Mary C. Schuman v. Daniel Schuman

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.

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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 occup 	or forty years. The parties signed the	y Fiddler’s Green f
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.

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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.

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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.

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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

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“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. . . .

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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

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

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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

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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).

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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).

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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

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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 5 0 /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.

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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.

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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 -
v.	reasonable meaning consistent with the other parts of the contract can be given to it.’” Hutter
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 u 	e also	nenforceable, absent a specified method or guideline for fixing rent.”); se
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
on17 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
d	pay off the loan was jointly titled prior to the marriage. Since husband did not prove that he use

- 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

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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.