                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia


JOHN DOUGLAS CLARK
                                     MEMORANDUM OPINION * BY
v.   Record No. 1531-97-2           JUDGE JAMES W. BENTON, JR.
                                       SEPTEMBER 15, 1998
SUSAN LITTLE BUNDY CLARK


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge
           J. Barrett Jones (Jones & Green, on briefs),
           for appellant.

           Ronald R. Tweel (Elizabeth P. Coughter;
           Michie, Hamlett, Lowry, Rasmussen & Tweel, on
           brief), for appellee.



      In this appeal from a divorce decree, the parties challenge

numerous rulings of the trial judge concerning equitable

distribution, spousal support, and attorney's fees.   For the

reasons that follow, we affirm the trial judge's rulings in part,

reverse in part, and remand for reconsideration.

                      BIFURCATION OF PROCEEDINGS

      The husband contends the trial judge erred in failing to

bifurcate the divorce proceedings from the equitable distribution

proceedings or, in the alternative, enter the divorce nunc pro
tunc to 1996.

      The record establishes that on August 22, 1996, the husband

moved the trial judge to bifurcate the proceedings and grant a

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
divorce a vinculo matrimonii.     At the December 5 hearing on this

motion, the trial judge requested that the husband "satisfy the

Court that the granting of a divorce [without simultaneous

adjudication of equitable distribution] would not have any effect

on the rights of [the wife] in and to a marital share of his

pension plans."    In response, the husband proffered a proposed

"bifurcation agreement" by which the trial judge would retain

jurisdiction over the remaining matters in the case in the event

one of the parties should die prior to a final adjudication.
        The husband wanted the divorce entered in 1996 to enable him

to use the "single" filing status on his 1997 income tax return.

He alleged that if the divorce decree was not entered until

1997, he would be forced to file as "married filing separately"

and would pay approximately $6,165 more in taxes.    The judge

declined to bifurcate the proceedings or grant the divorce in

1996.

        Code § 20-107.3(A) authorizes a trial judge to enter a

divorce while retaining jurisdiction to adjudicate equitable

distribution. In relevant part, it provides as follows:
          Upon decreeing the dissolution of a marriage,
          and also upon decreeing a divorce from the
          bond of matrimony, . . . [t]he court, on the
          motion of either party, may retain
          jurisdiction in the final decree of divorce
          to adjudicate the remedy provided by this
          section when the court determines that such
          action is clearly necessary, and all decrees
          heretofore entered retaining such
          jurisdiction are validated.


Code § 20-107.3(A) (emphasis added).     Nothing in the statute


                                 - 2 -
requires a trial judge to grant every motion for bifurcation.

Indeed, this Court recently held that the statute requires "that

the trial [judge] must make a specific finding of clear necessity

for granting the divorce while retaining jurisdiction to decide

equitable distribution issues."    Christensen v. Christensen, 26

Va. App. 651, 655, 496 S.E.2d 132, 134 (1998).

     The husband was unable to provide the trial judge assurance

that the wife's interest in the marital share of the husband's

pension would not be adversely affected if the trial judge

granted the divorce and the husband died prior to equitable

distribution.   In view of the trial judge's finding that the

husband's proposed agreement to address the issue did not satisfy

this requirement, we cannot say that the trial judge erred in

failing to find that the potential tax savings rendered

bifurcation "clearly necessary."   Thus, we hold that the trial

judge did not abuse his discretion in refusing to bifurcate the

proceedings.
     "An order entered nunc pro tunc cannot create a fiction that
an act not yet performed has already occurred.   Rather, the power

of the trial court to amend by nunc pro tunc order is restricted

to placing upon the record evidence of judicial action which has

already been taken, but was earlier omitted or misstated in the

record."   Holley v. City of Newport News, 6 Va. App. 567, 568,

370 S.E.2d 320, 321 (1988) (citation omitted).   By denying the

motion to bifurcate the proceedings, the trial judge denied the



                               - 3 -
request to grant the divorce in 1996.   Accordingly, the trial

judge did not err in refusing to enter the divorce decree nunc

pro tunc to be effective in 1996.




                              - 4 -
                  INCORPORATION OF MARITAL AGREEMENT

       The trial judge denied the husband's request that the trial

judge incorporate the parties' marital agreement of October 29,

1992 into the final divorce decree.      The husband argues that

because the parties separated in July 1994, they never

"reconciled."    Thus, he contends the agreement remained valid and

enforceable.    Furthermore, he contends that even if the parties

did reconcile, the provisions of the agreement evince the

parties' intent that the agreement would not be abrogated by

reconciliation.
       A marital agreement is not abrogated by a later

reconciliation of the parties where the agreement provides

otherwise.     See Jennings v. Jennings, 12 Va. App. 1187, 1198, 409

S.E.2d 8, 15 (1991); Smith v. Smith, 19 Va. App. 155, 156, 449

S.E.2d 506, 506 (1994).    The agreements in Jennings and Smith

contained provisions stating that "[i]n the event of a

reconciliation and resumption of the marital relationship between

the parties," the agreement "shall continue in full force and

effect without abatement of any terms."      Jennings, 12 Va. App. at

1198, 409 S.E.2d at 15; Smith, 19 Va. App. at 156, 449 S.E.2d at

506.   By statute, such agreements "may be amended or revoked only

by a written agreement signed by the parties."     Code § 20-153.

       The issue in this case is whether the terms of the agreement

provide that the agreement not be abrogated upon reconciliation.

Section (H) of the agreement provides as follows:
            In the event that the reconciliation



                                 - 5 -
          efforts prove successful, the parties
          acknowledge that, at some point, the Court
          must by law consider the marriage to be
          resumed and the separation ended, which may
          affect their mutual rights and claims, as
          well as the date determined by the Court to
          be appropriate for evaluating marital
          property.


     The evidence in the record proves that the wife filed for

divorce in July 1992.    The parties then agreed to attempt a

reconciliation.    They entered into this marital agreement in

October 1992.    The husband and wife resumed cohabitation for

almost two years until they finally separated in July 1994.
     The trial judge "[found] that the parties reconciled and the

terms of the agreement do not call for its enforcement in light

of a reconciliation.    Instead, the agreement leaves to the Court

a fair adjudication of matters pertaining to equitable

distribution."    The evidence supports the trial judge's finding

that the parties reconciled.    The trial judge also correctly

interpreted the agreement because the terms of the agreement did

not require enforcement if a reconciliation occurred.    Therefore,

we affirm the trial judge's ruling that when the parties

reconciled, the agreement was not enforceable.

                        EQUITABLE DISTRIBUTION

     "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).



                                 - 6 -
             In reviewing an equitable distribution
          award on appeal, we have recognized that the
          trial court's job is a difficult one, and we
          rely heavily on the discretion of the trial
          judge in weighing the many considerations and
          circumstances that are presented in each
          case. Unless it appears from the record that
          the [judge] has abused his discretion or has
          failed to consider or has misapplied one of
          the statutory factors, his determination will
          not be reversed on appeal.


Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990)

(citations omitted).
                 Defined Benefit Retirement Plan

     Asserting that the wife presented no evidence regarding his

defined benefit retirement plan, the husband contends the trial

judge's refusal to grant the husband's motion to strike the

evidence on this issue was error.    We disagree.

     Code § 20-107.3(A) requires a trial judge to determine the

ownership and value of all real and personal property of the

parties before making a monetary award.    "The burden is always on

the parties to present sufficient evidence to provide the basis

on which a proper determination can be made."       Hodges v. Hodges,

2 Va. App. 508, 517, 347 S.E.2d 134, 139 (1986).      However, a

trial judge "may not arbitrarily refuse to classify or evaluate

marital or separate property where sufficient evidence to do so

is in the record."     Bowers v. Bowers, 4 Va. App. 610, 618, 359

S.E.2d 546, 550 (1987).    Furthermore, the trial judge "may not

refuse or fail to give parties a reasonable opportunity to

develop and present evidence of value."     Id.




                                 - 7 -
     The trial judge overruled the husband's motion to strike the

evidence and noted that the plan was an asset that had been

disclosed pre-trial.    At trial, the wife presented evidence of

the length of the marriage.   The evidence disclosed the husband's

length of employment.   These two factors were sufficient to value

the wife's share in the pension plan.     The husband, on

cross-examination, testified to the formula to which these

figures would be applied.   The trial judge was aware of the plan

and used this formula as the basis for his award.     The marital

share of the fund was easily identifiable from evidence before

the judge concerning the date of the marriage and the length of

service of the husband in the plan.      Thus, we cannot say that the

trial judge abused his discretion in overruling the husband's

motion to strike the evidence.

                 The Tangible Personal Property

     The husband contends the trial judge erred in classifying as

marital property certain tangible personal property purchased by

the husband with funds from a money market account, which

contained his separate funds.    The husband argues this property

should have been classified as separate property because it was

purchased with separate funds.    He also argues that because he

kept a ledger of all purchases he made from the separate funds,

these funds and any purchases from these funds were maintained as

separate property.

     At the evidentiary hearing, the husband testified that upon



                                 - 8 -
his marriage he deposited $80,000 of his separate inheritance

into a money market account.   The husband also deposited marital

funds into that account.   The husband testified that he kept

detailed computer records of the purchases he made from this

account in order to "trace" the source of the funds used for each

purchase.   The evidence proved, however, that the husband did not

start to create this computer ledger until after the parties

separated in 1992.   Therefore, from October 1989, the date of the

marriage, until July 1992, there was no "tracing" of the

husband's spending from this account.   Furthermore, the husband

did not contemporaneously track his spending.   He testified that

he usually waited at least until the end of the month to record

the transactions.    He also arbitrarily decided "at the time [he]

wrote the check whether it was [his] intent that it be separate

or that it be marital."
     "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."    Stroop

v. Stroop, 10 Va. App. 611, 615-16, 394 S.E.2d 861, 863 (1990).

As pertinent to this issue, the statute also provides that

"[w]hen marital property and separate property are commingled

into newly acquired property resulting in the loss of identity of

the contributing properties, the commingled property shall be




                                - 9 -
deemed transmuted to marital property."    Code

§ 20-107.3(A)(3)(e).    The contributed property only retains its

original classification "to the extent the contributed property

is retraceable by a preponderance of the evidence and was not a

gift."   Id.

     The trial judge found that the property was purchased with

commingled funds and that the property had been enjoyed by both

parties during the marriage.    The evidence proved the husband did

not track any of his expenditures for marital property.

Furthermore, the husband's evidence failed to prove that funds

withdrawn from the account were designated at the time of

purchase as separate or marital.    Therefore, the judge found that

the husband had not met his burden of proving that the tangible

personal property acquired during the marriage using the funds

from this account was separate property.    The evidence supports

the trial judge's finding.    In view of the evidence and the trial

judge's findings, we hold that the trial judge did not abuse his

discretion in classifying the tangible personal property

purchased by the husband with funds from this account as marital

property.
            Marital Share of Husband's Separate Real Estate

     The wife contends the trial judge erred in finding the

evidence insufficient to prove she was entitled to an interest in

the husband's three parcels of real estate.    The wife argues the

evidence proved that marital property was contributed to the




                                - 10 -
husband's separate property and that she was able to retrace the

contributed property.   Thus, she argues that under Code

§ 20-107(A)(3)(d) the marital property retains its original

classification and does not become transmuted into the separate

property.

     Code § 20-107.3(A)(3) creates hybrid property that is "part

marital and part separate."   See also Rahbaran v. Rahbaran, 26

Va. App. 195, 205, 494 S.E.2d 135, 140 (1997).   In pertinent part

the statute states that "[w]hen marital property and separate

property are commingled by contributing one category of property

to another, resulting in the loss of identity of the contributed

property, the classification of the contributed property shall be

transmuted to the category of property receiving the

contribution.   However, to the extent the contributed property is

retraceable by a preponderance of the evidence and was not a

gift, such contributed property shall retain its original

classification."   Code § 20-107.3(A)(3)(d).
     "The goal of the retracing process is to link a transmuted

asset to its primary source, which is either separate property or

marital property."   von Rabb v. von Rabb, 26 Va. App. 239, 248,

494 S.E.2d 156, 160 (1997).   As we noted in Rahbaran, marital

property "'does not become untraceable merely because it is mixed

with [separate] property in the same asset.    As long as the

respective marital and separate contribution to the . . . asset

can be identified, the court can compute the ratio and retrace




                              - 11 -
both interests.'"   26 Va. App. at 209, 494 S.E.2d at 141-42

(citations omitted).

     The trial judge found that $119,800 of marital funds were

used to make mortgage payments on the husband's separate parcels

of real estate.   The judge also found that marital funds were

used to repair a furnace ($2,715), to provide gravel for the

roadway of one of the properties ($750), to pay taxes on the

properties ($4,200), and to pay insurance ($1,665).    These

findings establish that the evidence was sufficient to retrace

the contribution of marital funds.     Cf. Rowe v. Rowe, 24 Va. App.

123, 136, 480 S.E.2d 760, 766 (1997) (holding that evidence which

proved the husband invested $82,000 of his separate funds was

"sufficient for purposes of Code § 20-107.3(A)(3)(d) to retrace

the property claimed as separate by the husband").     See also Hart

v. Hart, 27 Va. App. 46, 63-66, 497 S.E.2d 496, 505 (1998)

(approving the use of the Brandenburg v. Brandenburg, 617 S.W.2d

871 (Ky. App. 1981), methodology for tracing).

     Accordingly, we reverse the trial judge's ruling on this

issue, and we remand to the trial judge for reconsideration of

the equitable distribution decision.    Because the trial judge

must reconsider the award, we need not address the husband's

argument on a related issue, i.e., that the trial judge
improperly considered as a factor under Code § 20-107.3(E)(10)

the husband's expenditure of $130,000 of marital funds on his

separate real estate.




                              - 12 -
                        HUSBAND AS WITNESS

     The wife contends the trial judge erred in refusing to allow

her to call the husband as a witness in her case-in-chief.     The

trial judge based his decision on the wife's failure to designate

the husband as a witness in accordance with the pretrial order,

which provided that "counsel shall serve on other counsel a list

of witnesses proposed to be called" and "[w]itnesses not so

identified shall not be called . . . at trial."
     Ordinarily, a judge's "decision of whether and how to

enforce [a pretrial] . . . order is reviewed only for an abuse of

discretion."   Parish v. Spaulding, 26 Va. App. 566, 576, 496

S.E.2d 91, 96 (1998).   However, we note that in Gumenick v.

United States, 213 Va. 510, 193 S.E.2d 788 (1973), the Supreme

Court stated that plaintiff's counsel was entitled to call the

defendants as adverse witnesses even though the defendant

complained that the "names of these defendants had not been

furnished [to opposing counsel] as persons the plaintiff intended

to call as witnesses and plaintiff's counsel issued no summons

for their attendance in court."   Id. at 520, 193 S.E.2d at 796.

The Court reasoned that "[p]arties to a civil action being tried

in court are customarily expected to be present" and that a party

"was entitled to call the [other parties] as adverse witnesses

irrespective of whether or not they had been summoned."     Id.

     In this case, the trial judge's refusal to allow the wife to

call the husband to testify in her case-in-chief was an abuse of



                              - 13 -
discretion.   The obvious purpose of the pretrial order was to

prevent surprise testimony from previously unidentified witnesses

and to permit parties to prepare for trial.   A party cannot claim

that the substance of his own testimony could have surprised him.

Moreover, the husband ultimately testified at trial.    Thus, his

testimony as an adverse witness would not have violated any

substantial policy behind the requirements of the pretrial order.

This error may have been prejudicial to the wife because she was

unable to elicit detailed information from the husband concerning

the various contributions of marital property to the husband's

separate real estate.   Indeed, at the close of the wife's

case-in-chief, the trial judge granted the husband's motion to

strike the wife's evidence as insufficient to prove the marital

contributions caused an increase in the value of the property.
     We note the record indicates that when the wife sought to

call the husband as an adverse witness, he was not then in the

courtroom.    In view of the uncertainty of this circumstance and

because we must remand this matter for reconsideration of the

equitable distribution award, we will not analyze further whether

the trial judge's refusal to allow the wife to call the husband

as an adverse witness was harmless error.

                           SPOUSAL SUPPORT

     Whether to award spousal support and the particular amount

lies within the sound discretion of the trial judge.
          A spouse's entitlement to support and the
          amount of a support award are matters lying
          within the sound discretion of the trial



                               - 14 -
           court. Any such award "will not be disturbed
           on appeal unless it is clear that some
           injustice has been done." In calculating the
           amount of spousal support, the trial court
           must consider the factors set forth in Code
           § 20-107.1. However, "[t]his does not mean
           that the trial court is required to quantify
           or elaborate exactly what weight or
           consideration it has given to each of the
           statutory factors."


McCombs v. McCombs, 26 Va. App. 432, 436, 494 S.E.2d 906, 908

(1998) (citations omitted).

     Among the factors listed by the trial judge in calculating

the award were the parties' earning capacity, financial

resources, education, standard of living during the marriage, the

equitable distribution award, and the tax consequences of the

spousal support award.    The evidence before the judge related to

all of these factors as well as such other factors as were

necessary to consider the equities between the parties.    No

evidence supports the husband's claim that the trial judge abused

his discretion.   However, because the trial judge must reconsider

the equitable distribution award, the trial judge should

reconsider the award of spousal support.     See Code § 20-107.1(8).

                           ATTORNEY'S FEES

     "An award of attorney's fees to a party in a divorce suit is

a matter within the sound discretion of the trial judge, after

consideration of the circumstances and equities of the entire

case."   Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d

626, 631 (1989); see Graves v. Graves, 4 Va. App. 326, 333, 357
S.E.2d 554, 558 (1987).   The husband contends the trial judge



                               - 15 -
erred in disallowing evidence from the husband's attorneys

regarding the amounts of fees attributable to the wife's conduct

in the litigation and thereby abused his discretion by failing to

award the husband attorney's fees.

     The trial judge disallowed the evidence because (1) the

attorneys could only provide estimates of their fees attributable

to enforcement of discovery requests and time spent on motions to

dismiss and to consolidate and (2) the records kept by the

attorneys, rather than the testimony of the attorneys, would be

the best evidence of this information.   In his letter opinion,

the trial judge took notice of the fact that the wife filed five

separate suits against the husband from 1992 through 1995 and

that the present suit is a consolidation of the separate

maintenance claim and a suit for divorce.   He recognized that

those suits resulted in hearings, dismissals, and consolidation

of the suits.   The judge also noted that there were a number of

motions regarding temporary spousal support and motions to compel

discovery.
     Noting that the trial judge denied attorney's fees to the

wife in the two orders granting pendente lite awards, the husband

also argues the that trial judge abused his discretion in

awarding the wife $750 relating to the temporary spousal support

awards.   However, this Court has ruled that "[t]he matter of

pendente lite support remains within the control of the court and

the court can change its mind while the matter is still pending."



                              - 16 -
 Pinkard v. Pinkard, 12 Va. App. 848, 853, 407 S.E.2d 339, 342

(1991).   The record establishes that the trial judge took under

advisement the matter of the wife's attorney's fees for the

temporary support awarded to the wife.    The judge then found that

it was appropriate to award her $750 regarding this support.    The

record fails to establish that the trial judge abused his

discretion.

     The wife argues the trial judge erred in failing to award

her attorney's fees other than those associated with obtaining

temporary spousal support and in defending the husband's motion

to disqualify the wife's attorney.     She bases her argument on the

following language in Thomas v. Thomas, 217 Va. 502, 229 S.E.2d
887 (1976): "where, as here, the trial [judge] finds the wife

needs and is entitled to maintenance and support and the husband

has the financial ability to meet those needs, [his] failure to

award counsel fees to her is, in our opinion, an abuse of [his]

discretion."   Id. at 505, 229 S.E.2d at 890.

     However, in Artis v. Artis, 4 Va. App. 132, 354 S.E.2d 812
(1987), this Court stated the following:
             We do not believe that the court in Thomas
          intended to adopt a rule that whenever a wife
          is granted support, the trial court must
          automatically award attorney's fees. An
          award of attorney's fees to a party in a
          divorce suit is a matter for the trial
          court's sound discretion after considering
          the circumstances and equities of the entire
          case. The equities in the Thomas case
          warranted an award of attorney's fees.

Id. at 138, 354 S.E.2d at 815 (citations omitted).



                              - 17 -
     In the present case, the evidence proved that the wife's

attorney's fees totaled approximately $32,000 and the husband's

attorney's fees totaled over $90,000.    The trial judge awarded

the wife $500 for her attorney's fees incurred in defending the

husband's motion to disqualify the wife's counsel and $750

regarding the temporary award of spousal support.    The judge

stated that "the parties shall bear his or her own attorney's

fees for the other aspects of these suits."   The trial judge

concluded that the wife had ample resources to pay her own

attorney's fees.   The evidence proved that the wife was employed,

making a reasonable salary, and had a number of assets.    Under

these circumstances, we cannot hold that the limited award of

attorney's fees was an abuse of discretion.
     "We have said that 'the key to a proper award of counsel

fees . . . [is] reasonableness under all of the circumstances

revealed by the record.'"   Westbrook v. Westbrook, 5 Va. App.

446, 458, 364 S.E.2d 523, 530 (1988) (citation omitted).   Upon

consideration of the entire record before us, we conclude that

neither party has met his or her burden to prove the trial judge

abused his discretion relating to the award or denial of requests

for attorney's fees.

     For the foregoing reasons, the decree is affirmed in part,

reversed in part and remanded for reconsideration.   On remand,

the trial judge shall award the wife her reasonable attorney's

fees expended on this appeal.



                                - 18 -
     Affirmed in part,
     reversed in part, and
     remanded for reconsideration.




- 19 -
