James G. Calmes, Jr. v Teresa H. Calmes

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
JAMES G. CALMES, JR. MEMORANDUM OPINION*
v. 	Record No. 2820-95-1 	PER CURIAM
JUNE 11, 1996
TERESA H. CALMES
FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
(Michael A. Robusto; Slipow, Robusto &
Kellam, on brief), for appellant.
(Grover C. Wright, Jr., on brief), for
appellee.
James G. Calmes, Jr., (husband) appeals the decision of the
circuit court awarding Teresa H. Calmes (wife) a share of funds
traceable to husband's personal injury award. 	Husband contends
on appeal that the trial court erred in concluding that there was
sufficient evidence of a gift. 	Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. 	Accordingly, we summarily affirm the decision of the
trial court. 	Rule 5A:27.
Husband's personal injury award for an injury which occurred
prior to the marriage was his separate property. 	Code
§ 20-107.3(A)(3)(c) and (H). 	Husband placed the funds in a joint
account he opened at wife's credit union, and subsequently placed
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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the funds into additional joint accounts. 	Code
§ 20-107.3(A)(3)(f) provides that
[w]hen separate property is retitled in the
joint names of the parties, the retitled
property shall be deemed transmuted to
marital property. 	However, to the extent the
property is retraceable by a preponderance of
the evidence and was not a gift, the retitled
property shall retain its original
classification.
Moreover, subsection (g) provides in part that "[n]o presumption
of gift shall arise under this section where . . . (ii) newly
acquired property is conveyed into joint ownership." 	Whether a
gift was intended is a question of intent. 	See Dean v. Dean, 8
Va. App. 143, 146, 379 S.E.2d 742, 744 (1989).1 Intent is a
question to be determined by the fact finder. 	See generally
Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180,
183 (1991).
The evidence was heard by the commissioner in chancery,
whose report was accepted by the trial court.
The commissioner's report is deemed to be
prima facie correct. 	The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. 	When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . . to
see, hear and evaluate the witness at first
hand." 	Because of the presumption of
correctness, the trial judge ordinarily must
1 On appeal, husband contends that wife was required to
prove a gift by the higher standard of clear and convincing
evidence. 	This argument was not raised below and will not be
addressed for the first time on appeal. 	Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)(citing Rule
5A:18).

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sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted). 	"This rule applies with particular force to
a commissioner's findings of fact based upon evidence taken in
his presence . . . ." 	Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d
292, 296 (1984). 	This Court must affirm the trial court's
decision unless it is plainly wrong or without evidence to
support it. 	McLaughlin v. McLaughlin, 2 Va. App. 463, 466-67,
346 S.E.2d 535, 536 (1986).
The trial court found that evidence supported the
commissioner's implicit finding that husband made a gift to the
marriage of the injury award. 	The court noted that the
commissioner was "clearly aware that [whether or not a gift was
made] was the principal point of contention between the parties."
Wife testified that husband intended to make a gift to the
marriage of the personal injury award. 	The evidence established
that the funds were used by the parties to pay for marital assets
such as automobiles and a boat. 	The financial adviser who
invested the funds for the parties testified that he met with
both parties and that his advice was "based on what their goals
were." 	(Emphasis added.) 	While husband testified that he placed
the funds in a joint account for convenience, he admitted that
the parties used the funds to purchase marital assets and that
the funds would have automatically passed to wife if he had died.

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Therefore, we cannot say the trial court's decision is
plainly wrong or without evidence to support it. 	Accordingly,
the decision of the circuit court is summarily affirmed.
Affirmed.