                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia


DOROTHY M. MOSES
                                          MEMORANDUM OPINION * BY
v.        Record No. 1426-97-2           JUDGE NELSON T. OVERTON
                                              MARCH 3, 1998
WILLIAM J. MOSES


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Randall G. Johnson, Judge
          Joseph E. Blackburn (White, Blackburn &
          Conte, P.C., on brief), for appellant.

          Deanna D. Cook (Murray J. Janus; Bremner &
          Janus, on brief), for appellee.



     Dorothy M. Moses (wife) appeals a decree granting her a

divorce a vinculo matrimonii from William J. Moses (husband).

She contends the trial court erred by:     (1) ruling that an

interest in certain realty was not a gift, (2) ordering her to

reconvey that interest back to husband and (3) ordering

prospective division of the payments on a promissory note found

to be marital property.   Husband cross-appeals the trial court's

finding that the promissory note was marital property.     Because

the parties' arguments are without merit, we affirm.

     Two properties form the basis for this appeal:     4338

Chamberlayne Avenue (hereinafter "Chamberlayne") and 2908

Idlewood Avenue (hereinafter "Idlewood").     The parties agree that

disposition of these properties was governed by their pre-marital
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
agreement.   The agreement provides inter alia that property held

before the marriage and the proceeds of the sale or exchange of

such property is separate property not subject to equitable

distribution upon divorce.   A schedule of these properties was

attached to the agreement.   Chamberlayne is listed on the

schedule as husband's separate property.   Idlewood is not listed

because it was purchased during the marriage with proceeds of

separate property.
     The parties disposed of both Chamberlayne and Idlewood

during the marriage.   A life estate in Chamberlayne was sold with

a reversionary interest in husband and wife retained.   Idlewood

was sold in fee simple in exchange for a promissory note secured

by a Deed of Trust on the property.    The note was payable to both

parties jointly.

     The trial court originally found that, under the terms of

the agreement, the properties were separate because Chamberlayne

predated the marriage and Idlewood was purchased with funds

predating the marriage.   However, because husband asserted in his

Answer and Cross-Bill that wife "fraudulently coerced [husband]

into giving her substantial gifts [and] interests in real

estate," the trial court allowed wife to prove the properties

were gifts and husband to prove they were made under fraud or

coercion.

     At the subsequent hearing, wife produced husband's answer to

her interrogatory asking to what gifts he referred in his Answer



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and Cross-Bill.    In his answer, he stated that "one-half interest

in a note from 2908 Idlewood Avenue" was such a gift.    Because

husband failed to show the gift was obtained under fraud or

coercion, the trial court found the gift of Idlewood to be a

modification of the agreement.    Therefore, the trial court

awarded her fifty percent of the payments on the Idlewood note,

payable from the time of the divorce decree.    Wife could not,

however, show that Chamberlayne was a gift so it remained the

separate property of husband.
     Wife first contends that husband was bound by the statement

in his pleadings that he gave wife "interests in real estate."

She asserts that this statement is inconsistent with his later

claim that Chamberlayne was not a gift.    Therefore, under wife's

argument, he would be estopped from taking that position.      See

Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191 S.E.

672, 677 (1937).   Her definition of the word "inconsistent" is an

interesting one indeed.   Husband's statement in his pleading was

that he had made gifts of real estate.    Wife interprets this to

mean that all of his real estate was a gift.    Yet husband did not

plead that all of his real estate was a gift, only that some of

it was.   Therefore, his claim that Chamberlayne and Idlewood are

among the realties which were not gifted is not inconsistent, and

he was properly allowed to rebut wife's evidence on the matter.

     Wife next asserts that the trial court erred when it placed

the burden to prove a gift upon her.     She notes that the parties



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waived application of Code § 20-107.3 by the express terms of

their agreement and, therefore, the burden of proving a gift is

not on the donee, but the donor.   See Theismann v. Theismann, 22

Va. App. 557, 565 n.1, 471 S.E.2d 809, 813 n.1 (1996), aff'd on

reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).     However,

she ignores the language of the rest of the agreement.   The

agreement clearly states that "property identified on the

attached schedule is property acquired before by each respective

party prior to the marriage and shall be deemed separate

property."   Chamberlayne is so identified.   The agreement further

provides that "each party shall remain the exclusive owner of his

or her own separate property free from any claim or demand of the

other in the event of . . . divorce."   Therefore, under the

agreement, the property was presumed to be separate unless wife

could show that husband had given it to her as a gift.   Husband's

uncontradicted testimony was that he re-titled Chamberlayne as a

form of estate planning in case he should die while the parties

were still married.   Because there is sufficient evidence to

support the trial court's conclusion that Chamberlayne remained

the separate property of husband, we affirm that ruling.     See

Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625 (1993).

     Wife next contends that the trial court did not have

authority to order wife to deed her purported interest back to

husband.   We are faced with the rather novel problem presented

where property has been determined to be separate, but it is




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currently titled in the names of both parties.    Where law creates

a question, however, equity often answers it.

     Code § 20-107.3(C) states that "the court shall have no

authority to order the division or transfer of separate

property."   Therefore, the order of the trial court directing

wife to transfer her reversionary interest back to husband flows

not from the statute.   However, courts can order property

transferred in equity "where [property] has been fairly and

properly acquired, but it is contrary to the principles of equity

that it should be retained, at least for the acquirer's own

benefit."    See Woolley v. Woolley, 3 Va. App. 337, 342, 349

S.E.2d 442, 425 (1986) (citing Leonard v. Counts, 221 Va. 58,

589, 272 S.E.2d 190, 195 (1980)).   The issue before us now is

just such a case.   The parties, through their agreement, did not

intend for wife to retain legal title to the property.    Yet the

court could not have transferred the property directly through

its own order.   Therefore, when the trial court ordered wife to

"sign whatever documents are necessary to convey any reversionary

interest she may have of record" it did not do so under Code

§ 20-107.3, but through its equity power.    If in the future wife

fails to comply with the court's order, it may impose a

constructive trust, order a commissioner in chancery to sign the

deed or take whatever steps may be necessary in equity to secure

husband's interest in Chamberlayne.     See Gifford v. Dennis, 230

Va. 193, 335 S.E.2d 371 (1985).



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       Wife's final contention is that the trial court erred by

ordering husband to begin paying wife her share of the Idlewood

promissory note payments only from the date of the divorce decree

forward.    "Fashioning an . . . 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).    The trial court found the payments preceding

entry of the order had gone to expenses of the former marital

estate.    It, therefore, chose to discount them and make payments

prospective only.   Because we cannot say that the trial court

abused its discretion, we affirm its decision.
       Husband's only contention on appeal is that the trial court

erred when it found Idlewood to have been a gift.   The trial

court noted in its opinion that husband admitted in his answer to

interrogatories that he had given Idlewood to wife as a gift.      It

similarly found that husband had failed to prove that the gift

was procured by fraud or coercion due to the fact that husband

did not present any evidence whatsoever on that issue.   It,

therefore, found the gift valid and ordered husband to pay wife

her share of the proceeds of the note.    Because the court did not

abuse its discretion, we affirm.    Id.

       For the forgoing reasons, the decision of the trial court is

affirmed.
                                                         Affirmed.




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