                       COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


LESLIE DALLAS MARSHALL
                                            MEMORANDUM OPINION *
v.   Record No. 3367-02-2                       PER CURIAM
                                               JULY 1, 2003
JAN B. MARSHALL


              FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
                        William H. Shaw, Judge

            (Stephen A. Palmer, on brief), for appellant.

            (McClanahan Ingles; Martin, Ingles & Ingles,
            Ltd., on brief), for appellee.


     Leslie Dallas Marshall appeals the circuit court's ruling

rejecting his exceptions to the report of the commissioner in

chancery in the divorce proceedings initiated by his wife, Jan B.

Marshall.   On appeal, husband contends the commissioner (1) erred

by not accepting his "document, which purported to be a memorandum

of fact and law or a brief," (2) incorrectly determined wife

traced the separate funds used to pay debt, and (3) incorrectly

determined those separate funds increased the value of the

property.   Upon reviewing the record and briefs, we conclude that

this appeal is without merit.   Accordingly, we summarily affirm

the decision of the trial court.   See Rule 5A:27.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              Background

     On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

prevailing below.    See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).    In this light, the evidence proved

that in 1986, wife's parents conveyed to the wife a parcel of

land by deed of gift which was titled to both parties as tenants

by the entirety.    Her parents later gave her approximately

$151,000 for improvements to the property.   The wife used

approximately $144,700 for improvements to the residence and

used the remainder for appliances and furniture.   An appraiser

established the fair market value of the residence was $172,500,

and reported that at the time of the property transfer the land

was worth $60,000.   At the time of the trial, the land was worth

$65,100 and the improvements worth $107,400.

     The husband declined to present any evidence at the

commissioner's hearing.   The commissioner allowed each party to

submit a memorandum of fact and law in lieu of closing

arguments.   The husband submitted, instead, a fifteen-page

document reciting evidence not introduced at the hearing.      The

commissioner declined to consider the document.

     The commissioner concluded the wife's contributions of

separate property exceeded the value of the jointly-titled real

property.    The commissioner found that husband made no separate

contribution to the property.    Both parties made marital

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contribution of personal efforts by performing physical work to

build the residence.

        The husband filed exceptions to the commissioner's report.

After hearing argument, the circuit court overruled the

husband's exceptions.

                               Analysis

                                  I.

        The husband contends the commissioner erred by rejecting

his written argument.    We disagree.     Although the commissioner

permitted closing arguments in the form of written memoranda,

the husband's document contained new evidence he was submitting

for the first time.    The husband had not moved to reopen the

case.    Because the document contained evidence and allegations

not raised at trial, the trial court did not err in holding that

the commissioner was not required to consider it.

                             II. and III.

        Marital property includes "all property titled in the names

of both parties" and property acquired by either spouse during

the marriage "in the absence of satisfactory evidence that it is

separate property."    Code § 20-107.3(A)(2).    Separate property

is the following:

             (i) all property, real and personal,
             acquired by either party before the
             marriage; (ii) all property acquired during
             the marriage by bequest, devise, descent,
             survivorship or gift from a source other
             than the other party; (iii) all property
             acquired during the marriage in exchange for

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          or from the proceeds of sale of separate
          property, provided that such property
          acquired during the marriage is maintained
          as separate property; and (iv) that part of
          any property classified as separate pursuant
          to subdivision A 3.

Code § 20-107.3(A)(1).   Separate property may exist, even when

marital and separate property are "commingled" in some manner,

"to the extent the contributed property is retraceable by a

preponderance of the evidence and was not a gift."     See Code

§ 20-107.3(A)(3)(d), (e) and (f).

     The property, given to the wife during the marriage, was

jointly titled and, therefore, presumed marital property.     The

burden was on the wife to establish that the property could be

traced to her separate funds.     See Rexrode v. Rexrode, 1

Va. App. 385, 392, 339 S.E.2d 544, 548 (1986).    To classify all

or a portion of such property as separate and not marital, "the

circumstances of each case" must allow the court to trace the

spouse's contribution back to separate property.     von Raab v.

von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).

     The evidence showed the wife's parents gave her the

property and the funds to construct the residence, increasing

the value of the real property.    Wife's contribution of her

separate funds to the property exceed the property's current

fair market value.   The trial court agreed with the

commissioner's finding that wife presented sufficient evidence

to trace the purchase of the home to her separate funds.      We


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will not overturn that factual finding unless plainly wrong or

without evidence to support it.   See Gilman v. Gilman, 32

Va. App. 104, 115, 526 S.E.2d 763, 768 (2000).

     The trial court did not err by overruling husband's

exceptions to the commissioner's report and confirming the

report in whole.   Accordingly, we summarily affirm the decision

of the trial court.   See Rule 5A:27.

                                                           Affirmed.




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