                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia


JOE GAINES FOREMAN
                                            MEMORANDUM OPINION * BY
v.   Record No. 2092-98-4               JUDGE RUDOLPH BUMGARDNER, III
                                                 JULY 27, 1999
KRISTIE K. KETCHUM


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       J. Howe Brown, Judge

          Beth A. Bittel (Law Offices of Beth A.
          Bittel, on briefs), for appellant.

          Kristie K. Ketchum, pro se.


     Joe Gaines Foreman and Kristie K. Ketchum were divorced by

a final decree entered August 14, 1998.     The husband appeals the

trial court’s (1) equitable distribution of the marital

residence; (2) classification of the Fidelity Investments IRA

account as marital property; (3) finding that he was at fault;

(4) finding that denial of spousal support would constitute a

manifest injustice; (5) failure to impute income to the wife;

and (6) denial of husband’s motion to reopen.       We affirm the

trial court on all issues except its classification of the IRA

account, which we reverse and remand for reconsideration in

light of this decision.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     We view the evidence in the light most favorable to the

wife, the prevailing party below.       See Cook v. Cook, 18 Va. App.

726, 731, 446 S.E.2d 894, 896 (1994).      The parties married in

1986 when the wife was 28 and the husband was 46; they separated

in March 1997.   This was the husband’s third marriage, the

wife’s first.    The trial court awarded the wife sole physical

and legal custody of the two children.      The parties did not

appeal the custody issues.

     The husband was anxious to start a family, but the wife

wanted to continue pursuing her career goals, which included

getting a Ph.D. and maintaining her financial independence.       The

wife, who had a master’s degree in Education of the Deaf, worked

full-time at Children's Hospital and part-time at Gallaudet

University.   She stayed home for six months after their

children's birth, and subsequently earned $26,000 annually

working part-time at Children's Hospital.      By 1996, she had

completed her Ph.D. course work.    In October 1997, the wife

commenced employment with the Fairfax County schools.      The

husband, who had a Ph.D. in electrical engineering from Johns

Hopkins University, earned $86,000 per year at the Naval

Research Laboratory.

     The parties first entered marital counseling in 1988.        Dr.

Harvey Oaklander saw them as a couple for three years; he also

saw the husband individually through 1991 and the wife until



                                - 2 -
1994.    The parties saw two other marital counselors after 1991

and a financial advisor in 1996.

        The husband commenced psychoanalysis in 1992 with Dr.

Houston MacIntosh at an annual cost of approximately $18,000

between 1993 and 1996.    The wife testified that his therapy was

a source of great discord in the marriage.     She testified the

expense had a negative impact on the parties' lifestyle

affecting the food and clothes she purchased and the vacations

they took.    It also affected the marriage:   the husband's

relationship with his therapist was the most important one in

his life, what they addressed was none of the wife's business,

and for four years he attended sessions 3-4 times per week.

        In March 1997, the wife left the marital residence, took

the children, and filed for divorce on the grounds of

constructive desertion and mental cruelty.     The husband denied

all allegations of fault and cross-complained alleging adultery.

The wife then amended her complaint to charge adultery.

        The trial court referred the issues of fault to a

commissioner in chancery.    Both parties excepted to the

commissioner’s May 19, 1998 report.      The trial judge conducted

the equitable distribution hearing in June, ruled on the

objections to the commissioner’s report, and entered the final

decree on August 14, 1998.    The court denied the husband’s

motion to re-open certain testimony from the equitable

distribution trial.

                                 - 3 -
     The court granted the husband a divorce based on the wife’s

adultery.   However, it noted that the wife's adultery was

unrelated to the breakdown of the marriage.    The trial court

found that the husband's focus of time and energy on his

psychoanalysis was a significant factor in the breakdown of the

marriage.

     In challenging the equitable distribution award, the

husband argues the trial court erred in finding a gift of half

the total equity in the marital residence and in dividing the

residence equally.   Equitable distribution awards will be upheld

"unless it appears from the record that the trial judge has

abused his discretion, that he has not considered or has

misapplied one of the statutory mandates, or that the evidence

fails to support the findings of fact underlying his resolution

of the conflict in equities . . . ."     Blank v. Blank, 10 Va.

App. 1, 9, 389 S.E.2d 723, 727 (1990).

     The wife must prove the husband's donative intent as well

as the nature and extent of his intent.     See Lightburn v.

Lightburn, 22 Va. App. 612, 617, 472 S.E.2d 281, 283 (1996)

(citations omitted).   “We look to what the words express, not

what the grantor may have intended.”     Davis v. Henning, 250 Va.

271, 275, 462 S.E.2d 106, 108 (1995) (citation omitted).       See

Capozzella v. Capozzella, 213 Va. 820, 824, 196 S.E.2d 67, 70

(1973) (a deed intended for one purpose is intended "for all

purposes apparent on its face”); Rowe v. Rowe, 24 Va. App. 123,

                               - 4 -
137-38, 480 S.E.2d 760, 766-67 (1997).   The court may consider

the circumstances in existence at the time a deed is executed,

see Hills v. Brooks, 253 Va. 168, 177, 482 S.E.2d 816, 822

(1997); Davis, 250 Va. at 275, 462 S.E.2d at 108, and any

ambiguity is construed against the grantor.   See Phipps v.

Leftwich, 216 Va. 706, 710, 222 S.E.2d 536, 539 (1976).

     The husband purchased the marital residence before the

marriage for $184,000.   He invested between $70,000 and $75,000

in separate funds in the house before and during the marriage.

The wife contributed to the upkeep and maintenance of the house.

On May 13, 1992, the husband recorded a deed of gift

transferring the house jointly as tenants by the entirety with

right of survivorship.

     The wife claims that the parties agreed to title the house

jointly and own it equally if she deferred her career in order

to raise children.   Dr. Oaklander characterized the agreement as

a "quid pro quo"; she would defer her "career indefinitely

because she wanted to stay at home . . . in return for the total

equality financially."   Ultimately they executed the deed before

the wife’s second pregnancy.

     The husband does not dispute that he agreed to put the

wife's name on the house in case he died; he also wanted her to

earn equity in it.   He argues, however, that he intended her to

get one-half of all future equity earned during the marriage,

not one-half of its full equity.

                               - 5 -
     Code § 20-107.3(A)(2)(i) provides that marital property is

"all property titled in the names of both parties whether as

joint tenants, tenants by the entirety or otherwise, except as

provided by subdivision A3."    Subdivision (A)(3)(f) provides

"[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."    (Emphasis added).    The court found the

husband's testimony that he did not understand the deed of gift

and only wanted the wife to get part of the house

"disingenuous."     See Langman v. Alumni Association of the

University of Virginia, 247 Va. 491, 442 S.E.2d 669 (1994);

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987) (en banc) (fact finder is judge of witness' credibility).

Notwithstanding his separate contributions, the trial court

found that the husband intended to make an unconditional gift of

one-half of the full equity in the house to the wife because of

the deed.   The evidence supports this finding.

     In making an equitable distribution award of marital

property, the court must apply the Code § 20-107.3(E) factors.

See Rowe, 24 Va. App. at 138, 480 S.E.2d at 767.      It is not,

however, "required to quantify or elaborate exactly what weight

or consideration it has given to each of the statutory factors."

                                 - 6 -
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986).

       Highlighting some relevant factors, the trial court found

that the wife deferred her career to raise children, delayed

retirement, and helped to maintain the home.   It also found that

the husband made a significant non-monetary negative

contribution to the marriage by devoting his time and energy to

his therapy and that he intended to give the wife half the

house.

       Clearly, the trial court considered the parties'

contributions to the marriage and the marital residence, the

cause of the breakdown of the marriage, and other appropriate

factors.   Because its decision is based on the evidence, we find

no error in its failure to cite to each factor.     In light of all

the evidence, we uphold the trial court's equal division of the

marital residence.    See Blank, 10 Va. App. at 9, 389 S.E.2d at

727.

       We next consider the classification of the Fidelity

Investments IRA.   The trial court ruled that the evidence was

insufficient to prove that the IRA was husband's separate

property and classified it as marital property. 1   The husband




       1
       The trial court ruled that "the evidence was that
[husband] said, he was the only person that contributed to it,
but the evidence was insufficient to show that it was separate
property. I think it was marital property."

                                - 7 -
argues the IRA was presumed separate property pursuant to Code

§ 20-107.3(A)(1).   We agree.

     "[T]he character of property at the date of acquisition

governs its classification pursuant to Code § 20-107.3."

Stratton v. Stratton, 16 Va. App. 878, 881, 433 S.E.2d 920, 922

(1993).   "Code § 20-107.3 provides that property . . . acquired

before marriage is presumed to be separate."    Barnes v. Barnes,

16 Va. App. 98, 104, 428 S.E.2d 294, 299 (1993).

     The husband argues that he acquired the IRA before the

marriage and it earned only passive income during the marriage.

His disclosure form lists the purchase date as 1982; the parties

married in 1986.    The wife presented no evidence to show that

the IRA was marital or that it was acquired during the marriage.

     There was uncontradicted evidence that the husband acquired

the IRA before the marriage and invested no money in it during

the marriage.   By statute, the IRA is presumed separate

property.   The trial court erred in classifying it as marital

property and including it in the marital estate.   We reverse

this decision and remand the case for reconsideration of the

equitable distribution award in light of this ruling.

     Next we consider whether the trial court erred in awarding

the wife spousal support despite her adulterous conduct.

Spousal support may be awarded to a party who has committed

adultery "when the trial court finds by clear and convincing

evidence that denial of support would constitute a 'manifest

                                - 8 -
injustice, based upon the relative degrees of fault during the

marriage and the relative economic circumstances of the

parties.'"    Rahbaran v. Rahbaran, 26 Va. App. 195, 211-12, 494

S.E.2d 135, 141 (1997) (citing Code § 20-107.1; Barnes v.

Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294, 298 (1993)).

     The husband, denying all allegations of fault for the

breakdown in the marriage, challenges the propriety of the

award.   Fault "encompasses all behavior that affected the

marital relationship, including any acts or conditions which

contributed to the marriage's failure, success, or well-being."

Barnes, 16 Va. App. at 102, 428 S.E.2d at 298.    See also

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323,

326 (1995).

     The court, considering both parties' conduct, found that

the wife's adultery did not cause the dissolution of the

marriage because their relationship had deteriorated to the

point of just living together prior to 1996.   The evidence

supports this finding.   The parties were in counseling

throughout most of the marriage; the husband thought the

marriage was failing as early as 1992 when he entered therapy;

after 1992, the parties ceased behaving as a couple, doing

things as a family, and having sexual relations; they slept in

separate bedrooms beginning in 1995; and took no family

vacations in 1993, 1994, and 1996.



                                - 9 -
        The trial court further found that the husband's obsession

with his psychoanalysis was a significant factor in the

breakdown of the marriage.    Aside from his own testimony, the

husband presented no evidence that he needed the psychoanalysis.

In fact, Dr. Oaklander testified that in his medical opinion the

husband did not need psychoanalysis.      This opinion is supported

by evidence that the husband abruptly terminated his sessions in

1997.

        The trial court must also weigh and consider the parties'

comparative economic positions.    It expressly noted that the

husband had greater earning capacity and income than the wife.

See Barnes, 16 Va. App. at 103, 428 S.E.2d at 298.       Even if she

worked full-time, her salary would only be one-half of his, and

she would have to pay for day care.      We find that the court

considered the parties' respective degrees of fault and their

relative economic situations in finding that to deny the wife

support because of her adultery would be manifestly unjust in

this case.    The evidence supports the support award.

        We next consider whether the trial court erred in failing

to impute income to the wife.    The husband contends the wife is

voluntarily underemployed and that the court erred in failing to

determine her earning capacity.    We disagree.

        In setting or modifying spousal support, a court may impute

income to a party voluntarily underemployed.      See Stubblebine v.

Stubblebine, 22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en

                                - 10 -
banc); Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875,

876 (1994).   The court's decision will not be disturbed on

appeal unless plainly wrong or unsupported by the evidence.      See

Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887

(1998).   Whether a person is voluntarily underemployed is a

factual determination.   In evaluating a request to impute

income, the trial court must "consider [the parties'] earning

capacity, financial resources, education and training, ability

to secure such education and training, and other factors

relevant to the equities of the [parties]."      Niemiec v. Dept. of

Soc. Servs., Div. of Child Support Enforcement, 27 Va. App. 446,

451, 499 S.E.2d 576, 579 (1998).      Furthermore, the husband has

the burden of proving that the wife was voluntarily foregoing

more gainful employment.    See id.

     The evidence supports the trial court's finding that the

wife was not voluntarily underemployed and that the parties

agreed that she would not work full-time while the children were

young.    The wife provided both monetary and non-monetary

contributions to the family.   She was an equal marital partner;

she worked outside the home before and after the children were

born, maintained the household, and cared for the children.

When she perceived her job was in jeopardy, she secured

employment as a “cued speech” educator earning $21,155 annually

on a ten-month contract.



                               - 11 -
     The husband also failed to establish that the wife

voluntarily rejected full-time employment.   His expert testified

that there were three full-time positions available in Fairfax

County where the wife could earn approximately $30,000.   The

wife challenged his expert on whether the vacancies were in

"cued speech," her specialized field, how many applications each

position had, and what the competition was for each.   Under

these circumstances, the court properly held that the wife had

not unreasonably refused employment for which she was qualified.

See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d

675, 679 (1990).   We affirm the finding that the wife is not

voluntarily underemployed and its decision not to impute income

to her.

     Finally, we affirm the denial of the husband's motion to

reopen.   He claims that the wife's justification for leaving the

Children's Hospital job was inconsistent with prior statements,

caught him by surprise, and prevented him from presenting

rebuttal evidence.   In support of his motion, the husband

proffered testimony from the wife's supervisor that (1) she was

not fired, (2) she voluntarily resigned, and (3) he did not tell

her that her position would be eliminated.

     It is within the trial court's discretion to grant or deny

a rehearing.   See Hughes v. Gentry, 18 Va. App. 318, 326, 443

S.E.2d 448, 453 (1994) (citation omitted).   "[A] petitioner must

show either an 'error on the face of the record, or . . . some

                              - 12 -
legal excuse for his failure to present his full defense at or

before the time of entry of the decree.'"   Holmes v. Holmes, 7

Va. App. 472, 480, 375 S.E.2d 387, 392 (1988) (quoting Downing

v. Huston, Darbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37

(1927)).

     The wife testified that she left her job because her

supervisor had been fired, she felt her job was in jeopardy,

that it was becoming increasingly difficult to bill insurance

companies for educator services, and that she was advised that

it was "probably time to look around."

     Despite the husband's claim that this testimony surprised

him, he did not cross-examine the wife about her alleged prior

inconsistent statements.   See Code § 8.01-404.   Nor did he

establish that the wife's trial testimony was in fact

inconsistent with her prior statements.   Therefore, there is no

justification for the husband's "surprise" or lack of

preparation.   The husband also failed to show that his "new"

evidence was "not known or accessible" prior to trial, Hughes,

18 Va. App. at 326, 443 S.E.2d at 453, or that it is likely to

produce a different result.   We affirm the denial of this

motion.

     For the foregoing reasons, we affirm all issues raised

herein except the classification of the Fidelity Investments




                              - 13 -
IRA.   We reverse and remand that issue for reconsideration in

accordance with this opinion.

                                     Affirmed in part,
                                     reversed and remanded.




                                - 14 -
