COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

RICHARD L. BARKER 

 OPINION BY 

v. Record No. 0812-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 JUNE 16, 1998 

NANCY J. BARKER 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 Andrea R. Stiles (Williams, Mullen, 

Christian & Dobbins, on briefs), for 

appellant. 

 Lawrence D. Diehl for appellee. 

 Richard L. Barker (husband) appeals the order of the trial 

court granting him a divorce from Nancy J. Barker (wife) on the 

basis that the trial court erred in determining the spousal 

support and equitable distribution awards. Specifically, husband 

argues that the court overestimated his earning capacity for 

purposes of spousal support, improperly applied the tracing 

doctrine, and failed to properly consider the statutory factors 

in determining equitable distribution. We affirm in part and 

reverse in part.1

 Husband and wife were married on December 10, 1978. Wife's 

 

 1Wife has filed a motion to delete or disregard a portion of 

husband's designation of the record for the appendix, alleging 

that a portion of the appendix is improperly before this Court. 

Husband did not respond to this motion. Our review of the record 

supports wife's allegations. Accordingly, we grant the motion 

and will not consider or rely upon the portion of the appendix 

that was improperly filed. 
 2 

three children from a previous marriage lived with the parties 

for a number of years. At the time of the marriage, husband owed 

his former spouse over $50,000 in spousal support, payable over a 

period of ten years. Although wife did not work outside the home 

for the majority of the marriage, both parties contributed funds 

to buy their first marital home. During the marriage, husband 

was employed as an upper management business executive. 

 Husband admits that he committed adultery during the period 

1986-1989. After husband told wife of the affair in 1989, the 

two reconciled and joined an adultery self-help group. In 1990 

or 1991, wife discovered evidence that husband had resumed his 

affair. After her discovery, wife moved out of the marital 

bedroom, although she remained in the marital home. Husband lost 

his job in May 1991, although he continued to receive income from 

his position until May 1992. On January 30, 1993, husband moved 

out of the marital home, and wife filed for divorce. 

 The trial court referred the case to a commissioner, who 

held hearings and filed a report. After the parties filed 

exceptions to the commissioner's report, the trial court issued a 

letter opinion sustaining husband's exception as to the 

commissioner's recommendation for spousal support and related 

issues and overruling most of husband's exceptions. After 

holding an evidentiary hearing, the court awarded wife less 

spousal support than recommended by the commissioner. 
 3 

 I. 

 Spousal Support 

 After taking evidence as to the past and present 

circumstances of the parties, the commissioner to whom the case 

had been referred noted that, "[w]hile husband is currently 

unemployed, the commissioner feels that he has the ability to be 

employed at an income which would warrant an award of spousal 

support to wife of $2,000.00 per month." The trial court elected 

not to follow the commissioner's recommendation, and held 

additional hearings on the issue of spousal support. 

 In its letter opinion of July 17, 1996, the trial court 

noted that husband, age 62, had been temporarily employed at a 

rate of $75,000 per year from August 1995 to October 1995, but 

that husband had virtually no income for 1994, and was currently 

unemployed. The court also noted that husband had attended real 

estate school, had obtained a Virginia real estate license, had 

taken the necessary steps to obtain a New Jersey real estate 

license, and "hoped" to earn $2,000 per month. The court 

explained that wife, in her fifties, earned $300 per week 

designing jewelry, had been diagnosed with carpal tunnel 

syndrome, and could earn a maximum of $25,000 per year as a 

secretary. The court concluded, "[l]ooking first at the 

considerable resources the parties have resulting from equitable 

distribution and the pertinent factors under § 20-107.1 according 

to the evidence, the court will require that husband pay to the 
 4 

wife . . . the sum of $600.00 per month." The trial court did 

not find that either party was voluntarily under-employed or 

unemployed, and did not impute income to husband or wife. 

Husband argues that the trial court erred in ordering him to pay 

spousal support to wife because he has no income, actual or 

imputed. 

 Whether and how much spousal support will be awarded is a 

matter of discretion for the trial court. Jennings v. Jennings, 

12 Va. App. 1187, 1196, 409 S.E.2d 8, 14 (1991) (citing McGuire 

v. McGuire, 10 Va. App. 248, 251, 391 S.E.2d 344, 347 (1990)). 

Code § 20-107.1 requires a court "to consider the circumstances 

and factors which contributed to the dissolution of the marriage, 

specifically including adultery," in determining whether to make 

an award of spousal support. If the court determines that an 

award should be made, the court is required to consider all the 

factors outlined in Code § 20-107.1. See Rowe v. Rowe, 24 Va. 

App. 123, 139, 480 S.E.2d 760, 767 (1997) (citing Woolley v. 

Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986)). Among 

the other statutory factors, the trial court must evaluate the 

earning capacity of both parties. See Stumbo v. Stumbo, 20 Va. 

App. 685, 691, 460 S.E.2d 591, 594 (1995) (citing Goetz v. Goetz, 

7 Va. App. 50, 51, 371 S.E.2d 567, 567 (1988)) (requiring the 

trial court to consider earning capacity); Srinivasan v. 

Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990) 

(citing McGuire, 10 Va. App. at 251, 391 S.E.2d at 347) 
 5 

(emphasizing that the court must consider the earning capacity of 

both the payor and payee spouse). 

 Code § 20-107.1, like its predecessor Code § 20-107, 

authorizes courts "to consider not only earnings but also 

'earning capacity.'" Jacobs v. Jacobs, 219 Va. 993, 995, 254 

S.E.2d 56, 58 (1979). "Although 'earning capacity' necessarily 

includes actual earnings, it is a broader concept that allows the 

trial court to consider more than actual earnings." Frazer v. 

Frazer, 23 Va. App. 358, 378, 477 S.E.2d 290, 300 (1996). The 

spousal support award, however, "must be based upon the 

circumstances in existence at the time of the award." Payne v. 

Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987). The 

relevant time period includes the immediate past, Stubblebine v. 

Stubblebine, 22 Va. App. 703, 709, 473 S.E.2d 72, 75 (1996) (en

banc), as well as the "'immediate or reasonably foreseeable 

future.'" Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679 

(quoting Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 

(1986)). A spousal support award may not be "premised upon the 

occurrence of an uncertain future circumstance." Jacobs, 219 Va. 

at 995-96, 254 S.E.2d at 58. 

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

the prevailing party below. Cook v. Cook, 18 Va. App. 726, 731, 

446 S.E.2d 894, 896 (1994) (citing Steinberg v. Steinberg, 11 Va. 

App. 323, 325, 398 S.E.2d 507, 508 (1990)). So viewed, the 

evidence supports the court's assessment of each of the parties' 
 6 

earning capacity. The court heard testimony that since the 

separation, wife had worked at a number of low-paying jobs. 

Wife's most recent job prior to the separation had been in 1986, 

and she had attempted but failed to bring her typing and 

accounting skills up to date. Wife had been diagnosed with 

carpal tunnel syndrome in 1980, and had four bones in her hands 

surgically fused together. At the time of the hearing, wife was 

performing piecework jewelry design, for which she was paid up to 

$300 per week. 

 The court also heard evidence that husband received his real 

estate license in January 1995, joined Coldwell Banker real 

estate company, and earned $8,497 in 1995 before taking a 

ninety-day position with One Call Medical. Husband worked for 

One Call Medical until February 12, 1996, where he earned 

approximately $6,000 per month. At the time of the hearing, 

husband had passed the New Jersey real estate examination, 

rejoined Coldwell Banker, and had been in training for three 

weeks. As a real estate agent, husband hoped to earn $2,000 per 

month selling real estate. This evidence supports the findings 

of the court, and the court did not abuse its discretion in 

fashioning a spousal support award of $600 per month based on 

this evidence. 

 Husband also alleges that the trial court required him to 

use his portion of the equitable distribution award to pay 

spousal support. Code § 20-107.1(8) requires the trial court to 
 7 

consider "[t]he provisions made with regard to the marital 

property under § 20-107.3" in fashioning spousal support. As 

husband argues, however, it is improper for a trial court to 

treat assets divided in equitable distribution as income. Ray v. 

Ray, 4 Va. App. 509, 514, 358 S.E.2d 754, 757 (1987); see, e.g., 

Dotson v. Dotson, 24 Va. App. 40, 44, 480 S.E.2d 131, 132-33 

(1997) (describing the "'distinct difference . . . between a 

spousal support award and a monetary award'" (quoting Brown v. 

Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368 (1987))). "[A] 

decree which singles out this factor [regarding distribution of 

the marital property] to the exclusion of others, and which 

essentially treats the . . . spouse's marital assets as income, 

cannot withstand scrutiny on appeal." Zipf v. Zipf, 8 Va. App. 

387, 399, 382 S.E.2d 263, 270 (1989). 

 The trial court did not abuse its discretion in fashioning 

the spousal support award. It is important to note that the 

trial court's decision turns on husband's earning capacity rather 

than imputed income or principal or income from the distribution. 

 The trial court's letter opinion of July 17, 1996, reveals that 

the trial court gave primary consideration to the age and earning 

capacity of the parties. The court reviewed the current earnings 

and earning prospects of the parties, and considered the 

testimony of husband, wife, and the vocational expert. The court 

also considered the expenses claimed by each party. Finally, the 

court stated that it had considered "the pertinent factors under 
 8 

§ 20-107.1." We find that the trial court properly considered 

the age, expenses, distribution of assets, and earning capacity 

of the parties, as well as other statutory factors, in fashioning 

the spousal support award, and thus acted within its discretion. 
 9 

 II. 

Classification of Property 

 The trial court affirmed the commissioner's decision to 

trace the contributions of both parties to the first marital home 

and award both parties a credit for their contributions. The 

commissioner recommended that "the proceeds should be divided 

equally with offsets to each party for their contribution of 

separate property when the cycle of home buying began in 1978." 

The commissioner recommended a credit of $23,500 for husband and 

a credit of $50,061 for wife to reflect each party's separate 

contributions to the purchase of the first marital home on John 

Drive. Husband excepted to this recommendation, arguing that 

wife could not trace $20,061 of the $50,000 she was credited to 

the separate contribution she made to the purchase of the marital 

property and that he could trace an additional $20,000 as his 

separate property. 

 In affirming the finding of the commissioner, the trial 

court agreed with wife that, apart from the $23,500, "any other 

contributions cannot be traced directly from 1978 to the current 

equities or properties of the parties." The court found, 

"[t]here is no direct tracing evidence resulting from this sale 

[of the John Drive home] to the present asset picture to mandate 

or require any additional credit where there might otherwise be 

on actual value tracing to current assets." The court went on to 

note "that the proceeds from the sale of the parties' home in 
 10 

Richmond cannot be directly traced to a specific source [because] 

the many prior sale proceeds from other homes purchased during 

the marriage and the commingling of other funds[] mak[e] tracing 

difficult if not impossible." The trial court concluded that 

wife's credit was justified because all of her contribution went 

to pay marital bills, even though $20,061 was not used to 

purchase the first marital residence or other identifiable asset. 

 A commissioner's findings of fact which have been accepted 

by the trial court "are presumed to be correct when reviewed on 

appeal and are to be given 'great weight' by this Court. The 

findings will not be reversed on appeal unless plainly wrong." 

Rowe, 24 Va. App. at 140, 480 S.E.2d at 768 (citations omitted). 

 According to Code § 20-107.3(A)(3)(e), "[w]hen marital 

property and separate property are commingled into newly acquired 

property resulting in the loss of identity of the contributing 

properties, the commingled property shall be deemed transmuted to 

marital property," unless the contributed property is retraceable 

and not a gift. We have explained the requirements of tracing 

under Code § 20-107.3(A)(3): 

 In order to trace the separate portion of 

hybrid property, a party must prove that the 

claimed separate portion is identifiably 

derived from a separate asset. This process 

involves two steps: a party must (1) 

establish the identity of a portion of hybrid 

property and (2) directly trace that portion 

to a separate asset. 

Rahbaran v. Rahbaran, 26 Va. App. 195, 207, 494 S.E.2d 135, 141 

(1997) (citing Code § 20-107.3(A)(3)(d)-(f)). "[T]he party 
 11 

claiming a separate interest in transmuted property bears the 

burden of proving retraceability." von Raab v. von Raab, 26 Va. 

App. 239, 248, 494 S.E.2d 156, 160 (1997) (citing Code 

§ 20-107.3(A)(2)).2

 Assuming without deciding that husband's $20,000 

contribution was separate property when he acquired it, we hold 

that the trial court did not err in finding that husband failed 

to present sufficient evidence of tracing to establish his claim 

that he should be awarded $20,000 as his separate property. 

 Viewing the evidence in the light most favorable to wife, 

husband cannot establish the separate identity of any portion of 

the hybrid property, or directly trace the claimed separate 

portion to his original contribution of separate property. In 

Rowe, 24 Va. App. at 136, 480 S.E.2d at 766; von Raab, 26 Va. 

App. at 249, 494 S.E.2d at 161; and Rahbaran, 26 Va. App. at 

209-10, 494 S.E.2d at 142, we addressed the question of "multiple 

source tracing," in which marital and separate property are 

combined to acquire a single piece of hybrid property. See Brett 

 

 2It is important to note that two tracing issues are not 

presented by this case because they are not argued by the 

parties. Neither party claims that he or she is entitled to 

tracing of appreciation on separate assets. See Code 

§ 20-107.3(A)(1); Mann v. Mann, 22 Va. App. 459, 464-65, 470 

S.E.2d 605, 607-08 (1996); Lambert v. Lambert, 6 Va. App. 94, 

104-05, 367 S.E.2d 184, 190-91 (1988). In addition, neither 

party addresses the gift provisions of the transmutation statute. 

See Code § 20-107.3(A)(3)(d)-(g); Lightburn v. Lightburn, 22 Va. 

App. 612, 616-17, 472 S.E.2d 281, 283 (1996); Theismann v. 

Theismann, 22 Va. App. 557, 578, 471 S.E.2d 809, 818 (1996) 

(Annunziata, J., concurring in part and dissenting in part), 

aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en banc) (mem.). 
 12 

R. Turner, Equitable Distribution of Property 266 (1994). This 

case, in addition, presents the additional problem of "multiple 

destination tracing," in which only a portion of hybrid property 

is used to acquire or invest in additional properties, either 

simultaneously or successively. Id. at 268. To determine 

whether a party's separate property can be retraced under such 

circumstances, courts have adopted widely varying approaches to 

address the character of withdrawals from hybrid accounts. See

J. Thomas Oldham, Tracing, Commingling, and Transmutation, 23 

Family L.Q. 219, 230-33 (1989) (describing approaches). Whatever 

approach is used, it is clear that in the absence of sufficient 

evidence establishing the identity of separate funds throughout 

the multiple investments and withdrawals, the asset in question 

must be deemed marital. Rahbaran, 26 Va. App. at 208-09, 494 

S.E.2d at 141. 

 During the time in which the funds used to purchase the 

houses were placed in various bank and investment accounts, the 

parties continued to conduct withdrawal and deposit transactions 

on the accounts. The record contains numerous gaps in recording 

the simultaneous and sequential uses of the funds husband seeks 

to trace. The evidence showed that husband contributed the 

claimed $20,000 to the first marital home in Wheeling, Illinois. 

 Similarly, wife contributed the proceeds of the sale of her 

separate townhouse to the purchase of the Wheeling house. The 

parties subsequently placed the proceeds of the sale of the 
 13 

Wheeling home into an account along with the parties' paychecks, 

and subsequently invested a portion of the money from the account 

in a home in Freeland, Michigan. The record does not reveal what 

proportion of the money in the account represented the proceeds 

of the Wheeling home, and what proportion represented the 

parties' paychecks. When the parties sold the house in Freeland, 

Michigan, unspecified proceeds of the sale went into an account 

identified as a predecessor to the parties' Merrill Lynch Cash 

Management Account (CMA), which also contained an unknown amount 

of other marital funds. The parties moved to London, England, 

and then back to Connecticut. Upon their return to the United 

States, the parties used a portion of the money in the parties' 

CMA to purchase a house in Westport, Connecticut. The record 

does not establish the proportion of money in the CMA which 

represents the proceeds of the sale of the Freeland home. 

 The parties sold the Westport house and used at least some 

of the proceeds to buy a house in McLean, Virginia, the precise 

amount of which was not established at trial. During the same 

time period, the parties also owned a house in Bloomfield, 

Michigan, although it is unclear what funds were used to purchase 

the Bloomfield house. The parties sold both the McLean and 

Bloomfield houses, and used proceeds in the amount of $500,000 as 

a down payment on the Richmond, Virginia home owned at the time 

of separation. 

 Thus, the record makes clear that husband presented 
 14 

insufficient evidence from which the court could determine the 

identity of his separate funds, and distinguish them from the 

marital property in the hybrid asset, viz., the parties' last 

house in Richmond. Therefore, "'the unknown amount contributed 

from the separate source transmutes by commingling and becomes 

marital property.'" Rahbaran, 26 Va. App. at 208-09, 494 S.E.2d 

at 141 (quoting Turner, supra, at 268); see also Minter v. 

Minter, 432 S.E.2d 720, 725 (N.C. App. 1993) (holding that party 

did not carry his burden to trace transactions made on a marital 

account). 

 Applying the same tracing principles to the classification 

of wife's contribution, we hold that wife's evidence of tracing 

does not support the court's award to her in the amount of 

$20,061.3 The evidence revealed, and the commissioner noted, 

that wife contributed $20,061 of the $50,061 credit to pay 

unspecified "marital bills." The evidence fails to establish 

that wife contributed these funds toward the value of an 

 

 3In an attempt to avoid the application of the tracing 

doctrine and its result, wife argues that the trial court awarded 

her a credit under equitable distribution principles, rather than 

applying tracing rules to determine her separate property under 

classification principles, citing Pommerenke v. Pommerenke, 7 Va. 

App. 241, 249, 372 S.E.2d 630, 634 (1988), in support. In 

Pommerenke, 7 Va. App. at 249, 372 S.E.2d at 634, we held, under 

a previous version of Code § 20-107.3(A), that "the restoration 

of a down payment made from separate property based on the 

application of the eleven factors of Code § 20-107.3(E), rather 

than the automatic restoration of such down payment, constitutes 

the proper application of the statute." Our reading of the 

rulings of the commissioner and the trial court, however, reveals 

that the trial court applied tracing principles to both wife and 

husband. 
 15 

identifiable asset, or to the acquisition of an identifiable 

asset. In short, wife has not pointed to any separate or hybrid 

asset owned at the time of separation to which she claims the 

$20,061 of her separate funds may be traced. Accordingly, the 

trial court erred in identifying this portion of wife's 

contribution as separate. Rahbaran, 26 Va. App. at 208, 494 

S.E.2d at 141. 

 III. 

Equitable Distribution Award 

 The trial court affirmed the commissioner's rulings on the 

issue of equitable distribution, and issued a final decree 

setting out the terms of the equitable distribution. Husband 

contends that the commissioner and court erred in their 

consideration of the statutory factors. 

 A commissioner's findings of fact which have been accepted 

by the trial court "are presumed to be correct when reviewed on 

appeal and are to be given 'great weight' by this Court. The 

findings will not be reversed on appeal unless plainly wrong." 

Rowe, 24 Va. App. at 140, 480 S.E.2d at 768 (citations omitted). 

The amount and form of any equitable distribution award "are 

matters committed to the sound discretion of the trial court, 

[but] 'any division or award must be based on the parties' 

equities, rights and interests in the property.'" Theismann v. 

Theismann, 22 Va. App. 557, 565, 471 S.E.2d 809, 812 (1996) 

(quoting Alphin v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d 572, 
 16 

577 (1992)), aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en

banc) (mem.). In fashioning an equitable distribution award, the 

trial court must consider each of the statutory factors, but may 

determine what weight to assign to each of them. Booth v. Booth, 

7 Va. App. 22, 28, 371 S.E.2d 569, 573 (1988). In challenging 

the court's decision on appeal, the party seeking reversal bears 

the burden to demonstrate error on the part of the trial court. 

D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468 S.E.2d 140, 143 

(1996) (citing Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 

S.E.2d 857, 859 (1992)). 

 A. 

Consideration of Husband's Support 

for Former Spouse and for Wife's Children 

 Husband contends that the trial court erred in giving 

consideration to his use of at least $50,000 of marital funds to 

make court-ordered support payments to a former spouse. Husband 

also contends that the court failed to consider his support for 

wife's children during the marriage. 

 Husband brought approximately $50,250 in intangible personal 

property into the marriage. Husband argued that he should 

receive a greater portion of the intangible property than the 

principal owned at the time of marriage because of the earning 

record of the funds, while wife argued that husband's share of 

the intangible property should be reduced by the spousal support 

paid by husband to his former wife during the marriage, which 

totalled more than $50,000. The trial court found that the funds 
 17 

husband brought into the marriage were transmuted by commingling 

into marital property, and could not be treated as his separate 

property as they could not be traced to a current asset. Thus, 

in fashioning a monetary award which reflected this contribution, 

the trial court was guided by the statutory factors for equitable 

distribution of marital property set forth in Code § 20-107.3(E). 

 In considering the statutory factors, the court, inter alia, 

balanced husband's monetary contributions to the marriage against 

his use of marital funds to support his former spouse, and 

awarded husband $44,856 for the intangible personal property, 

with the remainder of the assets divided equally. 

 The specific question to be addressed by this Court is 

whether the payment of separate debt with marital funds may be 

considered by the trial court as a factor in fashioning an 

equitable distribution award. We hold that the court may, in the 

exercise of its discretion, consider payment of separate debt 

with marital funds in fashioning an equitable distribution award. 

 While the specific question husband raises is a matter of 

first impression in Virginia, the principles underlying its 

resolution are well established. It is beyond dispute that the 

trial court is required to consider all the factors set forth in 

Code § 20-107.3(E) in determining the amount of any monetary 

award and the division of marital property. See, e.g., Taylor v. 

Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). Code 

§ 20-107.3(E)(2) requires the court to consider "[t]he 
 18 

contributions, monetary and nonmonetary, of each party in the 

acquisition and care and maintenance of [the] marital property of 

the parties." "[C]ircumstances that affect the [marital] 

partnership's economic condition are factors that must be 

considered for purposes of our equitable distribution scheme." 

Aster, 7 Va. App. at 5, 371 S.E.2d at 836. This Court has made 

clear that both affirmative and negative monetary contributions 

to the marital partnership are to be considered. See, e.g., 

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323, 

325 (1995); Traylor v. Traylor, 19 Va. App. 761, 766, 454 S.E.2d 

744, 747 (1995). Indeed, there appears to be general agreement 

with this principle. Turner, supra, at 565. Those contributions 

which impact on the value of the marital estate have been of 

particular concern to this Court. O'Loughlin, 20 Va. App. at 

528, 458 S.E.2d at 326; Smith v. Smith, 18 Va. App. 427, 431, 444 

S.E.2d 269, 273 (1994); Gamer v. Gamer, 16 Va. App. 335, 341, 429 

S.E.2d 618, 623 (1993); Aster, 7 Va. App. at 5-6, 371 S.E.2d at 

836. A court need not find waste in order to consider negative 

contributions in fashioning an equitable distribution award. See

O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326; cf. Booth, 7 

Va. App. at 29, 371 S.E.2d at 573 (holding that unpaid attorneys' 

fees constitute debt which the trial court properly considered in 

fashioning equitable distribution award although the debt was not 

waste). 

 In dual classification states such as Virginia, the use of 
 19 

marital funds for non-marital purposes can be considered as a 

factor in determining an equitable distribution award. Turner, 

supra, at 572. For example, where marital funds are used to pay 

the separate debts of one of the parties, a court may properly 

consider that fact as a negative monetary contribution to the 

marital property. Adams v. Adams, 443 S.E.2d 780, 781 (N.C. App. 

1994) ("A reduction in the separate debt of a party to a 

marriage, caused by the expenditure of marital funds . . . is 

properly considered as a distributional factor . . . ."); Fenske 

v. Fenske, 542 N.W.2d 98, 102-03 (N.D. 1996) (holding that trial 

court did not err in considering husband's premarital debts paid 

off during the marriage with commingled funds in the equitable 

distribution award). In addition, we have found that support 

obligations arising from a prior marriage may constitute such a 

separate debt. Hayes v. Hayes, 21 Va. App. 515, 519, 465 S.E.2d 

590, 592 (1996) (finding that debt incurred to pay child support 

to a former spouse was separate debt); see Orlandi v. Orlandi, 23 

Va. App. 21, 29, 473 S.E.2d 716, 720 (1996) (indicating that a 

new spouse is not required to support the other spouse's 

children), reh'g en banc granted, appeal withdrawn (1996). 

 Based on Virginia's statutory scheme and the cases which 

have applied it, we hold that the trial court could properly 

consider husband's use of marital funds to pay his prior support 

obligations as a negative monetary contribution in fashioning its 

equitable distribution award. Accord Dobbyn v. Dobbyn, 471 A.2d 
 20 

1068, 1076-78 (Md. Ct. Spec. App. 1984); Jensen v. Jensen, 877 

S.W.2d 131, 135 (Mo. Ct. App. 1994); McGee v. McGee, 648 A.2d 

1128, 1133-34 (N.J. Super. Ct. App. Div. 1994); Turner, supra, at 

594.4 This view is premised on the clear language of Code 

§ 20-107.3(E) and the underlying legislative intent to allow the 

court to consider all contributions to the acquisition, care, and 

maintenance of the marital property, both positive and negative. 

See Code § 20-107.3(E)(2). Consideration of the use of marital 

funds to pay separate debt, such as support to a former spouse, 

properly falls under the trial court's consideration of the 

statutory factors. As such, this case does not turn on the 

application of the doctrine of "waste."5

 In short, under 

Virginia's statutory scheme, which encompasses broad directives 

to the trial court to consider the parties' monetary and 

 

 4In Bliss v. Bliss, 898 P.2d 1081, 1083-84 (Idaho 1995), the 

Supreme Court of Idaho held that a husband's use of marital funds 

to pay attorney's fees and a judgment from a prior divorce did 

not meet the requirements of the community property 

"reimbursement to the community" doctrine because the community 

funds "were used to pay [his] antenuptial, unsecured debts" 

rather than "used to enhance the value of [his] separate 

property," and therefore fell outside the scope of the 

"reimbursement" doctrine. 

 5The doctrine of waste is implicated where a spouse 

dissipates assets "in anticipation of divorce or separation for a 

purpose unrelated to the marriage and in derogation of the 

marital relationship at a time when the marriage is in jeopardy." 

Booth, 7 Va. App. at 27, 371 S.E.2d at 572. In Rosenfeld v. 

Rosenfeld, 597 So. 2d 835, 837 (Fla. Dist. Ct. App. 1992); and In 

re Marriage of Burgess, 568 N.W.2d 827, 828-29 (Iowa 1997), 

courts held that support payments to a former spouse do not 

constitute waste. We express no opinion on whether support 

payments to a former spouse might, in a proper case, constitute 

waste, as that issue is not before us. 
 21 

nonmonetary contributions to the marital estate, the trial court 

properly considered husband's use of marital funds to pay support 

to his former spouse. 

 Husband also contends that the commissioner failed to 

consider his support for wife's children by a prior marriage in 

determining the equitable distribution. After the parties 

married, they supported three of wife's children and one of 

husband's children in the marital home. The trial court 

concluded that the commissioner considered husband's support of 

wife's children under Code § 20-107.3(E)(10), the so-called 

"catchall" factor, notwithstanding the absence of any reference 

to the factor in the commissioner's report. 

 The court could consider husband's support for wife's 

children pursuant to two statutory provisions: (1) as a 

"contribution[], monetary and nonmonetary, of each party to the 

well-being of the family"; and (2) as an "other factor[] as the 

court deems necessary or appropriate to consider in order to 

arrive at a fair and equitable monetary award." Code 

§ 20-107.3(E)(1), (10); accord Cox v. Cox, 882 P.2d 909, 920 

(Alaska 1994) (citing Burcell v. Burcell, 713 P.2d 802, 805 

(Alaska 1986)). Husband's contribution to support for wife's 

children, however, need only be considered under the factors 

outlined in Code § 20-107.3; he is not entitled to a 

dollar-for-dollar credit for contributions he may have made. See

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 
 22 

(1989). The commissioner heard evidence on husband's support for 

wife's children, and the trial court ruled that the commissioner 

had considered this factor. Husband does not point to any 

evidence that this conclusion is unjustified or unsupported by 

the record, and we find none. 

 B. 

Consideration of Fault 

 Code §§ 20-107.1 and 20-107.3 require a court to consider 

"the circumstances and factors which contributed to the 

dissolution of the marriage," including adultery, in determining 

an equitable distribution award. A party claiming adultery by 

the other party must prove it by clear and convincing evidence. 

Seeman v. Seeman, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987). 

Condonation of adultery nullifies the legal effect of the 

adultery, but "[c]ondoned adultery is revived where the guilty 

party resumes his association with his paramour." Cutlip v. 

Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) (citing 

McKee v. McKee, 206 Va. 527, 532, 145 S.E.2d 163, 166 (1965)). 

 In Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836-37, this 

Court held that a trial court must consider fault in terms of its 

economic impact on the marital estate. In O'Loughlin, 20 Va. 

App. at 528, 458 S.E.2d at 326, however, we held that a court may 

consider a party's negative nonmonetary contributions to a 

marriage arising out of his or her adultery regardless of its 

economic impact. We also "reaffirmed our holding in Aster that 
 23 

fault could not be used as a 'wild card' to justify an otherwise 

arbitrary award." Theismann, 22 Va. App. at 569, 471 S.E.2d at 

815 (citing O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326). 

 The commissioner found that husband committed adultery 

during the marriage. The commissioner stated that he had 

considered the relevant statutory factors in fashioning the 

equitable distribution award, but did not explicitly rely on the 

finding of adultery in explaining the award. The trial court 

granted a divorce on the basis that the parties lived separate 

and apart for more than one year. 

 After husband excepted to the commissioner's finding, the 

trial court reviewed the issue of adultery. The court affirmed 

the commissioner's finding, explaining the evidence supported the 

commissioner's finding that "the earlier condonation was 

eliminated by later conduct even though the later affair may have 

extended to the time the parties had become separated." The 

court also noted that the evidence supported a finding that "wife 

was reasonably suspect that relations with the first paramour had 

resumed, contributing to the dissolution of the marriage." The 

court stated that although the adultery did not have direct 

economic impact, the commissioner could consider the adultery as 

a negative nonmonetary contribution to the marriage, "if indeed 

he did." 

 Husband argues that the evidence showed that the evidence 

was insufficient to support a finding of uncondoned adultery and 
 24 

that the court should not have considered his adultery for 

economic impact or as a negative nonmonetary contribution. We do 

not reach the question of the sufficiency of the evidence because 

we conclude that the commissioner and trial court did not base 

their equitable distribution award on husband's adultery. The 

commissioner and trial court both referred to the evidence of 

husband's adultery, but did not explicitly base any distribution 

decision on husband's adultery; upon noting that both parties had 

made nonmonetary contributions to the marriage, the commissioner 

merely mentioned that husband had committed adultery during the 

marriage. In turn, the trial court noted that the commissioner 

could consider husband's adultery as a negative nonmonetary 

contribution under O'Loughlin, but expressed skepticism that the 

commissioner had actually done so. 

 In the absence of a specific finding by the commissioner or 

trial court that husband's adultery affected the distribution of 

assets, we will not presume that the court improperly relied on 

husband's adultery. See Pommerenke v. Pommerenke, 7 Va. App. 

241, 251, 372 S.E.2d 630, 635 (1988) ("Viewing the totality of 

the evidence as it relates to other factors in Code 

§ 20-107.3(E), we would be required to speculate to assign merit 

to [wife's] argument. The trial court in fashioning the monetary 

award certainly did not state that it was influenced by or 

attributed any particular weight to the fact that it found [wife] 

guilty of adultery."). The brief mention of husband's adultery 
 25 

among many other factors considered by the commissioner and court 

does not support an inference that the commissioner and trial 

court improperly relied on husband's adultery, particularly in 

the absence of a specific, express finding that they did so. Id.

 Husband has not shown otherwise. See D'Agnese, 22 Va. App. at 

153, 468 S.E.2d at 143 (citing Lutes, 14 Va. App. at 1077, 421 

S.E.2d at 859) (explaining that the party seeking relief on 

appeal bears the burden to show reversible error). 

 Husband also argues that the court erred in adopting the 

commissioner's finding that wife was without legal fault in the 

dissolution of the marriage. In order to constitute legal fault, 

marital cruelty "must be so serious that it makes the 

relationship intolerable or unendurable." McLaughlin v. 

McLaughlin, 2 Va. App. 463, 467, 346 S.E.2d 535, 537 (1986) 

(citing Hoback v. Hoback, 208 Va. 432, 436, 158 S.E.2d 113, 116 

(1967)). All of the evidence of marital cruelty came from 

husband, and wife and her three children all contradicted 

husband's testimony. Under the governing standard of review, we 

find that the trial court resolved this conflict in the evidence 

in wife's favor, and will not reverse the trial court's 

determination. See Farley v. Farley, 9 Va. App. 326, 328, 387 

S.E.2d 794, 795 (1990). 

 C. 

Allocation and Consideration of Marital Debt 

 In determining an equitable distribution award, a court must 
 26 

consider the "debts and liabilities of each spouse [and] the 

basis for such debts and liabilities." Code § 20-107.3(E)(7). 

Husband contends that the commissioner and trial court failed to 

properly consider the debt associated with the marital property 

known as Rochester Housing Associates Two Limited Partnership and 

the preparation of the parties' joint 1992 tax return by DeLoitte 

& Touche. Husband introduced evidence that Rochester Housing 

Associates was encumbered by $22,400 in debt, which he reduced to 

$17,000 after the parties' separation, and that he paid Deloitte 

& Touche approximately $2,300 to prepare the parties' joint 1992 

tax return. 

 Husband's argument is without merit. In allocating the 

marital liabilities, the commissioner found that husband should 

receive a credit of $44,856 against the intangible marital 

assets. In making this recommendation, the commissioner stated 

that, "[h]usband should not be allowed an offset for the 

Rochester Housing Associates account or the DeLoitte and Touche 

bill when making an accounting, the commissioner having already 

taken these into account in making an equitable distribution of 

the property." Similarly, evidence of husband's $5,400 payment 

to reduce the debt on the Rochester Housing Associates account 

was before the commissioner, and there is no reason to believe 

that the commissioner did not take the payment into account. The 

trial court addressed husband's arguments, affirmed the 

commissioner, and noted that the commissioner properly resolved 
 27 

the conflicts in the evidence. 

 We find no basis in the record in support of husband's 

contention that the court failed to consider husband's debt. 

Husband is not entitled to a dollar-for-dollar credit for 

post-separation contributions made to the care, acquisition, or 

maintenance of marital property. von Raab, 26 Va. App. at 

249-50, 494 S.E.2d at 161 (citing Ellington, 8 Va. App. at 56, 

378 S.E.2d at 630). The court was not presented with an issue of 

valuation, in which debt must be fully considered in establishing 

value,6

 but rather with the issue of fashioning an equitable 

distribution award, in the exercise of its discretion after 

considering the statutory factors. See Booth, 7 Va. App. at 28, 

371 S.E.2d at 573. Unless a party can show evidence to the 

contrary, we presume that the trial court properly applied the 

law to the facts. Bottoms v. Bottoms, 249 Va. 410, 414, 457 

S.E.2d 102, 105 (1995) (citing Yarborough v. Commonwealth, 217 

Va. 971, 978, 234 S.E.2d 286, 291 (1977)). 

 Because we find that the trial court improperly awarded a 

$20,061 credit to wife, we reverse its decision and remand so 

that the trial court may address the issue. 

 Affirmed in part, and 

 reversed in part.

 

 6See, e.g., Trivett v. Trivett, 7 Va. App. 148, 151, 371 

S.E.2d 560, 562 (1988) (holding that a valid debt secured by 

marital property reduces the value of the property by the amount 

of the debt). 
 28 

Benton, J., concurring in part and dissenting in part. 

 I concur in Parts I and II; however, I dissent from Part 

III. Therefore, I would reverse the decree and remand for 

reconsideration of the monetary award for the reason stated in 

Part II and for the additional reasons contained below. 

 (A) 

 The evidence proved that the husband brought into the 

marriage $239,000 in assets that were used for marital purposes. 

 During the marriage, he annually earned substantial salaries, 

including $409,000 in one year, that were used to support the 

wife and her children from a prior marriage. At trial, the wife 

argued that, during the course of their nineteen-year marriage, 

the husband "depleted the marital estate by $50,000 to pay a 

separate debt [of court-ordered support to his former spouse]." 

Apparently believing the evidence proved dissipation, the trial 

judge agreed with the wife's argument and "conclude[d] that the 

commissioner recognized [the wife's] argument that [the 

husband's] contributions to the marriage should be reduced by 

spousal support he paid to his ex-wife and that . . . [the 

commissioner] considered these payments." The majority opinion 

rules that the trial judge did not err because the husband's 

payments were appropriately considered under Code 

§ 20-107.3(E)(2) as a negative monetary contribution to the 

marriage. I believe both rulings are incorrect. 

 "Code § 20-107.3, providing for equitable distribution, is 
 29 

based on the notion that marriage is an economic partnership in 

which the parties, through varying contributions, monetary and 

nonmonetary, to the acquisition, maintenance, and care of 

property and to the well-being of the family, may accumulate 

marital wealth." Dietz v. Dietz, 17 Va. App. 203, 210, 436 

S.E.2d 463, 467 (1993). Code § 20-107.3 mandates an equitable 

distribution of the parties' accumulated marital wealth. See

Gamble v. Gamble, 14 Va. App. 558, 570, 421 S.E.2d 635, 642 

(1992). Thus, we have ruled that "what has always been 

contemplated by the Code § 20-107.3 scheme for equitable 

distribution of the marital wealth of the parties . . . [is] a 

distribution which will equitably 'compensate a spouse for his or 

her contribution to the acquisition of property obtained during 

the marriage.'" Id. at 569, 421 S.E.2d at 642 (citation 

omitted). 

 A trial judge may not apply the statute in a manner that 

does not further the statute's purpose and policy. "Every 

statute is to be read so as to 'promote the ability of the 

enactment to remedy the mischief at which it is directed.'" 

Bulala v. Boyd, 239 Va. 218, 227, 389 S.E.2d 670, 674 (1990) 

(citation omitted). Nothing in the letter or the spirit of the 

statute authorizes judges to examine the parties' lifestyle 

choices and conclude post facto that they could have better used 

their incomes to accumulate more wealth. Thus, a trial judge may 

not, under the guise of applying Code § 20-107.3(E), rotely 
 30 

consider a party's use of income or marital assets to pay a debt 

during the course of marriage as a factor in the distribution of 

marital property or in making a monetary award. We have 

recognized that the statute is not a license for judges to make a 

post facto examination of the spending of the husband and wife 

during the marriage to determine whether they made prudent 

decisions in using their incomes or marital assets to pay for 

necessities of life. Thus, we previously have stated that, "at 

least until the parties contemplate divorce, each is free to 

spend marital funds." Booth v. Booth, 7 Va. App. 22, 27, 371 

S.E.2d 569, 572 (1988). 

 Although some of the factors in Code § 20-107.3(E) might be 

broadly read to encompass future conduct, in Marion v. Marion, 11 

Va. App. 659, 401 S.E.2d 432 (1991), we noted that the 

legislative purpose had to be considered in making equitable 

distributions. See id. at 668, 401 S.E.2d at 438. We held that 

"'Code § 20-107.3 provides for the equitable distribution of the 

accumulated marital wealth between the marital parties; it does 

not contemplate consideration of the future ability of one spouse 

to accumulate what will be separate property or the future needs 

of the other spouse.'" Id. (citation omitted). See also

Stainback v. Stainback, 11 Va. App. 13, 21-22, 396 S.E.2d 686, 

691-92 (1990). 

 We also have ruled that not all past conduct of the parties 

during a marriage affects the equitable distribution of property. 
 31 

 In Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994), the 

wife contended the trial judge erred by not considering as a 

factor the "husband's dissipation of marital assets, which she 

alleges occurred . . . during the course of his fifteen-year 

extramarital affair." Id. at 430, 444 S.E.2d at 272. In 

rejecting that contention, we ruled as follows: 

 Our case law uniformly holds that the 

challenged use of funds must be "in 

anticipation of divorce or separation . . . 

[and] at a time when the marriage is in 

jeopardy." Wife is correct in her assertion 

that the Court in Booth defined waste only 

"generally" and did not purport to set forth 

"an exclusive definition." Nevertheless, to 

date, Virginia's appellate courts have 

applied this rule only to funds spent 

contemporaneously with the marital breakdown, 

and we will not expand the definition to 

cover expenditures made for a fifteen-year 

period which were not specifically for the 

purpose of depleting the marital estate and 

where there was no evidence that there was an 

irreconcilable breakdown of the marriage. 

Accordingly, we conclude that the trial court 

did not err by finding that wife failed to 

show that husband's pre-separation 

expenditures constituted dissipation of 

marital assets. 

Id. at 430-31, 444 S.E.2d at 272 (citations omitted). 

 During the marriage, the parties may at any time properly 

use marital income that they earn for nonmarital purposes. Only 

when one party claims an impropriety or improper dissipation of 

marital assets that impacts a statutory purpose should the court 

intervene and construct a financial accounting of income and 

expenditures during the marriage. No valid purpose of Code 

§ 20-107.3 is served by analyzing the debts the parties paid 
 32 

during the marriage to determine which spouse gained the greater 

benefit from payment of the debt and then using that benefit 

analysis to support a set-off to the other spouse when making a 

distribution of property upon divorce. Obviously, if the debt 

bears some significance to the purpose of the property division, 

such as dissipation in contemplation of or after marital 

dissolution, the evidence establishes a nexus to the statutory 

purpose. 

 In this case, the husband's payment during the marriage of 

spousal support to a former spouse bears no significant 

relationship to the statutory purpose of Code § 20-107.3. It is 

not unusual that parties enter into marriage with either or both 

having separate antenuptial debts. The payments of spousal 

support in this case were not made to obtain or maintain a 

separate asset that the husband can sell, trade, or transfer for 

money after the divorce. No inequity justifies the trial judge's 

use of these payments to increase the property distributed to the 

wife on divorce. The husband's spousal support payments were no 

different than any other expenditure made during the marriage for 

a purpose solely benefitting the husband, such as dues to a golf 

association, membership in a racquetball club, contributions to a 

church building fund, dues at a private club, or expenditures on 

a hobby that did not result in the acquisition of an asset. 

 To authorize a set-off or credit in the distribution of the 

marital property because certain expenditures made during the 
 33 

marriage benefitted the husband finds no support in the language 

or purpose of the statute. Indeed, the lack of logic in this 

decision is doubly manifest because the record contains no 

indication that the trial judge considered the favorable tax 

benefits the parties received as a result of the spousal support 

payments. To the extent the wife contends the husband's payments 

deprived her of the ability to spend the money during the 

marriage for something that directly benefitted her, she ignores 

the benefit the tax savings provided. 

 No evidence in this record tends to prove the husband's 

payment of spousal support to his former spouse pursuant to a 

court's order affected any factor contained in Code 

§ 20-107.3(E). Clearly, the trial judge confused this issue with 

"dissipation" or "waste." 

 Although not an exclusive definition[,] 

"waste" may be generally characterized 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 at a time when 

the marriage is in jeopardy. Just as a court 

may consider positive contributions to the 

marriage in making an equitable distribution 

award, it can also consider "negative" 

contributions in the form of squandering and 

[d]estroying marital resources. The goal of 

equitable distribution is to adjust the 

property interests of the spouses fairly and 

equitably. The mechanism to accomplish that 

goal is the monetary award. To allow one 

spouse to squander marital property is to 

make an equitable award impossible. On the 

other hand, at least until the parties 

contemplate divorce, each is free to spend 

marital funds. 
 34 

Booth, 7 Va. App. at 27, 371 S.E.2d at 572. 

 The Virginia cases do not support either the trial judge's 

ruling or the majority's opinion. In Gamer v. Gamer, 16 Va. App. 

335, 429 S.E.2d 618 (1993), the husband and wife received during 

the marriage money that should have been sent to the husband's 

former spouse. The husband and wife spent the money for living 

expenses. See id. at 338-39, 429 S.E.2d at 621. The debt, which 

was created by their receipt and expenditure of money that was 

not theirs, was reduced to a judgment and became a lien against 

the marital residence. See id. at 341, 429 S.E.2d at 623. 

Applying Code § 20-107.3(E)(7), we ruled that "[w]here the debt 

was secured by marital assets or was a lien on marital property, 

the purpose, nature, and character of the debt and who benefitted 

from it were factors to be considered by the chancellor in 

distributing the property or in fashioning the monetary award." 

Gamer, 16 Va. App. at 341, 429 S.E.2d at 623. Obviously, when 

the husband and wife misappropriated and spent funds during the 

marriage that were not theirs and thereby created a debt that 

resulted in a lien on marital property, that debt was a marital 

debt created by the husband and the wife. 

 In Hayes v. Hayes, 21 Va. App. 515, 465 S.E.2d 590 (1996), 

we did not rule that the husband's share of the marital estate 

could be reduced by the amount of child support payments the 

husband made during the marriage for the child of his prior 

marriage. Because the wife had made loans to the husband "for 
 35 

the benefit of the husband's separate property," id. at 515, 465 

S.E.2d at 591, the trial judge found that the husband's debt to 

the wife was separate debt. See id. at 519, 465 S.E.2d at 592. 

We upheld the trial judge's finding that the debt was a separate 

debt, and we ruled that the trial judge erred in not determining 

pursuant to Code § 20-107.3(C) whether the husband was required 

to repay the borrowed funds. See id. We remanded the matter to 

the trial judge to determine whether to order the husband to pay 

the debt that arose from the loan. See id. In the case we 

decide today, no claim has been made that the husband borrowed 

funds from the wife or that the husband used the wife's funds to 

improve his separate asset. 

 The decision in Orlandi v. Orlandi, 23 Va. App. 21, 473 

S.E.2d 716 (1996), has no bearing on the issues that arise in 

this case. Orlandi concerns issues of child support between two 

divorced parties. No issue of equitable distribution or the 

interpretation of Code § 20-107.3 arose in that case. 

 The majority erroneously treats this issue as if the 

husband's spousal support payments were a contribution made to 

enhance a nonmarital asset that is extant at the divorce. It was 

not. The husband's payment of court-ordered spousal support was 

not a ruse to fund a separate asset. Many of the cases cited by 

the majority were not decided under Virginia law and contain 

instances in which a spouse spent marital assets to obtain or 

enhance a separate asset. In those instances, courts of other 
 36 

states have deemed that a diversion of marital funds to enhance a 

separate asset creates a marital interest in the enhanced 

property. 

 The evidence in McGee v. McGee, 648 A.2d 1128 (N.J. Super. 

A.D. 1994), proved that prior to their marriage, the husband 

purchased the wife's house to save it from foreclosure and to pay 

debts the wife owed. See id. at 1129. He paid only $63,000 for 

the house even though it was valued at $150,000, exclusive of 

furnishings and the surrounding eleven acres of land. The value 

of the furnishings and eleven acres was unknown. See id. After 

the marriage, the husband "denuded the house of $134,000 of 

equity" by borrowing against the property, used the borrowed 

money to pay an obligation to his former spouse, and then 

conveyed the property to himself and the wife. Id. at 1131. The 

court ruled that the husband's conduct effectively used the 

wife's separate assets to pay the husband's pre-existing 

obligations to his former wife. See id. at 1134. Because of the 

husband's misuse of the wife's house prior to and during the 

marriage, the court ruled that under New Jersey law, "[t]he case 

can be viewed from the vantage point of the shared enterprise of 

marriage beginning before the ceremonial act, or as one in which 

equitable remedies such as constructive trust, quasi contract or 

quantum meruit are invocable for equitable reasons." Id. at 

1134. That ruling is not dispositive of issues in this case. 

 In Dobbyn v. Dobbyn, 471 A.2d 1068 (Md. Ct. Spec. App. 
 37 

1984), the court was not concerned with a party's payment of 

support to another spouse during the marriage as a basis for 

making a monetary award. The issue in Dobbyn was whether the 

trial judge could consider the divorced husband's new and future 

family obligations under Maryland's statutory requirement to 

consider '"[t]he economic circumstances of each spouse at the 

time the award is to be made.'" Id. at 1077. 

 In Jensen v. Jensen, 877 S.W.2d 131 (Mo. Ct. App. 1994), the 

court ruled that the husband's payment of child support to a 

former spouse and to a former lover after the husband's 

separation from his current wife was the husband's separate debt. 

See id. at 135. Thus, when the husband liquidated marital 

assets during the separation to pay those debts, the court set 

aside those funds as credits against the husband's share of 

marital assets. See id.

 In Fenske v. Fenske, 542 N.W.2d 98 (N.D. 1996), the trial 

judge found "that the parties had paid off their individual and 

marital debts 'by commingling everything they had.'" Id. at 102. 

 Nothing in the Fenske opinion suggests that the trial judge gave 

either party a distribution based upon a party paying a 

pre-marital debt with marital funds. 

 North Carolina courts have ruled that "[a] reduction in the 

separate debt of a party to a marriage, caused by the expenditure 

of marital funds, is, in the absence of an agreement to repay the 

marital estate, neither an asset nor a debt of the marital 
 38 

estate." Adams v. Adams, 443 S.E.2d 780, 781 (N.C. Ct. App. 

1994). Under that state's law, any such reduction in the 

separate debt may only be considered as a factor if a justifiable 

reason exists. See id. (citing N.C. Gen. Stat. § 50-20(C)(12)). 

 In the case before us, the trial judge accepted the 

commissioner's recommendation "that [the husband's] contributions 

to the marriage should be reduced by spousal support he paid to 

his ex-wife." I believe that the following reasoning, employed 

in Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. Dist. Ct. App. 

1992), is more pertinent to the issues that arise in this case: 

 The wife in this case took the position at 

the time of the divorce that the trial court 

should revisit the parties' expenditures 

throughout the marriage, and should 

retroactively decide that certain of the 

expenditures should not have been made. . . . 

 [T]his amounted to a request for "a 

financial accounting of all of the marital 

years to determine which spouse was the more 

prudent investor and spender. We do not 

choose to start down such a path with this 

case." 

 In the present case the wife complains 

because the husband paid court-ordered 

support to his previous wife, and made other 

payments required by the divorce decree. The 

wife's position is entirely without merit. 

* * * * * * * 

 Payments made to an ex-wife or children 

pursuant to a court order cannot be 

considered as waste or misuse of the marital 

assets of the successor marriage. Those 

obligations were incurred before the 

successor marriage, and obviously the 

subsequent spouse was well aware of them 

prior to the successor marriage. In any 

event, a party cannot refuse to make court 

ordered payments on the grounds that he or 
 39 

she has now remarried. Likewise, payment of 

expenses incident to a prior dissolution, 

such as attorneys' fees, does not constitute 

waste or misuse of marital funds. 

Id. at 837 (citation omitted) (footnotes omitted). 

 Using similar reasoning, the court in In re Marriage of 

Burgess, 568 N.W.2d 827 (Iowa App. 1997), ruled that, in the 

division of marital property upon divorce, a wife was not 

entitled to a set-off or credit for the husband's payment during 

the marriage of spousal and child support to his former wife. 

See id. at 828. The court concluded that it would be inequitable 

to consider those payments as a distribution factor because "the 

payment of the [support] obligation [by the husband] was a 

reasonable and expected aspect of the particular marriage." Id.

 The majority correctly notes that Bliss v. Bliss, 898 P.2d 

1081 (Idaho 1995), involved a division of property on divorce in 

a community property state. However, the principles applied to 

"community" property are not completely unrelated to issues that 

arise regarding "marital" property. In Bliss, the court held 

that the use of community funds to pay antenuptial debts, where 

such payment is unrelated to the enhancement of a separate asset, 

is not a basis upon which a party upon divorce may seek 

reimbursement to the community funds. See id. at 1084. That 

reasoning is valid when analogized to the issue in this case. 

 Simply put, Code § 20-107.3(E) does not authorize judges to 

enrich one of the parties based upon the mere finding that the 

other party, who was the sole source of income during the 
 40 

marriage, used portions of that income to pay debts that the 

party incurred prior to the marriage. In particular, no evidence 

tended to prove that the husband's payment of spousal support to 

his former spouse negatively contributed to his marriage to the 

wife. For these reasons, I would reverse the trial judge's 

equitable distribution decision and remand for reconsideration. 

 (B) 

 Although the trial judge expressly noted that he was 

reducing the husband's equitable distribution award for payments 

the husband made under a court order to support the husband's 

spouse of a prior marriage, the record contains no indication 

that in making the monetary award the trial judge gave any 

consideration to the husband's support, during the marriage, of 

his wife's children from a prior marriage. The trial judge noted 

that "[t]here is no mention by the commissioner of these matters 

[in the report]." Yet, the trial judge assumed the matter was 

considered because the commissioner "does say he has considered 

all the relevant factors which, of course, includes the catch all 

one in § 20-107.3(E)." The irony of the disparity between the 

treatment of this issue and the issue of the husband's payment of 

spousal support to his former wife is palpable. 

 The evidence proved that when the wife's former spouse 

stopped paying child support, the husband supported the three 

children from the wife's prior marriage beginning when the oldest 

child was age fifteen. One of the wife's children continued 
 41 

living in the house four years past the child's majority. The 

husband's salary was the family's sole source of financial 

support. 

 On remand, I would direct the trial judge to expressly 

consider the husband's payments and conduct which contributed to 

the well-being of the family. See Code § 20-107.3(E)(1). 

 (C) 

 The evidence proved that the husband paid $5,400 

post-separation to reduce a marital debt that was associated with 

an asset that had no value. I find no evidence in the record 

that the trial judge adjusted the award to consider that payment. 

 Likewise, the evidence proved that the husband paid $2,282 for 

the preparation of the parties' joint tax return and received no 

credit for that payment. I would also require the trial judge to 

reconsider on remand adjustments for those payments.