                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Powell and Senior Judge Clements
Argued at Richmond, Virginia


MARY L. BIERNOT
                                                            MEMORANDUM OPINION ∗ BY
v.     Record No. 0331-08-1                               JUDGE JEAN HARRISON CLEMENTS
                                                                 FEBRUARY 24, 2009
JOSEPH L. BIERNOT


                 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                              Frederick H. Creekmore, Judge

                 Diane Pomeroy Griffin (Diane Pomeroy Griffin, PC, on brief), for
                 appellant.

                 Gregory S. Larsen (Roy, Larsen, Carnes & Romm, P.C., on brief),
                 for appellee.


       Mary L. Biernot (wife) appeals an order equitably distributing property from her

marriage to Joseph L. Biernot (husband). 1 On appeal, wife claims the trial court erred in

classifying a parcel of land they purchased during the marriage as hybrid property and in

assessing the value of husband’s separate interest in the land. Wife also requests an award of

attorney’s fees and costs incurred in this appeal. For the following reasons, we affirm the trial

court’s judgment and deny wife’s request for appellate attorney’s fees and costs.


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Husband filed a motion to dismiss claiming wife’s appeal is precluded because she
accepted the benefit of the trial court’s equitable distribution award by receiving payment for her
interest in the land. We disagree that wife’s appeal is precluded. “[W]here a decree is entered
for less than a party claims, the mere receiving payment of the sum so decreed [does not estop
the party] from appealing from the decree as to the sums not allowed.” Walter v. Whitacre, 113
Va. 150, 153, 73 S.E. 984, 986 (1912) (construing Southern Ry. Co. v. Glenn’s Adm’r, 98 Va.
309, 319, 36 S.E. 395, 398 (1900)). Accordingly, we deny husband’s motion to dismiss wife’s
appeal and also deny both parties’ requests for attorneys’ fees and costs incurred in connection
with the motion.
       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.

                                         I. BACKGROUND

       On appeal, we view the evidence in the “light most favorable” to the prevailing party in

the trial court and grant to that party the benefit of “all reasonable inferences fairly deducible

therefrom.” Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d

460, 463 (1991). So viewed, the evidence established that husband and wife were married on

December 31, 1971 and separated in August 2005. Both parties sought a divorce and equitable

distribution of their property.

       At a trial on these matters, husband testified that in 1974, he agreed to purchase a parcel

of real estate located at 348 Biernot Avenue from his father. The parcel had remained in

husband’s family for several decades. Because his father needed money, husband agreed to buy

the parcel from him for $15,000. Accordingly, husband’s parents executed a deed conveying

title of the parcel to him. From 1974 through 1976, husband and wife made ten payments with

marital funds to his parents for the parcel in the total amount of $3,240. Asked by his counsel

how he eventually acquired the rest of the parcel, husband responded as follows:

                      Well, I wanted to build a house and the bank had half the
               note on the property, so daddy gave me the property outright.

Husband further stated that he and wife made no further payments to his parents.

       Husband testified that in 1978, he conveyed title of the parcel to himself and wife for the

purpose of obtaining a construction loan. Having obtained the construction loan, the parties built

their marital residence on the parcel.



                                                 -2-
       According to Richard T. Esleeck, wife’s expert witness in the field of real estate

appraisal, the total value of the parcel was $295,000. Esleeck further testified that the value of

the land was $75,000, but he declined to assign a value for the improvements.

       According to a city assessment of the parcel submitted into evidence by husband, the land

value was $78,000 and the improvement value was $149,200. Using the city assessment figures,

the combined total assessed value of the parcel was $227,200. Thus, the land value was

approximately 34% of the total property value.

       After considering the evidence, the trial court found the parcel was partially gifted to

husband by his parents and classified the parcel as part separate and part marital property. The

trial court further concluded the parties agreed to purchase the parcel for $15,000 and they made

payments in the amount of $3,240 to husband’s parents with marital funds. In addition, the trial

court concluded as follows:

               Thereafter, [husband’s] parents forgave the remainder of the
               $15,000 debt, which totaled $11,760. Therefore, the amount of the
               gift to [husband] from his parents was $11,760, or approximately
               78% of the purchase price. Therefore, 78% of the value of the land
               is separate property . . . .

       The trial court relied on Esleeck’s figure of $295,000 for the total value of the parcel.

Because Esleeck “did not distinguish between the value of the land and the value of the

improvements,” the trial court adopted the city assessment determination that the land value was

34% of the total value of the parcel. Utilizing the figures from Esleeck and the city assessment,

the trial court calculated the land value was $100,300 (34% of $295,000). Accordingly, the trial

court concluded that husband’s separate interest in the land value was approximately $78,150

(78% of $100,300) and that the remaining value was marital.

       This appeal followed.




                                                -3-
                                              II. ANALYSIS

       Wife contends the trial court erred in classifying the land value of the parcel as hybrid

property. Specifically, she claims the evidence does not support the finding that husband’s

parents forgave the remainder of the purchase price as a gift to husband. 2 Instead, she contends

the parties purchased the parcel with marital funds and husband’s parents forgave no part of the

purchase price. Thus, she concludes, the parcel is not hybrid but is entirely marital property. We

disagree with wife.

       “Fashioning an equitable 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).

Furthermore, we will not disturb an award “[u]nless it appears from the record that the [trial

court] . . . has not considered or has misapplied one of the statutory mandates, or that the

evidence fails to support the findings of fact underlying [the] resolution of the conflict in the

equities.” Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). “Also, we ‘do[] not

retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of

the credibility of witnesses.’” Ranney v. Ranney, 45 Va. App. 17, 31, 608 S.E.2d 485, 492

(2005) (quoting Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997)).

       “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.” Id. at

31-32, 608 S.E.2d at 492.




       2
         Wife claims the trial court improperly considered husband’s testimony that his father
“gave [him] the property outright” because the testimony constituted a proffer presented by
husband following her sustained objection. We reject wife’s view of the record and conclude the
testimony was not presented as a proffer.

                                                -4-
        Pursuant to the provisions of Code § 20-107.3(A)(3), property may be characterized as

hybrid property when it comprises part marital and part separate interests. Holden v. Holden, 31

Va. App. 24, 27, 520 S.E.2d 842, 844 (1999); Ranney, 45 Va. App. at 32, 608 S.E.2d at 492.

More specifically, property is classified as hybrid when “marital property and separate property

are commingled by contributing one category of property to another . . . .” Code

§ 20-107.3(A)(3)(d). “[T]o the extent the contributed property is retraceable by a preponderance

of the evidence . . . , such contributed property shall retain its original classification.” Id. If the

contributed property is not retraceable, it “shall be deemed transmuted to marital property.”

Ranney, 45 Va. App. at 32, 608 S.E.2d at 492.

                        In order to trace the separate portion of hybrid property, a
                party must prove that the claimed separate portion is identifiably
                derived from a separate asset. This process involves two steps: a
                party must (1) establish the identity of a portion of hybrid property
                and (2) directly trace that portion to a separate asset.

Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141 (1997) (citing Code

§ 20-107.3(A)(3)(d)-(f)); see also von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156,

160 (1997) (“[T]he party claiming a separate interest in transmuted property bears the burden of

proving retraceability.”).

        Applying these principles to the circumstances of this case, we conclude the evidence

was sufficient to support the trial court’s finding that the land value of the parcel was hybrid

property. Husband testified that the parcel had remained in his family for several decades. In

1974, he purchased the parcel from his parents. Accordingly, his parents executed a deed

conveying title of the parcel to husband. Husband and wife made ten payments from 1974

through 1976 with marital funds to husband’s parents for the parcel in the total amount of

$3,240. Sometime later, husband and wife desired to build a residence on the parcel. At that

time, husband testified that his father “gave [him] the property outright.”

                                                  -5-
       From this evidence, the trial court could properly find that husband’s parents gave him a

gift by forbearing the remainder of the purchase price. In doing so, the trial court accepted

husband’s testimony as credible. It is well settled 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.” Anderson v. Anderson, 29 Va. App. 673, 686, 514

S.E.2d 369, 376 (1999). In addition, the trial court could implicitly conclude from the evidence

that the parties ceased making payments to husband’s parents in 1976. The trial court could

logically infer that the suspension of the payments coincided with and resulted from husband’s

father having forgiven the remainder of the purchase price as a gift to husband. Thus, the trial

court could find that husband proved the retraceability of his separate interest in the land value

by a preponderance of the evidence. Accordingly, the evidence supports the trial court’s

classification of the land value as hybrid property constituting 78% of husband’s separate interest

and the remaining value as marital interest.

       Wife further claims the trial court erred in determining the value of husband’s separate

interest in the land. To support that contention, wife claims the trial court accepted Esleeck’s

assessment of the parcel’s total value as $295,000, but incorrectly adopted the city assessment

determination that the land value constituted 34% of the total value of the parcel. We disagree

with wife’s claim that the trial court erred.

       “[T]he value of property is an issue of fact, not of law.” Howell v. Howell, 31 Va. App.

332, 340, 523 S.E.2d 514, 518 (2000). We will not disturb a trial court’s finding of the value of

an asset unless the finding is plainly wrong or unsupported by the evidence. Rowe v. Rowe, 24

Va. App. 123, 140, 480 S.E.2d 760, 768 (1997); Traylor v. Traylor, 19 Va. App. 761, 763-64,

454 S.E.2d 744, 746 (1995). In determining the value of marital property, “‘the finder of fact is

not required to accept as conclusive the opinion of an expert.’” Stratton v. Stratton, 16 Va. App.

                                                 -6-
878, 883, 433 S.E.2d 920, 923 (1993) (quoting Lassen v. Lassen, 8 Va. App. 502, 507, 383

S.E.2d 471, 474 (1989)).

       Here, the trial court relied upon Esleeck’s assessment of the total value of the parcel.

Because Esleeck did not assign a value to the improvements in order to distinguish the value of

the land, the trial court adopted the city assessment’s proportional division of the value of the

land in relation to the value of the entire parcel. Thus, the trial court utilized figures from two

different sources to calculate a dollar amount for the land value. Under these circumstances, we

cannot say the method the trial court employed to calculate the land value in determining

husband’s separate interest was plainly wrong or unsupported by the evidence.

                             III. ATTORNEY’S FEES AND COSTS

       Wife seeks an award of the attorney’s fees and costs she incurred on appeal.

                       “The rationale for the appellate court being the proper
               forum to determine the propriety of an award of attorney’s fees for
               efforts expended on appeal is clear. The appellate court has the
               opportunity to view the record in its entirety and determine
               whether the appeal is frivolous or whether other reasons exist for
               requiring additional payment.”

Rice v. Rice, 49 Va. App. 192, 204, 638 S.E.2d 702, 708 (2006) (quoting O’Loughlin v.

O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). Upon consideration of the

record before us, we decline to award wife appellate attorney’s fees and costs.

                                        IV. CONCLUSION

       For these reasons, we affirm the trial court’s judgment and deny wife’s request for

appellate attorney’s fees and costs.

                                                                                            Affirmed.




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