                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Clements
Argued at Alexandria, Virginia


THOMAS J. DOUGHERTY
                                                                MEMORANDUM OPINION * BY
v.      Record No. 0213-09-4                                  JUDGE JEAN HARRISON CLEMENTS
                                                                      OCTOBER 6, 2009
SHARON M. DOUGHERTY


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   David S. Schell, Judge

                  John K. Cottrell (Cottrell, Fletcher, Schinstock, Bartol & Cottrell,
                  P.C., on briefs), for appellant.

                  Sharon Dougherty, pro se.


        Thomas J. Dougherty (husband) appeals from an order modifying the final decree of

divorce. Husband argues that the trial court erred in (1) finding that husband’s interests in the

Springfield M-1 and Des Moines M-1 partnerships were marital property and not husband’s

separate property; (2) adopting the opinion of the wife Sharon M. Dougherty’s expert regarding the

value of husband’s partnership leases, when such value was speculative and founded upon

assumptions which were not supported by the evidence; and (3) not adopting the opinion of

husband’s expert regarding the value of husband’s partnership leases. Finding no error, we affirm

the trial court’s decision.

                                            BACKGROUND

        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


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.

       The parties married on February 1, 1991, and they separated in March 2006.

       In 1989, prior to the marriage, husband and another individual formed a partnership called

Libmot Communications Partnership (Libmot). Libmot’s purpose was to apply for broadband radio

service (BRS) licenses and lease them to wireless cable operators.

       During the marriage, husband created additional partnerships to acquire BRS licenses.

Husband and wife stipulated that two of those partnerships, Idaho Falls Wireless Partnership and

Springfield One Partnership, were marital property. Husband started two other partnerships,

Springfield M-1 Partnership and Des Moines M-1 Partnership, during the marriage. Husband

contends these partnerships are his separate property, while wife argues that they are marital

property.

       The trial court initially held that the Springfield M-1 and the Des Moines M-1 partnerships

were husband’s separate property because they were funded by Libmot, which was husband’s

separate property. Wife filed a motion to reconsider the classification of Libmot and the Springfield

M-1 and Des Moines M-1 partnerships. Wife argued that the Springfield M-1 and Des Moines M-1

partnerships were marital because they were established during the marriage. The trial court agreed

with wife and modified the final decree, holding that the Springfield M-1 and Des Moines M-1

partnerships were marital property.1 Husband timely noted his appeal.




       1
         The trial court did not reconsider its opinion regarding the classification of Libmot and
held that Libmot was husband’s separate property. The classification of Libmot is not at issue on
appeal.
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                                             ANALYSIS

                                        Issue 1 – Classification

       Husband argues that the trial court erred in classifying the Springfield M-1 and Des Moines

M-1 partnerships as marital property.

       On appeal, “decisions concerning equitable distribution rest within the sound discretion

of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the

evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing

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

       In late 1991, husband became a twenty percent owner in the Des Moines M-1 Partnership.

In 1992, husband became a twenty percent owner in the Springfield M-1 Partnership. Libmot paid

the FCC license fees on behalf of the Des Moines M-1 and Springfield M-1 partnerships. Aside

from husband’s testimony regarding the contributions made by Libmot, husband offered no further

evidence of his contributions toward the Des Moines M-1 and Springfield M-1 partnerships.

       Initially, the trial court found that the Springfield M-1 and Des Moines M-1 partnerships

were husband’s separate property. However, upon wife’s motion for reconsideration, the trial court

held that the partnerships were marital property. The trial court stated that “when the partnerships

were formed during the marriage, the instant they’re formed [sic] they’re marital property.”

       “‘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. The party claiming

that property should be classified as separate has the burden to produce satisfactory evidence to

rebut this presumption.’” Stratton v. Stratton, 16 Va. App. 878, 882, 433 S.E.2d 920, 922 (1993)

(quoting Stroop v. Stroop, 10 Va. App. 611, 614-15, 394 S.E.2d 861, 863 (1990)). Therefore,

the Springfield M-1 and Des Moines M-1 partnerships were presumed to be marital property,

and husband had the burden to prove they were his separate property.

                                                 -3-
       Separate property is “all property, real and personal, acquired by either party before the

marriage . . . [and] all property acquired during the marriage in exchange for or from the

proceeds of sale of separate property, provided that such property acquired during the marriage is

maintained as separate property.” Code § 20-107.3(A)(1). Husband argues that the Springfield

M-1 and Des Moines M-1 partnerships are his separate property because funds from Libmot, his

separate property, were used in exchange for his acquisition of the partnerships.

       Wife contends husband did not present any evidence that the partnerships were acquired

in exchange for or from proceeds of the sale of Libmot. She argues that Libmot’s payment of the

filing fees for the licenses acquired by the partnerships is not the equivalent of Libmot being

exchanged for or sold to pay for husband’s interest in the partnerships.

       An exchange is defined as “the act of transferring interests, each in consideration of the

other,” and a sale is defined as “the transfer of property or title for a price.” Black’s Law

Dictionary 645, 1454 (9th ed. 2009). We conclude there was no “exchange” or “sale” between

Libmot and the Springfield M-1 and Des Moines M-1 partnerships.

       Libmot is a partnership, which is a separate legal entity from husband. When Libmot

paid the FCC license fees on behalf of the Springfield M-1 and Des Moines M-1 partnerships,

Libmot did not receive anything in return. The license fees were owned not by Libmot, of which

husband was one of two partners, but by the Springfield M-1 and Des Moines M-1 partnerships,

of which husband was one of five partners. Both before and after Libmot paid the FCC license

fees, husband’s interest in Libmot remained at fifty percent, and his interest in the Springfield

M-1 and Des Moines M-1 partnerships remained at twenty percent.

       Husband argues that Libmot’s purchase of the FCC license fees is similar to the stock

pledge made by the husband in Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763 (2000). In

Gilman, the husband pledged his separate shares of stock as security for a loan for a down

                                                -4-
payment and argued that his interest in the property was separate because the stock pledge was in

exchange for the loan proceeds. Id. at 117-18, 526 S.E.2d at 769-70. The wife argued that since

the bank never obtained title to the shares of stock, there was no exchange and the property was

marital. Id. at 117, 526 S.E.2d at 769. This Court held that a stock pledge was an exchange as

contemplated by Code § 20-107.3(A)(1), and ruled, “Where no marital property, effort, or credit

is involved, a stock pledge is simply a method to use separate property to acquire additional

property. We see no equitable rationale for classifying property acquired in this manner as

marital property.” Id. at 118-19, 526 S.E.2d at 770. However, unlike Gilman, there was no

exchange in this case. Husband did not exchange or sell his interest in Libmot to acquire an

interest in the Springfield M-1 and Des Moines M-1 partnerships.

       Therefore, husband did not rebut the presumption that the Springfield M-1 and Des

Moines M-1 partnerships were marital property, and the trial court did not err in classifying them

as marital property.

                                      Issues 2 and 3 – Valuation

       Husband argues that the trial court erred in accepting the opinion of wife’s expert, as

opposed to his expert’s opinion, on the valuation of the Springfield M-1 and Des Moines M-1

partnerships. Husband contends that wife’s expert relied on speculative assumptions and

assumed facts that were not in evidence.

       A court may “choose among conflicting assessments of value as long as its finding is

supported by the evidence.” McDavid, 19 Va. App. at 413, 451 S.E.2d at 718.

       Here, wife’s expert explained in detail the methodology he used and how he valued the

Springfield M-1 and Des Moines M-1 partnerships. He also testified as to why he disagreed with

husband’s expert’s opinion and assumptions. The trial court adopted the opinion of the wife’s

expert, and the evidence is sufficient to support the trial court’s finding.

                                                 -5-
                                         Attorney’s fees

       Husband asks this Court to award him attorney’s fees and costs incurred on appeal. See

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

of the record before us, we decline to award husband his attorney’s fees and costs on appeal.

                                        CONCLUSION

       For the foregoing reasons, we affirm the trial court’s judgment.

                                                                                        Affirmed.




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