                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia


MEREDITH ALEXANDER CHALLONER

v.         Record No. 1847-96-1

CYNTHIA PRESSON CHALLONER               MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
MEREDITH ALEXANDER CHALLONER                 APRIL 1, 1997

v.         Record No. 2294-96-1
CYNTHIA PRESSON CHALLONER


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge

           Player B. Michelsen (Donald K. Butler;
           Morano, Colan & Butler, on briefs), for
           appellant.

           John F. Rixey (Rixey and Rixey, on brief),
           for appellee.



     Meredith A. Challoner appeals from a final decree granting

his wife, Cynthia P. Challoner, a divorce, and from an order

denying his petition for modification of support.    Mr. Challoner

contends that the trial court erred (1) in classifying certain

stock as marital property, (2) in fashioning the equitable

distribution award, (3) in determining spousal and child support,

(4) in denying his petition for modification of support, and (5)

in awarding Ms. Challoner attorney's fees.   Because the trial

court erred in classification of the parties' property, we

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
reverse on all issues and remand to the trial court.

     Mr. Challoner contends that the trial court erred in finding

that stock in Hampton Roads Chemical Corporation (HRCC), a

family-owned business, was transmuted from separate property to

marital property.    The parties were married December 16, 1972.

In 1972, prior to the marriage of the parties, Mr. Challoner

received five shares of HRCC from his father.      In 1974, Mr.

Challoner began working for HRCC.       Thereafter, he received stock

in HRCC as follows:   thirty-nine shares in 1984; ten shares in

1987; eleven shares in 1988; and eleven shares in 1989.      Mr.

Challoner argues that the stock was a gift, and, therefore, his

separate property.
     The trial court erred in classifying the five premarital

shares as marital property, determining that this separate

property had been transmuted into marital property.      Plainly, the

five shares of stock acquired by Mr. Challoner prior to his

marriage were separate property.    See Code § 20-107.3(A)(1).

Despite the significant nonmonetary contributions made by Ms.

Challoner to the marital relationship, the statutory framework of

Code § 20-107.3 prevents the transmutation of the stock into

marital property.

     Prior to equitable distribution, a trial court must classify

the parties' property as marital, separate, or part marital and

part separate.   See Code § 20-107.3(A).      The so-called "hybrid,"

or part marital and part separate, property classification



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permits the retention of separate property by the acquiring

spouse, while simultaneously affording the marital partner the

increase in value attributed to the separate property during the

course of the marital relationship.     See Code § 20-107.3(A)(3).

     However, the non-owning spouse must prove that the separate

property increased in value due to contributions of marital

property or the personal efforts of either party.     Id.   While the

trial court found that Mr. Challoner's personal efforts led to a

significant increase in the value of the HRCC stock, no evidence

was presented regarding the premarital value of the stock shares

acquired by Mr. Challoner.   Therefore, we cannot determine the

amount, if any, of the value of the shares that constitutes

marital property.
     We have previously held that:     "prior to the 1990 amendment

to Code § 20-107.3 . . . if the non-owning spouse nevertheless

makes significant monetary or nonmonetary contributions to the

marital relationship, that contribution is sufficient to

transmute what was separate business property into marital

property where the owning spouse devotes his efforts throughout

the marriage to working in the business."     Barnes v. Barnes, 16

Va. App. 98, 104-05, 428 S.E.2d 294, 299 (1993) (emphasis added).

 See Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184 (1988).

Citing Barnes, the trial court found that Ms. Challoner:

          Made significant non-monetary contributions
          to the marital relationship which allowed
          [Mr. Challoner] to spend an enormous amount
          of time developing and enhancing the


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           business. Based on the evidence, the Court
           finds that HRCC was transmuted to marital
           property.


     The 1990 amendment to Code § 20-107.3 limits the potential

transmutation of separate property to marital property to

include:   (1) retention of the classification of the receiving

property when separate and marital property commingle, with a

resulting loss of identity of the contributed property; (2)

acquisition of new property through the commingling of marital

and separate property resulting in the loss of identity of the

contributed properties; and (3) retitling separate property in

the joint names of the parties.    See Code § 20-107.3(A)(3)(d-f).

In this case, the shares of stock owned by Mr. Challoner prior

to his marriage were not retitled in the parties' joint names,

commingled with marital property to acquire new property, or

commingled with marital property in such a manner as to lose its

separate identity.   Therefore, the five shares of stock in HRCC

owned prior to marriage were not transmuted and remain Mr.

Challoner's separate property.

     As for classification of the remaining shares, all property

acquired by either spouse during the marriage "is presumed to be

marital property in the absence of satisfactory evidence that it

is separate property."   Code § 20-107.3(A)(2); Bowers v. Bowers,
4 Va. App. 610, 615, 359 S.E.2d 546, 549 (1987).   Thus, if the

donee presents "sufficient evidence," and the other party

presents no evidence to the contrary, the statutory presumption




                                 - 4 -
of marital property is rebutted.     See Huger v. Huger, 16 Va. App.

785, 788, 433 S.E.2d 255, 257 (1993).

     In this case, Mr. Challoner failed to rebut the statutory

presumption.   While he testified that the shares were gifts, the

commissioner found, and the trial court accepted, that the shares

received during marriage were marital property.    The commissioner

noted that:    "While a gift by definition is normally transferred

'without consideration,' the stock interests conveyed to the

husband were not in reality 'gifts,' but were in return for the

services he rendered" to HRCC.     See Brett R. Turner, Equitable

Distribution of Property, § 5.16 (2d ed. 1994).

     Because the parties' assets were improperly classified, the

trial court must reconsider its equitable distribution, child

support, and spousal support awards.     While we recognize that our

reversal abrogates the trial court's award of attorney's fees to

Ms. Challoner for the hearing on Mr. Challoner's petition to

modify his support obligations, we note that the decision to

grant attorney's fees lies in the trial court's sound discretion

with the key being reasonableness under all of the circumstances.
 Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558

(1987); McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d

159, 162 (1985).

     In addition, we recognize that the trial court may be called

upon to reconsider whether to deviate from the child support

guidelines to accommodate the tuition costs for the parties'




                                 - 5 -
children's attendance at private schools.    While not addressing

this issue specifically on appeal, we suggest the following as

guidance to assist the trial court in resolving this matter.

     "Implicit in the [child support] statutory scheme is that

educational expenses are included in the presumptive amount of

child support as calculated under the Code."     Smith v. Smith,

18 Va. App. 427, 435, 444 S.E.2d 269, 275 (1994).     See Code

§ 20-108.1(B)(6).   "Code § 20-108.1(B) expressly provides that

when a trial court deviates from the presumptive amount

recommended by the guidelines, it must provide written findings

of fact that 'shall give a justification of why the order varies

from the guidelines.'"   Solomond v. Ball, 22 Va. App. 385, 391,

470 S.E.2d 157, 159-60 (1996) (citation omitted).

     In the final decree of divorce, the trial court deviated

from the child support guidelines to include the private school

expenses of the parties' children.     In justifying the increase in

support, the trial court opined that:

          [T]he presumptive amount of child support
           . . . would be unjust and inappropriate in
          this case based upon the standard of living
          of the family established during the
          marriage, the particular problems of one or
          more of the children, the indicated desires
          of both parties to continue with the private
          education of the children, and the earning
          capacity, obligations, needs and financial
          resources of both parties . . . .


     In Ball, the trial court failed to consider whether the

father was required to pay for his children's transfer from one



                               - 6 -
private school to a more "preferred," and, expensive, private

school.    In reversing that judgment, we noted that "the trial

court must consider, together with each parent's ability to pay,

whether a reason or need is shown to justify a change of schools

before increasing a noncustodial parent's support obligation."

Ball, 22 Va. App. at 392, 470 S.E.2d at 160.      In determining

whether requiring a parent to pay for a child to transfer to a

more expensive school is justified, relevant factors include:

the availability of satisfactory public schools, attendance at

private school prior to the separation and divorce, special

emotional or physical needs, religious training and family

tradition.    Id. at 391-92, 470 S.E.2d at 160.

     In this case, the trial court grounded its decision to

deviate upward from the child support guidelines upon the

parties' standard of living, earning capacity and the "particular

problems of one or more children."      See Code § 20-108.1(B)(6),

(10) and (11).   Prior to the separation, the parties' children

attended private school, with tuition costs estimated at $11,050

in 1993.   However, since the parties' separation, one child moved

to a different private school, and the eldest child went to

boarding school.   The evidence showed that tuition expenses

totaled $23,790.   The trial court modified the presumptive

monthly child support obligation from $2,487 to $3,787 per month,

which included health care coverage.

     In deviating from the presumptive child support guidelines,



                                - 7 -
the trial court should consider what specific circumstances

justified requiring Mr. Challoner to pay for significantly

increased tuition costs resulting from the transfer of the

parties' children to different, and more expensive, private

schools.

     For the foregoing reasons, we reverse and remand to the

trial court for further proceedings consistent with this opinion.

                                        Reversed and remanded.




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