                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


JOHN R. MAXEY
                                        MEMORANDUM OPINION * BY
v.          Record No. 2692-96-2      JUDGE ROSEMARIE ANNUNZIATA
                                         SEPTEMBER 23, 1997
WILLAVENE H. MAXEY


                  FROM THE CIRCUIT COURT OF HANOVER COUNTY
                         Richard H. C. Taylor, Judge

                (Theresa Rhinehart, on brief), for appellant.
                 Appellant submitting on brief.

                Robert G. Cabell, Jr. (Robert Cabell &
                Associates, on brief), for appellee.



        John R. Maxey (husband) appeals the equitable distribution

order of the trial court which confirmed the commissioner in

chancery's finding that Willavene H. Maxey (wife) was entitled to

certain percentage interests in two parcels of real property.

Finding no error, we affirm.

        The parties were married in June 1982, each for the second

time.       After numerous separations, wife filed for divorce in

September 1990.       In August 1991, the trial court referred the

matter to a commissioner in chancery, directing the commissioner

to report on a classification and distribution of the parties'

property.       Hearings before the commissioner were held in November

1991, and the commissioner's report was filed February 29, 1996.

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The final decree of divorce, entered in October 1996, confirmed

the commissioner's report on the issue of equitable distribution.

     This appeal involves the distribution of two parcels of real

estate, the Hanover property and the Buckingham property.    When

the parties were married in 1982, husband owned, outright, the

home in which they lived.    The record contains no evidence to

establish the value of the home at the time of the marriage.      The

evidence established that both parties worked until husband

became totally disabled in 1983 or 1984; wife continued to work

thereafter.   Sometime after the marriage, husband put a new

kitchen in the home.   The record contains no evidence to

establish the value of the new kitchen.   Wife's testimony showed

that she contributed monetarily to the purchase of paint, floor

tile, and wooden ceiling beams used to improve the home.    The

record contains no evidence to establish the value of these

improvements.
     In 1983, husband purchased approximately fifteen acres of

land, upon which a new home for the parties was built (the

Hanover property).   Husband used his "disability money" to make a

down payment of $20,000 on the land; he signed a deed of trust

for the remaining $25,000.   The first home was sold and cleared

approximately $130,000.   Husband testified that he used the

$130,000 to pay for construction of the new home.   The record

contains no evidence to establish the total cost of construction.

     In 1987, husband purchased approximately 102 acres of land




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(the Buckingham property), for a purchase price of $55,000.

Husband received credit on the purchase price in the amount of

$15,000 for a camper, an antique car and certain livestock that

he transferred to the seller.   The camper was purchased during

the marriage and was titled in the names of both parties.    The

record contains no evidence to establish the value of the camper.

Husband testified that wife did not contribute to the purchase

of the camper or payments made on it, but the record contains no

evidence to establish which assets husband used for the purchase

of the camper.   The record contains no evidence to establish the

value or source of either the antique car or the livestock

transferred to the seller of the Buckingham property.
     The commissioner's hearing was held in November 1991.     By

the fall of 1995, the commissioner's report had not been filed,

and the parties requested the commissioner to make a limited

finding with respect to a percentage of ownership of the parcels.

In consideration of the standards set forth in Code § 20-107.3,

the commissioner found that wife's share of the Hanover property

should be 35% and that her share of the Buckingham property

should be 20%.   Upon wife's motion to approve the commissioner's

report, the trial court concluded that the record contained

sufficient evidence to support the commissioner's findings.

                                  I.

     On appeal, husband alleges error in the classification of

the two parcels of real estate.    He concedes that the assets used




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to purchase the parcels were "transmuted" and, thus, that both

parcels became marital property.       See Code § 20-107.3(A)(3)(e).

He contends, however, that his contributions were "retraceable"

and should have been classified as his separate property.       Id.

     Husband's appellate contention on the issue of

classification is belied, and procedurally barred, by the

position he took in requesting the commissioner in chancery to

recommend a percentage distribution of both parcels in their

entirety.   The request for a percentage distribution of the

entire value of the parcels was, by its very nature, an

abandonment of a request that the commissioner determine certain

portions of the parcels to be separate property and thus, by

definition, not subject to distribution.      The parties themselves,

in other words, considered the entirety of the parcels to be

marital property subject to distribution; classification was not

an issue.   Thus, even assuming the classification was in error,

husband acquiesced in it.   "`He cannot approbate and

reprobate--invite error and then take advantage of his own

wrong.'"    Steinberg v. Steinberg, 21 Va. App. 42, 50, 461 S.E.2d

421, 424 (1995) (quoting Sullivan v. Commonwealth, 157 Va. 867,

878, 161 S.E. 297, 300 (1931)).

     In the alternative, even assuming husband had established

that his contributions could be traced, he failed to prove the

extent to which, if any, those contributions were separate

property.    See Brett R. Turner, Equitable Distribution of




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Property § 5.23 (2d ed. 1994) (explaining that tracing requires

the owner to prove a series of exchanges extending back to an

original separate asset).   Here, the evidence does not establish

the value of the first home at the time of the marriage.

Subsequent to the marriage, the home was improved by the addition

of a new kitchen, a paint job, tile work and the addition of

wooden ceiling beams.   The evidence does not establish the value

of any of the improvements or the extent to which marital assets

were used for their acquisition.       Thus, we cannot determine the

extent to which the first home was separate property.

Furthermore, the evidence does not establish the nature or source

of husband's "disability money."       Accordingly, we cannot

determine the extent to which, if any, the "disability money" was

separate property.   See Brinkley v. Brinkley, 5 Va. App. 132,

140-41, 361 S.E.2d 139, 143 (1987); Turner, supra at § 6.16.

     Finally, the evidence does not establish the extent to

which, if any, the contributions of personal property toward the

purchase of the Buckingham property were themselves separate

property.   The camper was purchased during the marriage and was

titled in both parties' names, and the evidence did not establish

a source of funds for the purchase.      Even assuming husband paid

the entire amount, the evidence fails to establish whether or not

the funds he used were separate property.      In any event, the

evidence does not show what amount of the $15,000 credit the

camper represented, if any, and the evidence fails to establish



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the value or source of the antique car or livestock also

contributed.




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                                  II.

        The standard of review of the trial court's equitable

distribution is well established.
          [U]nless it appears from the record that the
          trial judge has abused his discretion, that
          he has not considered or has misapplied one
          of the statutory mandates, or that the
          evidence fails to support the findings of
          fact underlying his resolution of the
          conflict in the equities, the equitable
          distribution award will not be reversed on
          appeal.


Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 729 (1990).     We

review the evidence and all reasonable inferences in the light

most favorable to the prevailing party below, wife in this

instance.     See Alphin v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d

572, 574 (1992).    We find no abuse of discretion in the trial

court's decision to confirm the equitable distribution

recommendation of the commissioner in chancery in the present

case.

        The percentage distribution figures at issue here represent

a balancing of all the factors of Code § 20-107.3(E), not simply

the monetary contributions to the acquisition of the property as

husband would suggest.    Under the statute, consideration must

also be given to the parties' non-monetary contributions both to

the well-being of the family and to the acquisition, care and

maintenance of the marital property.    Here, neither party

suggests that their marriage was anything but "stormy."

Nonetheless, the record contains evidence to show that wife



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contributed to the well-being of the family both monetarily, by

putting her work money to household use, and non-monetarily, by

cooking, shopping, cleaning, gardening and the like.

Furthermore, while there is no dispute that wife made little or

no contribution to the acquisition of the marital property, the

record contains evidence to establish that wife contributed to

the care and maintenance of the marital property.   Moreover,

although riddled with problems, including numerous periods of

separation, fourteen years separated the date of marriage from

the date of divorce.   The evidence also showed that, when the

decree was entered, both parties were in their late sixties and

both were disabled to some extent.   And, while neither party

disputes that the marriage was "doomed from the start," both

accept equal responsibility for the circumstances and factors

which contributed to the dissolution of the marriage.   In

addition, the record establishes that both parcels of real estate

were acquired during the course of the marriage and both are

non-liquid assets.   Finally, contrary to husband's contention

that he would bear the entire burden of outstanding debt and tax

liability on the parcels, the percentage distribution, by

definition, ensures that wife will bear a proportion of those

liabilities.
     Both the commissioner and the trial court stated that they

had considered the relevant factors, and the record supports the

decision.   We accordingly find no abuse of discretion, and affirm




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the decision of the trial court.

                                       Affirmed.




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