                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia


JIMMY McCUE DAVIS
                                           MEMORANDUM OPINION * BY
v.      Record No. 1819-97-3             JUDGE ROSEMARIE ANNUNZIATA
                                                JUNE 2, 1998
BRENDA JOYCE SHELTON DAVIS


             FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                        Jonathan M. Apgar, Judge
             Stephen B. Hebblethwaite for appellant.

             James V. Doss, III, for appellee.



        Jimmy McCue Davis (husband) appeals the decree of the

circuit court, challenging the court's finding that Brenda Joyce

Shelton Davis (wife) was not at fault in the dissolution of the

marriage and the court's rulings as to equitable distribution and

spousal support.    Wife also challenges the court's rulings on

equitable distribution and spousal support. 1    Because we find

that the trial court abused its discretion in fashioning the

equitable distribution award, we affirm in part and reverse in

part.

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        1
      Husband argues that we should not consider the questions
presented by wife because wife did not file a Notice of Appeal.
Husband's argument is without merit. "[A]dditional questions
separate from those presented by the appellant, and any
additional relief sought separate from that requested by the
appellant, may be raised by the appellee in [her] brief."
D'Auria v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167
(1986).
        The parties were married on June 25, 1966, and separated on

March 7, 1996.    Wife worked outside the home during the initial

years of the marriage, but began to experience seizures in 1970,

and stayed at home to take care of the parties' children.      Wife

underwent surgery which cured her seizures in 1993.    Husband

worked for the same employer from 1970 through the parties'

separation, and accumulated $11,000 in savings bonds purchased

through his employer.    In 1995, husband withdrew more than

$21,000 from the parties' joint bank account, and gave $10,000 to

wife.
        Beginning in late 1995 or early 1996, wife routinely refused

to have sexual intercourse with husband, but the parties,

nonetheless, continued to have sexual intercourse every two or

three weeks until the week prior to the parties' separation.     On

March 3, 1996, husband overheard wife having a suggestive phone

conversation with another man.    Husband overheard a similar

conversation on March 6.    Husband confronted wife about the phone

conversations, and wife told husband that she had arranged to

have a man call the house in an effort to make husband jealous.

After an argument in which the police intervened, the parties

separated permanently.

        After a hearing, the trial court granted wife a divorce on

the basis of one year's separation, and refused to find

constructive desertion or adultery as alleged by husband.      The

trial court ordered an equal division of the parties' property.




                                   2
The trial court ordered the parties to sell the marital home and

some personal property, and to divide the proceeds.   The trial

court assigned a value to the parties' remaining assets,

allocated the personal property and intangible assets to the

parties, and ordered husband to pay wife an amount necessary to

divide the marital property equally.   The trial court also

ordered husband to pay wife spousal support in the amount of $175

per week.
     Under familiar principles, we view the evidence in the light

most favorable to the party prevailing on that issue below.

Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669

(1994) (citing Westmoreland Coal Co. v. Campbell, 7 Va. App. 217,

222-23, 372 S.E.2d 411, 415 (1988)).

                                 I.

                            Marital Fault

     Husband argues that the trial court erred in refusing to

grant him a divorce on the ground that wife was guilty of

constructive desertion.    The trial court declined to award

husband a divorce based on constructive desertion, and granted

wife a divorce based upon the parties' separation.    A court's

finding that no constructive desertion has occurred will not be

disturbed on appeal unless it is plainly wrong or without

evidence to support it.    Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d

16, 17 (1975) (citing White v. Perkins, 213 Va. 129, 134, 189

S.E.2d 315, 319 (1972)).



                                  3
        Husband first contends that wife unjustifiably refused

sexual intercourse, and thus was guilty of constructive

desertion.    "[T]he willful withdrawal from sexual intercourse,

when accompanied by willful breach and neglect of other marital

duties, is considered a general withdrawal from the duties of the

marital relationship, and, if without just cause or excuse,

constitutes desertion."     Petachenko v. Petachenko, 232 Va. 296,

299 n.*, 350 S.E.2d 600, 602 n.* (1986) (citing Albert v. Albert,

137 Va. 1, 3-4, 119 S.E. 61, 61 (1923)); see also Jamison v.
Jamison, 3 Va. App. 644, 648, 352 S.E.2d 719, 722 (1987).        "A

mere denial of sexual intercourse, where other marital duties are

performed, does not constitute desertion."     Petachenko, 232 Va.

at 299, 350 S.E.2d at 602.

        The evidence supports the refusal of the trial court to find

constructive desertion based on the withdrawal of sexual

intercourse.    Husband testified, "we had sex the week before we

split."    He also testified, "every two or three weeks we'd have

sex."    As nothing in the record suggests that husband had sex

with wife without her consent, this testimony establishes that

wife did not refuse to have sexual intercourse with husband.

        Husband also contends that wife was guilty of constructive

desertion because she attempted to convince husband that she was

having an affair.    A party may be guilty of cruelty amounting to

constructive desertion if he or she inflicts "mental anguish,

repeated and unrelenting neglect and humiliation . . . upon an



                                   4
unoffending spouse."   Hoback v. Hoback, 208 Va. 432, 436, 158

S.E.2d 113, 116 (1967) (citing Hoffecker v. Hoffecker, 200 Va.

119, 125-26, 104 S.E.2d 771, 776 (1958)).   "The misconduct of an

offending spouse which will justify the other in leaving 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, 208 Va. at 436, 158 S.E.2d

at 116).
     Wife admitted that she arranged for suggestive phone

conversations with a man in an attempt to make husband jealous.

The trial court found that the relationship was not intolerable,

noting that husband did everything he could to save the marriage,

and had sexual intercourse with wife within the week before the

separation.   The evidence supports the trial court's finding that

wife's conduct did not rise to the level of constructive

desertion.

                                II.

                             Valuation

     Husband contends that the trial court erred in valuing the

parties' 1995 Ford F350 pickup truck at a value of $20,000.    "The

trial court's valuation cannot be based on 'mere guesswork.'"
Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107

(1989) (quoting Taylor v. Taylor, 5 Va. App. 436, 443, 364 S.E.2d

244, 248 (1988)).   We will not disturb a trial court's finding of

the value of an asset, however, unless the finding is plainly



                                 5
wrong or unsupported by the evidence.    See Traylor v. Traylor, 19

Va. App. 761, 763-64, 454 S.E.2d 744, 746 (1995).

     At the time of trial, husband owned a 1995 four-wheel drive

F350 truck with a V-8 engine and an eight-foot bed.   Husband paid

$20,922 for the truck two years before the trial.   After

purchasing the truck, husband improved the truck by adding a

truck hitch, new rear bumper, and a bed liner.   Based on NADA

Blue Book values, wife argued that the truck was worth $22,125.

Husband introduced evidence that the truck had a value of

$13,125.
     The court assigned the truck a value of $20,000.      The NADA

Blue Book page introduced by wife showed a base value of $16,700

for a standard cab F350 pickup truck with an eight-foot bed.     The

Blue Book showed an additional $2,200 in value for four-wheel

drive, but did not list values for the additional improvements

husband made to the truck.   According to the Blue Book,

therefore, the truck was worth $18,900 plus the value of the bed

liner, rear bumper, and truck hitch.    We find that the trial

court's $20,000 valuation of the truck, which is between the

values argued by the parties, is supported by the evidence.      See

Zipf v. Zipf, 8 Va. App. 387, 395, 382 S.E.2d 263, 268 (1989).

                                III.

                     Equitable Distribution

     Husband contends that the trial court erred in fashioning an

equitable distribution award.   "Fashioning an equitable




                                 6
distribution award lies within the sound discretion of the trial

judge and that award will not be set aside unless it is plainly

wrong or without evidence to support it."   Srinivasan v.

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

     At trial, wife introduced an appraisal of the parties'

personal property.   Wife also introduced an exhibit entitled

"Personal Property Taken after Separation," listing marital

property she alleged was in the possession of husband, including

$11,000 in savings bonds, four withdrawals of funds in the

amounts of $10,000, $2,900, $3,031, and $5,506, and $20,649.

Wife also submitted to the court a list of personal property

which she wanted in the equitable distribution.   Husband

introduced a list of personal property that he was interested in

purchasing for one-half of its appraised value.
     In the Final Decree, the trial court wrote, "After careful

consideration of Section 20-107.3 of the Code of Virginia, as

amended[,] and all those factors listed thereunder, it is ORDERED

that the martial [sic] property be divided equally considering

the length of their marriage and the monetary and non-monetary

contributions contributed by the respective parties to the

marriage and the well being of the property."   To accomplish this

equal division of the property, the court assigned to husband a

tractor, a truck, and a van worth a total of $48,765.   The court

assigned to husband three savings accounts worth $7,320, U.S.

savings bonds worth $11,000, two withdrawals of $2,900 and $3,031



                                 7
made in May 1995 (for a total of $5,931 of May withdrawals), and

a withdrawal of $5,506 made in March 1995.   The court assigned to

wife a car worth $6,000, a withdrawal of $10,000 made by husband

in May 1995, and personal property that she requested worth

$4,949.   The trial court found wife's allegations "concerning the

value of 'missing' personal property without merit."

     This allocation of assets gave husband a value of $78,552,

wife a value of $20,949, and the unallocated personal property a

value of $8,413.   The court ordered the unallocated personal

property, as well as the marital home, to be sold and the

proceeds divided between the parties.   The court ordered husband

to pay wife $25,801.50 from the proceeds of the sale of the

marital home, which represents one-half of the difference between

husband's $78,522 in assets and wife's $20,949 in assets,

adjusted by $3,000 for outstanding marital debt.
                                A.

                         Personal Property

     Husband argues that the trial court erred in awarding wife

the items of personal property she requested, but not awarding

him the items he requested.   We hold that the trial court did not

abuse its discretion in awarding the items of personal property.

At trial, husband offered to buy certain items of personal

property at one-half the appraised price.    The trial court

awarded husband six items of personal property, including the

parties' tractor, plus two unrequested items, worth a total of




                                 8
$20,765.   Husband cites no authority for his claim that he was

entitled to the property he requested, rather than one-half of

the value of the property, and we have found none.   "Th[e]

division or transfer of jointly owned marital property and the

amount of any monetary award, subject to the enumerated statutory

factors, is within the sound discretion of the trial court."

Dietz v. Dietz, 17 Va. App. 203, 216, 436 S.E.2d 463, 471 (1993)

(citing Amburn v. Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847,

850 (1992)).   Under the facts of this case, we will not disturb

the trial court's exercise of its discretion.
     Wife argues that the trial court erred in refusing to award

her one-half of the value of the personal property that she

alleged husband had taken.   Wife testified that she made a list

of items she believed were missing from the parties' storage

building, and assessed the value of the items at their purchase

price.

     "It is well established that the trier of fact ascertains a

witness' credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony."   Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)).

Wife alleged that husband had taken an enormous amount of

hardware, including 100 pounds of washers, 200 screwdrivers, 30

torque wrenches, and 20 crow bars.   Wife acknowledged that in




                                 9
formulating her list of missing items, she considered all the

hardware that the parties had accumulated over the course of

thirty years.    Wife testified that valuing the hardware at the

purchase prices was appropriate because "they were in good shape

because he took care of his tools," but contradicted this

testimony by stating that husband "would leave his tools laying

out in the floor."

        Husband testified that he had hauled some trash away from

the parties' barn to the dump, but denied taking hardware or

equipment out of the barn.    Husband introduced evidence that a

number of the items on wife's list of missing property were

actually listed as part of the appraised property.    Husband also

disputed that the parties had ever owned many of the items shown

on wife's list.    As wife's counsel conceded at oral argument, the

trial court was entitled to accept the testimony of husband, and

reject the testimony of wife.     Street, 25 Va. App. at 387, 488

S.E.2d at 668 (citing Bridgeman, 3 Va. App. at 528, 351 S.E.2d at

601).    Considering the lack of support for wife's allegations of

missing hardware and husband's denial of removing any hardware,

we find that the evidence supports the trial court's finding that

wife's allegations of missing property are false.

                                  B.

                    Allocation of Funds Withdrawals

        Husband argues that the court erred in assigning him the

March 1995 withdrawal of $5,506, the May 1995 withdrawals of



                                  10
$5,931, and the $11,000 in savings bonds, in the absence of a

finding of waste.   Each of the monetary transfers at issue took

place at least nine months before the separation of the parties.

Over the course of husband's employment, he purchased a number

of U.S. Savings Bonds with a total value of $11,000.   Husband

told wife that he might use the bonds to finance the purchase of

his truck, which husband bought in April 1995.   Husband used the

$11,000 to pay for the parties' truck.
     Husband withdrew $5,506 from the parties' joint account in

March 1995.   Husband did not know exactly what he purchased with

the money, but he stated that he used it for the marital home.

Husband withdrew $2,900 from the parties' joint account on May

16, 1995, which he spent on building materials for the parties'

house, garage, and barn.   Husband withdrew $3,031 from the

parties' joint account on May 31, 1995, and placed the $3,031

into an account in his name, which he had at the time of the

separation.   Wife did not know of the existence or details of any

of these withdrawals.

     We find that the trial court's allocation of the $3,031 to

husband is supported by the evidence.    Husband acknowledged that

he had withdrawn the money from a marital account, and had the

money at the time of separation.

     Husband argues that the trial court employed a "waste"

analysis to apportion the value of the savings bonds and the

$2,900 and $5,506 withdrawals to husband.   There is no evidence




                                11
that these funds existed at the time of separation.   "Normally,

only property owned by the parties at the time of the last

separation is classified as marital property."   Booth v. Booth, 7

Va. App. 22, 28, 371 S.E.2d 569, 573 (1988) (citing, inter alia,

Code § 20-107.3(A)(2)(ii)).   If one party has dissipated assets

in anticipation of divorce, however, a trial court may hold "the

party who last had the funds . . . accountable for them."    Id.

Although the trial court did not explicitly find waste, we find

that the trial court implicitly used this reasoning in

apportioning the non-existent $11,000, $5,506, and $2,900 amounts

to husband.
     "'[W]aste' may generally be 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."

 Id. at 27, 371 S.E.2d at 572 (citing In re Marriage of Smith,

448 N.E.2d 545 (Ill. App. Ct. 1983)).   We hold that the trial

court abused its discretion in allocating the $11,000, $5,506,

and $2,900 amounts to husband because the legal requirements of

waste were not satisfied.   There is no evidence that husband

dissipated these assets in anticipation of divorce or separation.

More importantly, there is no evidence that the funds were spent

for a purpose unrelated to the marriage.

     The only evidence on the use of the funds was that they were

spent on the marital home or truck.   The only evidence on the



                                12
issue shows that husband spent a total of $8,406 in withdrawals

for improvements to the marital home, a marital purpose.   Because

the $8,406 was spent on improvements to the marital home, the

money was distributed equally in the trial court's equal division

of the proceeds of the sale of the house.   Similarly, the only

evidence on the issue shows that husband used the $11,000 derived

from the savings bonds to buy marital property, i.e., the truck.

This money was accounted for in the equitable distribution of

the truck to husband.   By allocating funds previously spent on

marital assets in the equitable distribution award, the trial

court effectively allocated these funds twice:   once as

withdrawals and savings bonds, and once as the marital home and

truck.
     Wife argues that the trial court erred in assigning her the

$10,000 withdrawal made by husband in April 1995.   We find that

the trial court's allocation of $10,000 to wife is supported by

the evidence.   The evidence shows that husband withdrew $10,000

from the parties' joint account and gave the money to wife,

although she denied receiving it.    Husband testified without

objection that wife had testified in prior proceedings that she

still possessed the $10,000 husband gave her.    Finally, wife

acknowledged that she had $10,000 in a savings account at the

time of separation.

     On the grounds stated above, we remand the issue of

equitable distribution to the trial court to redetermine the




                                13
equitable distribution of the property of the parties which was

in existence at the time of the separation.

                                 IV.

                           Spousal Support

     Because we remand for redetermination of the equitable

distribution award, we must also remand for redetermination of

spousal support.   See, e.g., Rowe v. Rowe, 24 Va. App. 123, 139,

480 S.E.2d 760, 767 (1997).   Because the spousal support issues

raised by the parties are unlikely to arise on remand, we decline

to address those issues.
                                              Affirmed in part,
                                              reversed in part.




                                 14
