’s construction fails to consider the Agreement as a whole and 

ignores the clear meaning of the same words used in other parts of the Agreement which the 

court, tellingly, concluded required the application of the Agreement sole

 argued by husband, the parties stated they intended to treat Fiddler’s Green and the 

Sarasota condominium “differently” from the parties’ personal property. However, it does not 

follow from the word “differently” that the parties intended to exclude Fiddler’s Green and the 

Sarasota condominium from the testamentary parameters of the Agreement. Indeed, the only 

difference that emerges from our review of the plain language of the provisions in question is th

difference

ied in valuing their interests in Fiddler’s Green and the Sarasota condominium. Bu

neither the formula for valuing the parties’ personal property interest nor the formula for val

their interests in Fiddler’s Green and the Sarasota condominium speaks in any respect to divorce 

as the circumstance governing their application. No explanation is found in the record 

addressing how or why a simple differen

s in their personal and real property compels the conclusion the trial court reached.

Indeed, the formula for calculating the parties’ respective interests in Fiddler’s Green and the 

Sarasota condominium, by its language discussing the parties’ “Basis Equity,” relates back to the 

provision providing for the payment of each party’s equity 

ent heirs upon the parties’ deaths. 

meaningless the words of bequest in the provisions governing the disposition of Fiddler’s Green 

and the Sarasota condominium. “‘[N]o word or clause is to be treated as meaningless if any 
- 17 - 

reasonable meaning consistent with the other parts of the contract can be given to it.’” Hutter v. 

Heilmann, 252 Va. 227, 231, 475 S.E.2d 267, 270 (1996) (quoting Vega v. Chattan Assocs., 246

Va. 196, 199, 435 S.E.2d 142, 143 (1993)). See also Restatement (Second) of Contracts, § 2

cmt. d (1981) (“Where the whole can be read to give significance to each part, that reading is 

preferred . . . .”). 

We find in our de novo review of the Agreement that it is not ambiguous or vague as to

whether the Agreement applies to the distribution of the property in the case of divorce, but 

rather it is quite clear within the four corners of the document. 

 In support of his contention that the provisions regarding Fiddler’s Green and the 

02 

t of 

t 

rding 

Sarasota condominium were to govern in the event of the parties’ divorce, husband argues that 

the trial court “heard exhaustive testimony regarding the parties’ intent with regard to the 

Agreement” and that the testimony establishes the Agreement applies both in the contex

divorce and upon death. Husband’s citations to the record, however, fail to support the argumen

advanced.9

 Husband cites the trial court’s opinion letter and to his counsel’s argument rega

 9

 The testimony cited is limited to 

 The conclusion of the trial judge regarding the parties’ intent in his opinion lett

of February 17, 2009.· 

The argument of husband’s 

Husband’s testimony that he

er 

counsel regarding the construction of the Agreement.· 

 thinks that the “express intent is a combination of 

two sec page 2 

. . . that ve that 

te, 

tions in the document. . . . One of those two sections is the . . . fourth paragraph of

 says we waive equitable distribution in two limited circumstances. So that I belie

the language of paragraph 4 on page 2 expressly establishes that equitable distribution should 

operate in the event of divorce. And that has to be read collaboratively [sic] with page 4, 

paragraph 3, which expressly excludes from equitable distribution the two parcels of real esta

Fiddlers Green and Sarasota.” 

Husband’s testimony that “In the event of divorce or death, death inevitable, that 

the document provides a formula for allocating or dividing the equity interests in those two 

pieces of property.” 

Husband’s testimony that he “had concerns about protecting the money that I was 

going to be putting into [wife’s] house, so that it would ultimately all come back either to me in 

the event of divorce or come back to my son and grandchildren after both of us were dead.” 
- 18 - 

nion that the document provides a formula for dividing the parties’ real 

propert

guage they used to express their 

greem

the construction of the Agreement; neither constitutes testimony. Husband’s testimony 

expressing his opi

y interests “in the event of divorce” is, at best, a commentary on the Agreement’s 

language that is of no import in construing a contract. “A contract is not deemed ambiguous

merely because the parties disagree as to the meaning of the lan

a ent.” Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316 (1986) (citing Wilson, 

he 

227 Va. at 187, 313 S.E.2d at 398). “Contracts are not rendered ambiguous merely because the 

parties or their attorneys disagree upon the meaning of the language employed to express t

agreement.” Doswell Ltd. Partnership v. Virginia Electric & Power Co., 251 Va. 215, 222-2

468 S.E.2d 84, 88 (1996) (citing 

3, 

Wilson, 227 Va. at 187, 313 S.E.2d at 398). 

Finally, husband’s testimony regarding his concerns about “protecting his money” and 

that it was to “all come back either to [him] in the event of divorce or come back to [his]

grandchildren after both of us were dead,” constitutes extrinsic evidence that cannot be use

contradict or vary the terms of a valid written instrument. 

 son and 

d to 

Tuley v. Barton, 79 Va. 387, 392 

(1884) (parol evidence cannot be “received to engraft upon, or incorporate with a valid written 

contrac neously therewith and inconsistent with its terms. In 

any other cons

t, an incident occurring contempora

other words, no new words can be added, nor, when the meaning is clear and unambiguous, can 

truction be given than what the written words naturally import.”). “‘Where a 

contract 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.’” Pellegrin v. Pellegrin, 31 Va. App. 75

759, 525 S.E.2d 611, 614 (2000) (quoting 

3, 

Harris v. Woodrum, 3 Va. App. 428, 432, 350 S.E.2d 

667, 669 (1986)). 

In summary, no provision in the Agreement expressly excludes the parties’ real property 

interests in Fiddler’s Green and the Sarasota condominium from equitable distribution pursuant 
- 19 - 

t’s 

d 

DID T

DISTRIBUTION OF THE PARTIES’ ASSETS BY FAILING TO PROPERLY CLASSIFY 

TRACING OF ASSETS, AND FAILING TO CONSIDER THE FACTORS IN CODE 

n 

on. Its failure to do so constitutes error. See

to Code § 20-107.3 or expressly brings the distribution of those interests within the Agreemen

reach as argued by husband. There is no basis from which to conclude, expressly or by 

implication, that the parties intended the Agreement to apply in the context of divorce. 

For the reasons stated here, we, therefore, find that the trial court erred in its application 

of the Agreement to the distribution of the parties’ real property interests in Fiddler’s Green an

the Sarasota condominium.10

III. 

HE COURT ERR IN ITS APPLICATION OF CODE § 20-107.3 IN THE EQUITABLE

AND VALUE PROPERTY, IMPROPERLY APPLYING THE BURDEN OF PROOF IN THE 

§ 20-107.3(E)? 

A. 

 Wife argues that the trial court failed to value the parties’ real property interests which, i

addition to Fiddler’s Green and the Sarasota condominium, included a property referred to as the

1600 Oak Street property and properties held by limited partnerships and limited liability 

companies.11

 Because the trial court erroneously addressed the parties’ property interests in Fiddler’s 

Green and the Sarasota condominium pursuant to the parties’ Agreement and did not apply the 

principles of the equitable distribution statute, the trial court did not provide a value for the two 

properties in questi Code § 20-107.3(A) (“the court 

. . . shall determine the . . . value of all property, real or personal, tangible or intangible . . .”). 

 

 Because we conclude that the trial court erred in applying the Agreement to the 

distribution of Fiddler’s Green and the Sarasota condominium, we need not address wife’s 

additional argument that the court’s distribution of the properties was not based on prope

evidence of each party’s contribution to the property. 

11 The 1600 Oak Street property is also referred to as the Arlington condominium

10

r 

, which 

is discussed in Section I of husband’s cross-error below. 
- 20 - 

 the trial court did not determine the value of River Oak LP. That 

failure constitutes error. 

c

separate property. “This statute [Code § tes that the court determine the 

ownership and value of all real and personal property of the parties.” Hodges v. Hodges

The River Oak LP property and the properties held by the limited partnerships and 

limited liability companies, on the other hand, were addressed pursuant to the equitable 

distribution statute. However,

Likewise, the trial court failed to value the limited partnerships and limited liability 

ompanies, instead holding that they, except for Atlantic Psychiatry Group, were husband’s 

20-107.3] manda

, 2 

al court also failed to value the remaining limited partnerships and limited liability 

ompan t 

Va. App. 508, 516, 347 S.E.2d 134, 139 (1986). Here, the trial court erred when it failed to 

value River Oak LP and Atlantic Psychiatry Group, which it classified as marital. Its equitable 

distribution of these two properties is, therefore, reversed. 

The tri

c ies, which were classified as separate. However, the error is harmless because it was no

relevant to the equitable distribution award. See McDavid v. McDavid, 19 Va. App. 406, 413, 

451 S.E.2d 713, 718 (1994). 

B. 

Wife further argues that the trial court erred in awarding husband a separate interest in 

Fiddler’s Green and its decision should be reversed on the ground husband failed to meet hi

burden of proving the identity of his separate interest in the hybrid property and failed to

that portion to a separate asset. 

s 

 trace 

See generally Rahbaran v. Rahbaran, 26 Va. App. 195, 494 

S.E.2d 135 (1997); von Raab v. von Raab, 26 Va. App. 239, 494 S.E.2d 156 (1997). She also 

ldi

contends the trial court erred because husband failed to prove that any separate property 

contributions he made increased the value of wife’s separate property, citing Rinaldi v Rina , 

53 Va. App. 61, 73, 669 S.E.2d 359, 365 (2008) (“‘It is the value that improvements add to the 
- 21 - 

at is the proper consideration because the court is apportioning the 

equity i

property, not their cost, th

n the hybrid property when it traces the sources of contributions to that property.’” 

(emphasis in original) (quoting Hart v. Hart, 27 Va. App. 46, 66, 497 S.E.2d 496, 505 (1998)

Because the trial court erroneously applied the parties’ Agreement to determine their intere

Fiddler’s Green, it failed to apply the correct principles governing tracing in its distribution o

Fiddler’s Green. Its decision is, therefore, reversed and the matter remanded for consideratio

under the equitable distribution statute. 

C. 

)). 

st in 

f 

n 

 liability facing the parties and informed her that she should 

consider amending the tax returns and retaining a tax attorney. The IRS had neither investigated 

the part l. 

 of 

reduce an award for potential capital gains tax consequences no 

requires only that the trial court consider tax consequences when 

to assign to this factor in the overall decision lies within the trial 

Wife limits her argument that the court failed to consider all the factors under Code 

§ 20-107.3 to her claim that the court erred in failing to consider the tax consequences resulting 

from husband’s business deductions in making its equitable distribution award. Wife’s expert 

testified as to the potential tax

ies’ tax returns nor conducted an audit, and no tax liability existed at the time of the tria

On that ground, the trial court found no evidence of actual tax liability and, because the claim

potential tax liability was speculative, there were no tax consequences to consider. 

We find no error in the trial court’s conclusions on this issue. 

Code § 20-107.3(E)(9) . . . does not mandate that a trial court 

matter how certain or uncertain they may be. Subsection E(9) 

formulating an equitable distribution award. What weight, if any, 

court’s sound discretion. 

Owens v. Owens, 41 Va. App. 844, 859, 589 S.E.2d 488, 496 (2003). We find the trial court 

not err in concluding there were no tax consequences to consider in making its award. 

did 
- 22 - 

VALIDITY OF THE LEASE? 

 Wife argues that the trial court erred in finding that the lease was valid. First, wife 

contends the lease was not entered into evidence and reviewed by the trial court. However, the 

trial court admitted the lease as a joint exhibit,12 and reviewed the lease and addressed it in its 

letter opinion. 

 Second, wife argues that the lease “does not rise to the level of an enforceable contract” 

because it does not specify a sum for rent or a formula to establish the amount. The lease states, 

“Tenant [husband] warrants to undertake to provide funds sufficient to pay principal, interest, 

HOA fees and taxes on the premises/property beginning in January, 2007 and extending through 

the subsequent period of occupancy of the property by tenant for the remainder of this Lease.” 

The trial court concluded that “[t]here was a definite lease term of 40 years and the rent was to 

be paid by the Defendant [husband] in the amount of the monthly mortgage payments, interest, 

HOA fees, and taxes on the property. The Court finds that this is a specific rental amount and 

thus there is a 

We find lease was not 

valid on this gr

IV. 

DID THE COURT COMMIT LEGAL ERROR IN UPHOLDING THE 

13

valid lease.” 

 no error in the trial court’s rejection of wife’s contention that the

ound. See Allen v. Aetna Casualty & Surety Co., 222 Va. 361, 364, 281 S.E.2d 

818, 820 (1981) (Where there is no sum specified in the agreement, nor any method or formula 

set out for determining the amount, the mutual assent of the parties to the terms is lacking and 

the contract is not enforceable.); Davis v. Cleve Marsh Farm Hunt Club, 242 Va. 29, 34, 405 

 12 The lease was accepted into evidence as Joint Exhibit 2. Counsel for appellant noted 

for the trial court, “We agree that [Joint Exhibits] 1 and 2 come into evidence. That’s the 

prenuptial agreement, Judge, and the document called the lease.” 

13 The term of the lease was defined as forty years. 
- 23 - 

S.E.2d 839, 842 (1991) (“[A] lease renewal provision that does not set forth an agreed rental is 

invalid and unenforceable, absent a specified method or guideline for fixing rent.”); see also 

Phipps v. Storey, 601 S.W.2d 249, 252 (Ark. 1980) (“Where the annual rental is not agreed upon 

and the contract does not otherwise provide a manner for its definite determination, the contract 

does not meet this test [of certainty].”). Here, the trial court properly determined that the lease 

provided “a specific method or guideline for fixing [the] rent” to be paid, viz., the sum of the 

“principal, interest, HOA fees and taxes.” 

 Wife also argued that the lease was invalid because it did not provide “definitive terms” 

by which a remedy for potential breach could be determined. Wife cites two cases in her brief, 

but neither supports her argument. Wife’s failure to provide legal authority to support her 

argument is significant, and we will, therefore, not consider it. Parks v. Parks

14

, 52 Va. App. 663, 

664, 666 S.E.2d 547, 548 (2008); see Rule 5A:20(e) (appellant’s opening brief shall include 

“[t]he principles of law, the argument, and the authorities relating to each question presented 

. . .”). 

V. 

DID THE COURT COMMIT LEGAL ERROR IN ORDERING THE TRANSFER OF 

o 

distribute the parties’ interests in Fiddler’s Green and the Sarasota condominium, and we remand 

SEPARATE PROPERTY? 

The trial court found that, under the Agreement, the Sarasota condominium, which was 

held jointly, was to remain husband’s separate property and it, accordingly, re-titled the property

in husband’s name. Wife claims the Agreement does not confer jurisdiction on the court to 

transfer the separate property. Since we hold the trial court erred in applying the Agreement t

 14 Wife cites Valjar, Inc. v. Maritime Terminals, 220 Va. 1015, 1018, 265 S.E.2d 734, 

737 (1980), and Progressive Constr. Co. v. Thumm, 209 Va. 24, 30-31, 161 S.E.2d 687, 691 

(1968).
- 24 - 

ARLINGTON CONDOMINIUM? 

 Husband argues that the trial court erred in awarding wife $56,367, an amount the court 

found represented her “marital equity” in the Arlington condominium, which was husband’s 

primary residence after the separation. We disagree. 

 On July 30, 2007, husband created JDICO, LLC (JDICO) in anticipation of divorce. 

JDICO’s main asset, the Arlington condominium, was purchased with two separate payments. 

Husband argues one payment was in the form of a $30,000 check that was drawn on a joint 

account (Fidelity IMA 0546), but which husband contends he traced to his separate assets. A 

second payment was in the form of a $226,950 wire from another Fidelity brokerage account 

(Fidelity 1186) that husband contends the trial court found to be his separate asset. 

Husband correctly argues that the trial court held the Fidelity 1186 brokerage account 

was husband’s separate property, a e account to him as his separate 

propert

has not considered or has misapplied one of the statutory mandates, or that the evidence fails to 

support

the case for further proceedings under the equitable distribution statute, we need not address this

question. 

HUSBAND’S CROSS-ERROR 

I. 

DID THE COURT ERR BY AWARDING WIFE A SEPARATE INTEREST IN THE 

s evidenced in its award of th

y in the divorce decree. Wife does not challenge that finding and award on appeal. The 

inquiry remains, then, whether the trial court erred in its finding that the funds drawn from the 

Fidelity IMA 0546 account in the amount of $30,000 were marital and that husband failed to

trace the funds to his separate property. 

‘“[U]nless it appears from the record that the chancellor has abused his discretion, that he 

 the findings of fact underlying his resolution of the conflict in the equities,’” the trial 

court’s award of equitable distribution will not be reversed on appeal. von Raab, 26 Va. App. at 
- 25 - 

246, 494 S.E.2d at 159 (quoting Robinette v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 

633 (1990) (citations omitted)). 

The Fidelity IMA 0546 a $30,000 was drawn is jointly 

titled and presumed to be marital. “Marital prop ty is . . . all property titled in the names of both 

parti

property, and it was his burden to prove what portion, if any, was separate. 

Whether a transmuted asset can be traced back to a separate 

including the value and identity of the separate interest at the time 

ming a separate interest in 

transmuted property bears the burden of proving retraceability. If 

proves retraceability, the burden shifts to the other party to prove 

“gift.” 

von Raab

ccount from which the check for 

er

es . . . .” Code § 20-107.3(A)(2). Husband argued that this account was not marital 

property interest is determined by the circumstances of each case, 

of the transmutation. . . . The party clai

the party claiming the separate interest in transmuted property 

that the transmutation of the separate property resulted from a 

, 26 Va. App. at 248, 494 S.E.2d at 160 (citations omitted). 

 As this Court previously held, where separate property has been commingled with marital 

property, the trial court must be able to identify the separate amount and ‘“compute the ratio 

[between the separate and marital assets] and trace both interests.’” Rahbaran, 26 Va. App. at 

208-09, 494 S.E.2d at 141-42 (quoting Brett R. Turner, Equitable Distribution of Property 266 

n.591 (1994)). If the party cannot present evidence from which the court can determine the 

party’s separate asset, the property is transmuted and becomes marital property. Id. at 208, 494 

S.E.2d at 141. See also Gilman v. Gilman, 32 Va. App. 104, 122, 526 S.E.2d 763, 772 (2000); 

Barker v. Barker, 27 Va. App. 519, 533, 500 S.E.2d 240, 246 (1998). 

At trial, husband presented a chart to show the source of funds for the jointly titled 

Fidelity IMA 0546 account. However, the chart does not directly trace the funds for the $30,000 
- 26 - 

5

e the 

A 0546 account, the 

other account u

Therefo s were used to 

purchase the A cluding that 

husband failed separate 

property and in finding wife had an interest in the property.

D

SEPARATE PROPERTY? 

 Wife was employed at SAIC, and she was awarded various stock options and restricted 

stock awards as a result of her employment. 

Husband argues the trial court improperly classified wife’s Mellon One account as her 

separate property. We disagree. 

Wife exercised 600 marital stock options and funded the purchase of this stock during the 

marriage using her separate funds. After the purchase, wife transferred the stock to a holding 

 

check to husband’s separate assets. Other than the chart, husband cites no other evidence to this 

Court to support his contention.1

Thus, although husband met his burden of proving that a substantial portion of the 

purchase costs for the Arlington condominium was paid from his separate assets held in the 

Fidelity 1186 account, he was unable to establish that the remaining funds used to purchas

property came solely from his separate assets in the jointly held Fidelity IM

sed for the payment of the condominium costs. 

re, on this record, which shows that both marital and separate fund

rlington condominium, we find that the trial court did not err in con

 to meet his burden of proving the Arlington condominium was his

16

II. 

ID THE COURT IMPROPERLY CLASSIFY MULTIPLE INTERESTS AS WIFE’S 

 

15 “We will not search the record for errors in order to interpret the appellant’s cont

and correct deficiencies in a brief.” 

ention 

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 

239 (1992). The appendix in this case is 5,890 pages and thirteen volumes. The attorneys failed 

to direct the Court to the evidence that supports their arguments that the trial court erred in its 

ruling on classification, so they will not be considered. 

16 The amount the trial court awarded wife representing her interest in the Arlington 

condominium is not before us on appeal. We, therefore, need not address the issue. 
- 27 - 

n the date of purchase of the exercised options is marital 

propert es 

cised) in wife’s Mellon One 

accoun

t 

t erred in classifying these shares 

as wife’s separate property. This error is signif t, and we will not consider these questions. 

See

account within her Mellon One account. Husband contends the difference between the strike 

price17 and the fair market value o

y. Using his formula, husband argues 88 shares were marital property, and 512 shar

were wife’s separate property and that the trial court should have ordered wife to transfer 

one-half of the 88 shares to him. 

He also argues there is no evidence that wife’s remaining unrestricted shares of SAIC 

stock (1,099.9308 shares minus the 600 stock options wife exer

t are wife’s separate property and that the trial court’s ruling should be reversed. 

Rule 5A:21(d) states that “the brief of the appellee shall contain . . . [t]he principles of 

law, the argument, and the authorities relating to each question presented.” Husband did no

present any legal authority for his contention that the trial cour

ican

Jay, 275 Va. at 520, 659 S.E.2d at 317. 

Finally, husband argues that the trial court erred in holding that wife’s unexercised SAIC 

stock options, her restricted SAIC stock awards, and her CEO stock award (collectively referred 

to as the SAIC Newport Group Restricted Stock Award) were her separate property. 

Wife explained to the trial court that she could not exercise the SAIC Newport Group 

Restricted Stock Award unless she was employed at SAIC in 2011. Since the vesting of this 

award was conditioned upon wife’s continued employment, her right to these shares would not 

vest until after the parties’ separation and divorce. Consequently, the trial court did not err in 

classifying the SAIC Newport Group Restricted Stock Award as her separate property. See

Shiembob v. Shiembob, 55 Va. App. 234, 242, 685 S.E.2d 192, 196 (2009) (trial court erred in 

 

on 17 Strike price is “[t]he price for which a security will be bought or sold under an opti

contract if the option is exercised.” Black’s Law Dictionary 1308 (9th ed. 2009). 
- 28 - 

holding that husband’s restricted stock shares were marital property because they did not vest 

until after the parties’ separation); Ranney v. Ranney, 45 Va. App. 17, 33-34, 608 S.E.2d 48

493 (2005) (trial court erred in holding that husband’s stock options were his separate property

because although they were acquired before the marriage, they vested after the parties’ 

marriage); 

5, 

Cirrito v. Cirrito, 44 Va. App. 287, 293-94, 605 S.E.2d 268, 271 (2004) (funds 

receive

HER SEPARATE PROPERTY? 

 Husband argues that the trial court erred in holding that wife’s vehicle was her separate 

property. 

“Because the trial court’s classification of property is a finding of fact, that classification 

will not be reversed on appeal unless it is plainly wrong or without evidence to support it.” 

Ranney

d by husband as a result of a non-compete agreement were marital because his right to 

receive the funds occurred during the marriage, after he complied with the non-compete 

agreement). 

III. 

DID THE COURT ERR IN CLASSIFYING WIFE’S VEHICLE AS 

, 45 Va. App. at 31-32, 608 S.E.2d at 492 (citing McDavid, 19 Va. App. at 407-08, 451 

S.E.2d at 715, and Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)). 

Prior to the marriage, wife purchased a vehicle with the assistance of a loan. On July 6, 

2004, husband wrote a check, in the amount of $9,907.84, to pay off the loan. The check was 

from a joint account. Husband argues that he primarily used the account and testified that wife’s 

name was on the account “to facilitate her access to the account if [he] got sick.” Therefore, he 

contends he has a separate interest in the car in the amount of $9,907.84 and that he should be 

reimbursed the full amount. On this record, we conclude that husband did not prove that he had 

a separate interest in the car because the checking account from which the funds were drawn to 

pay off the loan was jointly titled prior to the marriage. Since husband did not prove that he used 
- 29 - 

HUSBAND’S BANK ACCOUNT? 

 Husband contends the trial court failed to find that wife wasted and dissipated $15,100 

from a joint account, which husband primarily used. Husband contends wife’s withdrawal of the 

funds constituted waste and that wife failed to show by a preponderance of the evidence that the 

funds were used for a proper purpose.19 On those grounds, he argues that he should have been 

awarded one-half the value of th . 

r marital bills. She further testified that she then realized that husband had moved 

money 

se 

at 

his separate funds to pay off the car loan, we find that the trial court did not err in concluding 

that the vehicle remained wife’s separate property because she purchased it before the 

marriage.18

IV. 

DID THE COURT ERR IN CONSIDERING MONIES WIFE WITHDREW FROM

e account before it was dissipated

Wife admitted withdrawing the funds and explained she initially wrote “a couple of 

checks” fo

from a Virginia bank account to a Florida bank account right after the separation and that 

she “was concerned about what was happening, in terms of money and having enough, becau

this was just at the point of separation.” There is no further testimony about the use of the 

marital funds. 

Waste has been defined as the “dissipation of marital funds in anticipation of divorce or 

separation for a purpose unrelated to the marriage and in derogation of the marital relationship 

 

 “‘[P]roperty acquired before marriage is presumed to be separate.’” 18 Rahbaran, 26 

Va. App. at 209, 494 S.E.2d at 142 (quoting Barnes v. Barnes, 16 Va. App. 98, 104, 428 S.E.2d 

294, 299 (1993)); see Code § 20-107.3(A)(1). 

 Wife notes that husband did not make this argument during the trial, and she contends 

that he waived the argument. In a bench trial, a party can preserve his issues for appeal in a 

motion to strike, in closing argument, in a motion to set aside the verdict, or in a motion to 

reconsider. 

19

Lee, 12 Va. App. at 515, 404 S.E.2d at 738. Here, husband first raised the issue in 

his motion to reconsider and, thus, preserved the issue. 
- 30 - 

a time when the marriage is in jeopardy.” Booth v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569,

572 (1988). 

“Once the aggrieved spouse shows that marital funds were either withdrawn or used after 

the breakdown, the burden rests with the party ged with dissipation to prove that the money 

was sp

char

ent for a proper purpose.” Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 

261 (1990) (citations omitted). “[T]he use of funds for living expenses while the parties are 

separated does not constitute dissipation.” Id. (citations omitted). 

[T]he expenditure of marital funds for items such as voluntary 

life constitutes a valid marital purpose and is not waste. See, e.g.

support, living expenses, attorney’s fees, and other necessities of 

, 

Anderson v. Anderson, 29 Va. App. 673, 695, 514 S.E.2d 369, 381 

(1999) (mortgages, credit cards); Alphin v. Alphin, 15 Va. App. 

port, medical 

bills for wife); Amburn v. Amburn

395, 402, 424 S.E.2d 572, 576 (1992) (voluntary sup

, 13 Va. App. 661, 414 S.E.2d 

tuition, car loans); Clements v. Clements

847 (1992) (personal living expenses, attorney’s fees, child’s 

, 10 Va. App. 580, 397 

S.E.2d 257 (1990) (household expenses, child’s tuition). 

Thomas v. Thomas, 40 Va. App. 639, 645, 580 S.E.2d 503, 506 (2005). 

“When waste has occurred, the court must include the wasted assets as marital property 

and must consider the waste as a factor in determining the monetary award.” Booth, 7 Va. 

at 28-29, 371 S

App. 

.E.2d at 573. 

sufficient to meet the requisite burden of proof on this issue. Cf.

In this case, wife provided no verifiable explanation or accounting of how she spent the 

$15,100 she withdrew from marital funds; her expression of concern about finances is not 

, Alphin, 15 Va. App. at 403, 

nditure he made from these assets.”); Amburn

424 S.E.2d at 576 (husband submitted a “detailed list of funds that the parties held on the date 

they separated and a complete list of each expe , 13 

Va. App. at 666, 414 S.E.2d at 850 (wife “presented a full accounting of her use of the line of 

credit”). Accordingly, we find that the trial court erred in failing to include the funds as marital 
- 31 - 

sue for further consideration by the trial court. 

part, 

property and consider them in fashioning its equitable distribution award. We reverse and 

remand the is

CONCLUSION 

 For the reasons discussed above, we affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion. 

Affirmed in 

 reversed in part, 

 and remanded.