                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


ANDREW ANTHONY OTT
                                           MEMORANDUM OPINION * BY
v.   Record No. 0614-00-1         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              JANUARY 16, 2001
SUSAN ANN GELBER OTT


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Frederick B. Lowe, Judge

          Jack E. Ferrebee for appellant.

          Henry M. Schwan for appellee.


     In this domestic appeal, Andrew A. Ott (husband) appeals from

a final divorce and equitable distribution decree.   Husband argues

the trial court erred in:   (1) granting Susan A.G. Ott (wife) a

divorce based upon a one-year separation; (2) fixing the date of

separation as August 30, 1997; (3) awarding wife spousal

support; (4) awarding the child dependency exemption to wife;

(5) the valuation of stock and its classification as marital

property; (6) failing to credit husband for taxes paid in the

exercise of stock options; (7) its classification of a portion

of an antique car collection as marital property and its

division of the antique car collection; (8) granting a monetary



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
award to wife; and (9) failing to credit husband for $10,000

given to wife.   Finding no error, we affirm.

                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to wife, the prevailing

party below, granting to her evidence all reasonable inferences

fairly deducible therefrom.      See Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997).       So viewed the

evidence established that Susan and Andrew Ott were married on

August 8, 1978 and had 3 children.        In December 1996 or January

1997, husband moved out of the marital home and began living

above the garage.   On August 30, 1997, husband left the garage

apartment and moved to an apartment owned by the couple, the

Burlington Road property.    On September 4, 1997, wife filed for

divorce on grounds of desertion.     Husband filed a cross-bill

alleging constructive desertion by wife.

     The case was tried before a commissioner in chancery on

January 4 and 5, 1999.   The commissioner filed his initial

report, both parties filed objections and the commissioner later

filed an amended report.    Both parties again filed exceptions.

On March 13, 2000, the trial court issued a final divorce decree

confirming and approving the commissioner's report with some

modifications.   Husband appeals from numerous of the trial

court's rulings.    We address them seriatim.



                                  - 2 -
                       II.    GROUNDS FOR DIVORCE

        Husband first contends the trial court erred by granting a

divorce based on separation for more than one year rather than

his ground of desertion.      Assuming, without deciding, that the

evidence was sufficient to establish desertion, the trial court

was not required to "'"give precedence to one proven ground of

divorce over another."'"      Sargent v. Sargent, 20 Va. App. 694,

707, 460 S.E.2d 596, 602 (1995) (quoting Williams v. Williams,

14 Va. App. 217, 220, 415 S.E.2d 252, 253-54 (1992) (quoting

Robertson v. Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43

(1975))).    If multiple grounds for divorce exist, "'the trial

judge can use . . . sound discretion to select the grounds upon

which . . . to grant the divorce.'"       Sargent, 20 Va. App. at

707, 460 S.E.2d at 602 (quoting Lassen v. Lassen, 8 Va. App.

502, 505, 383 S.E.2d 471, 473 (1989)).      In the instant case, the

evidence established that the parties had been living separate

and apart for more than one year.      Therefore, the trial court

did not err in awarding wife a divorce on the ground of the

parties having lived separate and apart without any cohabitation

and without interruption for more than one year.

                       III.   DATE OF SEPARATION

        Husband next argues that the trial court erred in fixing

August 30, 1997 as the date of separation rather than January

1997.    Resolution of disputed facts is within the purview of the

fact finder.     Howell v. Howell, 31 Va. App. 332, 341, 523 S.E.2d

                                  - 3 -
514, 519 (2000).    When the trial court accepts the

commissioner's findings of fact, this Court will presume those

findings are correct and the trial court's decision will not be

disturbed on appeal unless plainly wrong or without evidence to

support it.   Id.

     Code § 20-107.3 provides that property is to be classified

as of "the last separation of the parties, if at such time or

thereafter at least one of the parties intends that the

separation be permanent."    Thus, there must not only be a

physical separation but also "proof of an intention on the part

of at least one of the parties to discontinue permanently the

marital cohabitation."    Hooker v. Hooker, 215 Va. 415, 417, 211

S.E.2d 34, 36 (1975); see also Luczkovich v. Luczkovich, 26 Va.

App. 702, 713, 496 S.E.2d 157, 162 (1998).   Matrimonial

cohabitation consists of more than sexual relations.   It also

includes the performance of other marital duties and

responsibilities.    See Petachenko v. Petachenko, 232 Va. 296,

299, 350 S.E.2d 600, 602 (1986); see also Dexter v. Dexter, 7

Va. App. 36, 44, 371 S.E.2d 816, 820 (1988).

     Husband testified that wife wanted the marriage to end and

demanded that husband move into the bedroom above the garage in

December 1996 and January 1997.   Wife denied that this was her

intention and presented evidence that she and husband acted as

husband and wife and that she performed marital duties until he

moved out August 30, 1997.   Thus, credible evidence supports the

                                - 4 -
trial court's determination that the parties separated on August

30, 1997 1 when husband moved into the Burlington Road apartment.

                        IV.   SPOUSAL SUPPORT

     Husband asserts that the trial court erred in its award of

spousal support.   First he argues that Code § 20-107.1(F)

requires "[i]n contested cases in the circuit courts, any order

granting, reserving or denying a request for spousal support

shall be accompanied by written findings and conclusions of the

court identifying the factors in subsection E which support the

court's order."    However, the provision requiring written

findings and conclusions "shall apply only to suits for initial

spousal support orders filed on or after July 1, 1998."    1998

Va. Acts, ch. 604, clause 2.    This case was filed September 4,

1997, and not subject to the statutory provision requiring

written findings and conclusions.

     Husband also argues that the amount of spousal support

awarded, $525 per month, was an abuse of discretion.    The

determination of whether a spouse is entitled to support and, if

so, how much support rests within the sound discretion of the

trial court and will be reversed on appeal only if plainly wrong

or unsupported by the evidence.     Sargent, 20 Va. App. at 703,

460 S.E.2d at 600.   In reaching this decision, the trial court


     1
       Several of husband's questions presented and/or
assignments of error involve the trial court's determination of
the date of separation. As such, our holding on this issue is
dispositive of those issues appealed by husband.

                                - 5 -
must weigh the needs and abilities of the parties and consider

the factors set forth in Code § 20-107.1.   Dukelow v. Dukelow, 2

Va. App. 21, 26, 341 S.E.2d 208, 210 (1986).

     In the instant case the commissioner's written findings

supporting the $525/month spousal support award provided:

          I have considered all of the statutory
          factors. I find that the parties had an
          often contentious marriage for 19 years;
          that each party will receive a substantial
          sum of money from the marital assets,
          including a monthly payment from the
          husband's military retirement. I further
          find that the parties' marital debt is not
          significant in view of their assets. I find
          that the parties have enjoyed a reasonable
          standard of living and that their ages,
          physical and mental conditions will not
          prevent either of the parties from
          maintaining current employment, nor are
          there any special conditions that will
          interfere with the parties' respective
          careers.

(Emphasis added).   Viewed in the light most favorable to wife,

the prevailing party, husband had an annual income of

$108,293.90, including bonuses, plus $30,758.76 from military

retirement benefits while the wife had an annual income of

$45,604.80 plus $2,720 from summer employment plus $700 from

work over Christmas break plus $4,426.32 from husband's military

retirement benefits.   Thus, we cannot say the trial court abused

its discretion in granting a spousal support award of

$525/month.




                               - 6 -
                  V.   CHILD DEPENDENCY EXEMPTION

     Husband argues the trial court erred in awarding the child

dependency exemption pursuant to Code § 20-108.1 to wife.

Husband's argument is without merit as the trial court

unequivocally stated "neither party shall be required to sign

documents to grant to the other the right to take the income tax

dependency for any child."

                          VI.   SAIC STOCK

     Husband next alleges that 230 shares of SAIC stock he

received in March 1998 should not have been included in the

trial court's calculation because they were non-vested and no

evidence established a value of non-vested stock.    "'In

determining whether credible evidence exists [to support the

court's finding,] the appellate court does not retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of witnesses.'"     Luczkovich, 26

Va. App. at 712, 496 S.E.2d at 162 (quoting Moreno v. Moreno, 24

Va. App. 190, 195, 480 S.E.2d 792, 795 (1997)).     In the instant

case, husband testified that the 230 shares of stock were

"non-vested stocks."   However, he also testified that this was a

"[v]ested stock grant."   The trial court's determination that

this stock was vested is supported by the evidence and will not

be altered by this Court on appeal. 2


     2
       Husband also states that the trial court improperly valued
this stock because there was no evidence as to the value of

                                - 7 -
     Appellant contends that the award of 230 shares of stock,

acquired in March 1998, was separate property because it was

acquired after the date of separation.     Property acquired after

the last separation is presumed to be separate property.        See

Luczkovich, 26 Va. App. at 712, 496 S.E.2d at 162-63; see also

Price v. Price, 4 Va. App. 224, 231, 355 S.E.2d 905, 909 (1987).

A party claiming property acquired after separation can overcome

the presumption by establishing that the property was "acquired

while some vestige of the marital partnership continued or was

acquired with marital assets."     Dietz v. Dietz, 17 Va. App. 203,

211-12, 436 S.E.2d 463, 469 (1993).      Thus, the 230 shares

delineated as a bonus was awarded for work done both before and

after the date of separation.    Thus it is marital property to

the extent that it was awarded for work done before the date of

separation even though it was received after the date of the

last separation.   See Howell, 31 Va. App. at 347-50, 523 S.E.2d

at 521-23.

     In the instant case, the trial court classified the bonus

as part marital and part separate property on a prorated basis.

Husband testified that he was unsure whether the bonus was for

his work on a specific project or for the entire year.     Husband

believed it might have been a bonus primarily for his work on a


non-vested SAIC stock. However, the trial court set the value
of vested SAIC stock at $58.87 per share. As such, our holding
on this issue is dispositive regarding the valuation of the
stock, as the stock was determined to be vested.

                                 - 8 -
"very successful project -- [that] contributed inordinately to

our bottom line."   He testified that this contract was awarded

in July of 1997, before the date of separation.   However, he

also conceded that he was "responsible for about a third of the

company and that includes about $20,000,000 worth of performing

contracts."   Thus, in the instant case, wife has met her burden

of proving that at least a portion, if not all, of the bonus was

earned prior to the date of separation.   Under the facts of this

case, it was not an abuse of discretion to prorate the bonus,

8/12 as marital and 4/12 as separate property based upon the

portion of 1997 that the parties were together.     See generally

Howell, 31 Va. App. at 347-50, 523 S.E.2d at 521-23.

       VII.   TAXES PAID IN EXERCISE OF SAIC STOCK OPTIONS

     Husband states that the trial court failed to account for

taxes imposed upon him in the exercise of his SAIC stock

options.   The commissioner in chancery's report provided that

"[i]t does not appear that the husband can simply transfer stock

to the wife as one could transfer a listed stock.    Accordingly,

I [sic] the following monetary award has taken into

consideration the capital gains tax that will be assessed

against the husband."   Although the trial court's order does not

specifically state that it accounts for the capital gains tax,

the award was nearly identical to the commissioner's

recommendation; $48,500 by the commissioner compared to $51,800

by the trial court.   Furthermore, although husband alleges the

                               - 9 -
trial court did not consider income taxes paid in exercising the

stock options, there was no evidence presented regarding taxes

other than the capital gains tax.    Therefore, based upon the

record before us, we cannot say that the trial court failed to

account for taxes assessed upon the husband in exercising his

stock options.

                  VIII.   ANTIQUE CAR COLLECTION

     Husband contends the trial court erred in the

classification of his antique car collection as marital property

and in granting wife fifty percent of the value of the

collection, exclusive of his $1,500 separate interest.

Classification of property rests in the sound discretion of the

trial court and will not be reversed unless it is plainly wrong

or without evidence to support it.     See Rahbaran v. Rahbaran, 26

Va. App. 195, 205, 494 S.E.2d 135, 139 (1997).     Code

§ 20-107.3(A)(3) instructs the trial court on how property is to

be classified:

               The court shall classify property as
          part marital property and part separate
          property as follows:
               a. In the case of income received from
          separate property during the marriage, such
          income shall be marital property only to the
          extent it is attributable to the personal
          efforts of either party. In the case of the
          increase in value of separate property
          during the marriage, such increase in value
          shall be marital property only to the extent
          that marital property or the personal
          efforts of either party have contributed to
          such increases, provided that any such
          personal efforts must be significant and

                              - 10 -
          result in substantial appreciation of the
          separate property.
               For purposes of this subdivision, the
          nonowning spouse shall bear the burden of
          proving that (i) contributions of marital
          property or personal effort were made and
          (ii) the separate property increased in
          value. Once this burden of proof is met,
          the owning spouse shall bear the burden of
          proving that the increase in value or some
          portion thereof was not caused by
          contributions of marital property or
          personal effort.
               "Personal effort" of a party shall be
          deemed to be labor, effort, inventiveness,
          physical or intellectual skill, creativity,
          or managerial, promotional or marketing
          activity applied directly to the separate
          property of either party.

          *         *        *        *      *      *        *

               e. When 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 deemed
          transmuted to marital property. However, to
          the extent the contributed property is
          retraceable by a preponderance of the
          evidence and was not a gift, the contributed
          property shall retain its original
          classification.

(Emphasis added).       Thus, if a party "'chooses to commingle

marital and non-marital [property] to the point that direct

tracing is impossible,' the claimed separate property loses its

separate status."       Rahbaran, 26 Va. App. at 208, 494 S.E.2d at

141 (citations omitted).         The party claiming the property to be

marital property must establish that marital funds or personal

efforts of one party were expended and this expenditure resulted

in an increase in value.         Code § 20-107.3(A)(3)(a).   The

                                    - 11 -
personal efforts of only the owner-spouse are sufficient to

cause the property to lose its separate status.    See Rowe v.

Rowe, 24 Va. App. 123, 130-34, 480 S.E.2d 760, 763-65 (1997);

Peter N. Swisher et al., Virginia Family Law Theory and Practice

§ 11-13 n.14 & Ch. 11 app. 1, at 561-64 (2d ed. 1997).    "For

personal labor [or marital funds] contributed to property to be

'significant' and to cause or result in a substantial increase

in value, without proof to the contrary, the personal labor [or

marital funds] must amount to more than customary care,

maintenance, and upkeep."    Martin v. Martin, 27 Va. App. 745,

757, 501 S.E.2d 450, 456 (1998).   Once established, the party

claiming the property to be separate must then "(1) establish

the identity of a portion of hybrid property and (2) directly

trace that portion to a separate asset."    Rahbaran, 26 Va. App.

at 208, 494 S.E.2d at 141.   This tracing does not require the

segregation of the separate portion.    Id. at 207, 494 S.E.2d at

141.   However, "[e]ven if a party can prove that some part of

the asset is separate, if the court cannot determine the

separate amount, the 'unknown amount contributed from the

separate source transmutes by commingling and becomes marital

property.'"    Id. at 208-09, 494 S.E.2d at 141 (citations

omitted).

       In the instant case, wife established that only four of the

eight cars were purchased prior to marriage for approximately

$1,260.   The remaining vehicles were purchased during the

                               - 12 -
marriage for $9,000.    At the time of the divorce, the vehicles

were valued at $29,125.    Husband claimed to have an agreement

with his wife that would allow him to deposit $100 into a

separate account every two weeks (i.e. $2,600 per year).    Wife

denied the agreement existed.    Furthermore, she established that

expenses for the cars far exceeded the $2,600 per year;

$3,739.71 was spent in 1995, $7,717 in 1996, and $4,070 in 1997,

the year they separated.   Additionally, "he bought a lot of

stuff.   There was stuff being delivered to our house by UPS

every day practically, every other day at least.     He went -- he

went on big buying trips."     She testified that:

           He put a lot of time into the cars. You
           have a picture of the house that shows that
           big, huge garage full of parts. We have a
           rental garage -- rental house with a big,
           huge garage behind that that he's got
           stuffed with cars. The room over the garage
           was also his -- stuffed with cars, and he
           spent the majority of his time on that
           -- every night of the week on that
           -- antique car hopping -- and most of the
           weekends. A lot of time.

            *       *      *       *      *      *     *

           [H]e had them sandblasted, made castings,
           completely redid them, painted them. He
           puts them together like models.

     Husband testified that his intent was for the car hobby to

become a business "to sell reproduction parts for white steam

cars."   In doing so he "bought a lot of car parts."   During

their marriage in 1978, he spent many hours working on the

automobiles.    Credible evidence proved that marital funds and

                                - 13 -
extensive personal efforts of one party, the husband,

contributed to the substantial increase in value of the antique

cars.    The personal effort and marital funds expended were more

than simple customary care, maintenance and upkeep of the cars.

        Having met her burden of establishing that the increase in

value resulted from marital funds and personal efforts, it was

husband's burden to establish that the increase was not caused

by the contributions of marital property or personal efforts.

See Code § 20-107.3(A)(3).       Husband failed to meet this burden.

Husband offered no evidence to prove that a portion of the

increased value of the antique car collection was attributable

to either passive forces or the result of separate property

being expended.    We hold that the trial court did not err in

finding the antique car collection, except for $1,500 of the

collection, was marital property and that wife had an interest

therein.

                          IX.    MONETARY AWARD

        Husband next argues that the trial court's monetary award

of $51,800 to wife was not supported by the record and

additionally the trial court failed to explain its rationale.

"[B]ased upon (i) the equities and the rights and interests of

each party in the marital property, and (ii) the factors listed

in subsection E, the court has the power to grant a monetary

award."    Code § 20-107.3(D).    Although, the amount of a monetary

award is within the sound discretion of the trial court, we must

                                  - 14 -
be able to determine that the trial court has made a

determination based upon the evidence as it relates to this code

section.    See Trivett v. Trivett, 7 Va. App. 148, 153-55, 371

S.E.2d 560, 563-64 (1988).   However, this does not require the

trial court to "'quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors.      It

does mean, however, that the court's findings must have some

foundation based on the evidence presented.'"    Id. at 154, 371

S.E.2d at 563 (quoting Wagner v. Wagner, 4 Va. App. 397, 410,

358 S.E.2d 407, 414 (1987)).

     The commissioner's report, as adopted by the trial court,

provides:

                 It is regrettable that the husband's
            SAIC stock is restricted as to transfers and
            ownership. It does not appear that the
            husband can simply transfer stock to the
            wife as one could transfer a listed stock.
            Accordingly, I [sic] the following monetary
            award has taken into consideration the
            capital gains tax that will be assessed
            against the husband.
                 As part of the wife's monetary award
            (other parts coming from the husband's
            military pension, the husband's 401K plan,
            and the sale and division of certain
            assets), recommend that the husband pay to
            wife a partial award for other assets titled
            in his name of $48,500.00.

     Furthermore, the trial court's order provides, "with this

payment the defendant shall retain the SAIC stock, SAIC stock

options, coin collection, and antique car collection."     This

monetary award was to compensate wife for her interests in


                               - 15 -
non-liquid items.   Thus, we cannot say that the trial court's

grant of a monetary award was an abuse of discretion as it was

supported by the evidence.

                         X.     $10,000 CASH

     Lastly, husband claims the trial court should have credited

him with $10,000 he gave to wife during their separation.

Resolution of a dispute of facts is within the discretion of the

trial court.   Howell, 31 Va. App. at 341, 523 S.E.2d at 519.

When the trial court accepts the commissioner's findings of

fact, this Court will presume those finding are correct and the

court's decision will not be disturbed on appeal unless plainly

wrong or without evidence to support it.       Id.   In the instant

case the husband testified that he gave his wife $10,000.       Wife

testified, "He never gave me $10,000 to pay my bills."       The

trial court resolved this dispute in favor of the wife.       This

finding is supported by credible evidence and will not be

disturbed on appeal.

                          XI.    CONCLUSION

     For the reasons set forth above, we affirm the judgment of

the trial court.

                                                        Affirmed.




                                 - 16 -
