                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge Clements and Senior Judge Willis
Argued at Alexandria, Virginia


ROBERT THOMAS GARRETT
                                                                 MEMORANDUM OPINION* BY
v.      Record No. 0155-04-4                                     JUDGE JERE M.H. WILLIS, JR.
                                                                     NOVEMBER 2, 2004
DONNA JEAN GARRETT


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Jonathan C. Thacher, Judge

                  Larry Edwin Johnson for appellant.

                  Herbert S. Rosenblum for appellee.


        Robert Thomas Garrett contends the trial court erred in finding various promissory notes

unenforceable and in refusing to classify the debts represented by those notes as his separate

property. Those rulings affected the trial court’s determination of the parties’ monetary shares of

the marital home.

        Although Mr. Garrett presented six questions in his brief, he consolidated those questions

into three arguments: (1) the trial court erred in ruling as a matter of law that the promissory notes

were unenforceable; (2) even if the notes were not enforceable, the trial court erred in refusing to

find they constituted gifts and should have been deemed husband’s separate property; and (3) the

trial court erred by failing to consider “whether . . . the promissory notes are enforceable . . . either

in fashioning a monetary award or as constituting traceable separate property.” We consider

Mr. Garrett’s issues as presented in these arguments.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Because we find no error in the trial court’s holding that the notes were unenforceable and

that the evidence did not prove that the proceeds of those notes were Mr. Garrett’s separate

property, we affirm the judgment of the trial court.

                                         BACKGROUND

       Mr. and Mrs. Garrett married on February 16, 1980, and separated on February 10, 2002.

Prior to the marriage, Mr. Garrett owned as his separate property a home at 1807 Dryden

Avenue, Ithaca, New York (the Dryden Property), in which the parties resided. On July 7, 1980,

he borrowed $10,000 from his parents (the Dryden Loan) to construct an addition to the Dryden

Property.

       The parties lived in the Dryden Property until they sold it in 1986. They used the

proceeds of the sale to purchase and move into 326 Blackstone Avenue, Ithaca, New York (the

Blackstone Property). On August 22, 1986, Mr. Garrett borrowed $20,000 from his parents to

help purchase the Blackstone Property and gave them a promissory note for that amount (the

Blackstone Note). The Note contained the following provision:

               Not later than the fifteenth day of each month, beginning in
               September 1986, the Borrower(s) will pay the Lender’s Trustees a
               minimum of Two Hundred Dollars ($200.) of which amount the
               proportionate per annum interest will apply.

       On May 16, 1990, the parties sold the Blackstone Property and used the proceeds to help

fund the purchase of 4216 Ann Fitz Hugh Drive, Annandale, Virginia (the Annandale Property).

From December, 1990 through December, 1991, Mr. Garrett borrowed additional money from

his parents for the purchase of and improvements to the Annandale Property, giving them a

series of promissory notes totaling approximately $160,000 (the Annandale Notes).

       On November 10, 2003, the trial court conducted an ore tenus hearing to determine the

status of and debts created by the loans. The parties submitted exhibits, including four




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promissory notes for $15,000, $50,000, $25,000 and $35,000, and four checks that Mr. Garrett’s

parents had written to him for $50,000, $50,000, $25,000 and $35,000.1

       In its opinion letter dated November 13, 2003, the trial court made findings of fact and

conclusions of law. It found that although the Dryden Loan “[wa]s not evidence[d] by a note,

only a copy of the check written by” Mr. Garrett’s parents, “the parties agree[d] that this was a

loan.” Therefore, “at best,” the court “conclude[d] that at one point there was a note payable on

demand signed on or about July 7, 1980.” Such a note given in 1980 “would no longer be

enforceable.”

       Finding that “there has . . . never been any payment on the debts created by the

Blackstone Note,” the trial court applied Code § 8.3A-118 and found that an action was never

timely commenced within six years of the due date.

       The trial court found that the Annandale Notes contained an August 1991 maturity date

and that husband failed to pay the amounts in full. Relying on Code § 8.3A-118(a),2 the trial

court ruled that any action on the notes was “barred by the statute of limitations.”

                          ENFORCEABLILTY OF PROMISSORY NOTES

       After “reviewing the exhibits, listening to the witnesses’ testimony, and considering

counsels’ arguments,” the trial court made the following detailed findings:

                       All of the Annandale Notes are identical with exception of
                the amount loaned and the date they were entered into. Each of the
                Annandale Notes contains a payment provision that states
                “[Husband] may make monthly payments on the first day of each
                month beginning [a date approximately four to six weeks
                following the date that particular note was signed] . . . .” See Joint
                Exhibits at Tab 9. Later in the same payment provision of each of

       1
          Although no corresponding promissory note was produced for one of the $50,000 loans,
the parties stipulated to the loan.
       2
        The trial court, in its opinion letter, referred to Code § 3.8A-118. This is apparently a
typographical error, intended to refer to Code § 8.3A-118, the Uniform Commercial Code. The
Code contains no Title 3.8.

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               these notes it states “[i]f, on August 1, 1991, I still owe amounts
               under this Note, I will pay those amounts in full on that date,
               which is called the ‘maturity date.’” Id. [Husband] did not pay all
               of the amounts in full when the August 1, 1991 “maturity date”
               arrived. At that point the [husband] was in breach and the lenders
               could have sued to recover the amounts due on the note. “[A]n
               action to enforce the obligation of a party to pay a note payable at a
               definite time must be commenced within six years after the due
               date or dates stated in the note or, if a due date is accelerated,
               within six years after the accelerated due date.” Va. Code
               § [8.3]A-118(a). Even assuming that the monthly payments the
               [husband] was making under these notes could successfully toll the
               running of the statute of limitations, the [husband] testified that he
               has not made a payment since July of 1994. Any action the lenders
               could have brought under the Annandale Notes would still be
               barred by the statute of limitations.

                       The court concludes that the debts created by these loans or
               promissory notes are unenforceable as being barred by the statute
               of limitations and may not be considered part of the marital debt.
               Thus, they are not a barrier to this Court’s equitable distribution
               determination.

       The trial court concluded that “[t]he debts created by the Dryden Loan, the Blackstone

Note, and the Annandale Notes are unenforceable, being barred by the statute of limitations, and

may not be considered as part of the marital debt.”

       The judgment of a trial court sitting in equity, “when based upon an ore tenus hearing, is

entitled to great weight and will not be disturbed on appeal unless plainly wrong or without

evidence to support it.” Frye v. Spotte, 4 Va. App. 530, 537, 359 S.E.2d 315, 319-20 (1987).

       Statutes of limitations are procedural and “address[] not the viability of the claim itself,

but its enforceability.” Taylor v. Taylor, 14 Va. App. 642, 648-49, 418 S.E.2d 900, 904 (1992).

Therefore, the statute of limitations in effect at the time enforcement is sought controls. The trial

court held that “the applicable statute for determining the current status of these debts” is the

1992 version of Code § 8.3A-118. The provisions of Code § 8.3A-118 have remained

unchanged since 1992. Code § 8.3A-118(a) provides, in pertinent part:




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                [A]n action to enforce the obligation of a party to pay a note
                payable at a definite time must be commenced within six years
                after the due date or dates stated in the note or, if a due date is
                accelerated, within six years after the accelerated due date.

Code § 8.3A-118(b) provides, in pertinent part,

                [I]f demand for payment is made to the maker of a note payable on
                demand, an action to enforce the obligation of a party to pay the
                note must be commenced within six years after the demand. If no
                demand for payment is made to the maker, an action to enforce the
                note is barred if neither principal nor interest on the note has been
                paid for a continuous period of ten years.

Code § 8.3A-108 defines commercial instruments that are “[p]ayable on demand or at a definite

time.”

                         (a) A promise or order is “payable on demand” if it (i)
                states that it is payable on demand or at sight, or otherwise
                indicates that it is payable at the will of the holder, or (ii) does not
                state any time of payment.

                        (b) A promise or order is “payable at a definite time” if it is
                payable on elapse of a definite period of time after sight or
                acceptance or at a fixed date or dates or at a time or times readily
                ascertainable at the time the promise or order is issued, subject to
                rights of (i) prepayment, (ii) acceleration, (iii) extension at the
                option of the holder, or (iv) extension to a further definite time at
                the option of the maker or acceptor or automatically upon or after a
                specified act or event.

                       (c) If an instrument, payable at a fixed date, is also payable
                upon demand made before the fixed date, the instrument is payable
                on demand until the fixed date and, if demand for payment is not
                made before that date, becomes payable at a definite time on the
                fixed date.

Code § 8.3A-108.

         Mr. Garrett acknowledged that he never made any payment on the Dryden Loan or the

Blackstone Note. Although he initially made monthly payments of $1,500 on the Annandale

Notes, his last payment was in June 1994. The Annandale Notes included an August 1, 1991

“maturity date” at which time he agreed to pay the “remaining amounts in full.” The remainder

owed on the Annandale Notes was never paid.

                                                   -5-
       We hold that the trial court accurately analyzed the several notes and correctly applied

the appropriate statutes of limitation to find them unenforceable and not marital debts.

                           REFUSING TO FIND NOTES WERE GIFTS

       Mr. Garrett next contends that if the notes were unenforceable, their proceeds constituted

gifts to him and should have been determined to be his separate property.

       Code § 20-107.3(A)(1)(ii) defines as separate property “all property acquired during the

marriage by . . . gift from a source other than the other party.”

       “To establish the existence of a gift, the donee must prove by clear and convincing

evidence: ‘(1) the intention on the part of the donor to make the gift; (2) delivery or transfer of

the gift; and (3) acceptance of the gift by the donee.’” Utsch v. Utsch, 38 Va. App. 450, 458,

565 S.E.2d 345, 349 (2002) (quoting Theismann v. Theismann, 22 Va. App. 557, 566, 471

S.E.2d 809, 813, aff’d on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996)); see also Dean

v. Dean, 8 Va. App. 143, 146, 379 S.E.2d 742, 744 (1989) (holding that one who claims

ownership of property by virtue of a gift bears the burden of proving by clear and convincing

evidence the donor’s donative intent and delivery of the gift).

       The record fails to support Mr. Garrett’s position. The evidence proved neither donative

intent nor a donative act on the part of Mr. Garrett’s parents. They never marked the notes paid

or stated an intention to discharge the debts. Mr. Garrett thus failed to prove by clear and

convincing evidence that the notes or their proceeds were gifts. The trial court did not err in

refusing to find the notes to be separate property.

                     REFUSAL TO CONSIDER NOTES IN
   FASHIONING A MONETARY AWARD OR AS TRACEABLE SEPARATE PROPERTY,
                WHETHER ENFORCEABLE OR UNENFORCEABLE

       Finally, Mr. Garrett contends that if “the promissory notes are [deemed] enforceable and

[his] separate obligation . . ., then the loans to [him] for the construction of the house should have


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been taken into consideration when determining any award of value between the parties of the

marital residence.” Because we hold the trial court correctly determined the notes to be

unenforceable, we do not address this argument.

       Alternatively, Mr. Garrett contends that if the notes are deemed unenforceable, “the court

must determine whether [his] parents[’] decision not to enforce the promissory notes constituted

a gift to [him].” If they constituted a gift, the “question becomes whether or not the separate

property is traceable.”

       Mr. Garrett failed to prove the notes were gifts. Accordingly, they were not his separate

property and there was no need to trace them.

       We affirm the judgment of the trial court. We grant Mrs. Garrett’s request for an award

of attorney’s fees in connection with this appeal and remand the case to the trial court for the

determination of that award.

                                                                           Affirmed and remanded.




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