                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED



              JORGE JUAN NIETO CANO
                                                                                   MEMORANDUM OPINION*
              v.      Record No. 1817-13-3                                             PER CURIAM
                                                                                       APRIL 1, 2014
              JESSICA BROOKE DAVIDSON


                                  FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                              Thomas J. Wilson, IV, Judge

                                (Shelly R. James, on briefs), for appellant.

                                (Grant D. Penrod; David A. Penrod; Beth C. Driver; Hoover Penrod,
                                PLC, on brief), for appellee.


                      Jorge Juan Nieto Cano (husband) appeals from the parties’ final decree of divorce. Husband

              argues that the trial court erred by (1) finding that he had “only $40,160.00 of separate equity in the

              marital home because the evidence proved that additional separate funds of [husband] added to the

              equity in the home”; (2) “dividing the marital property 50/50 where the evidence proved that

              [husband] contributed significant amounts of separate funds to the family”; and (3) denying

              husband’s request for spousal support and “misapplying the factors in Code § 20-107.1,” finding

              that husband was in the same financial position as when he married Jessica Brooke Davidson (wife),

              and “ignoring the disparity in the parties’ income.” By way of cross-error, wife argues that the trial

              court erred by awarding husband $40,160 as his separate property from the sale of the former

              marital residence. Upon reviewing the record and briefs of the parties, we conclude that the

              arguments presented by the parties are 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

         “When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

         On November 29, 2001, wife and husband married in Spain. Husband owned an

apartment in Spain, which is where the parties lived when they first married. While in Spain,

husband worked with NATO, and wife did not work outside of the home. Shortly thereafter, the

parties moved to the United States, and husband rented his Spanish apartment. Wife attended

school in the United States and obtained her Ph.D. in history.

         In 2004, the parties moved from Massachusetts to Harrisonburg, Virginia. Wife worked

as a professor at James Madison University (JMU). Husband worked various jobs.

         In 2007, the parties purchased the marital residence. Husband used $40,160 from his

separate property for the down payment. There was no evidence about the purchase price of the

house.

         During the marriage, husband sold his Spanish apartment. He used some of the funds to

pay marital debts and make repairs and improvements to the marital residence. He also used his

separate funds to purchase a Honda Odyssey.

         On October 1, 2011, the parties separated, and husband moved from the marital

residence. Wife and the parties’ two children stayed in the marital residence. Both parties

worked at JMU; however, wife earned more than husband.

         Wife filed a complaint for divorce on October 9, 2012. Husband filed an answer and

counter-complaint. On August 2, 2013, the parties presented their evidence to the trial court. On

August 9, 2013, the trial court issued its letter opinion, which granted a no-fault divorce to wife.

The trial court held that the marital residence was valued at $254,500 and had a mortgage

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balance of $166,120.96 as of the date of separation. It found that husband contributed $40,160

from his separate funds to the equity in the marital residence and awarded him this amount.

After evaluating the factors in Code § 20-107.3, the trial court equally divided the parties’

marital assets. After considering the factors in Code § 20-107.1, the trial court denied husband’s

request for spousal support.

        The trial court entered the final decree of divorce on August 26, 2013. Both parties

contest portions of the trial court’s rulings.

                                             ANALYSIS

                                      Former marital residence

        Both parties argue that the trial court erred in finding that husband made a separate

contribution of $40,160 to the former marital residence. Husband contends he made a greater

separate contribution, and wife asserts that husband failed to prove his separate contributions.

        On appeal, “decisions concerning equitable distribution rest within the sound discretion

of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the

evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing

Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).

        The parties purchased the former marital residence during the marriage; therefore, it is

presumed to be marital property. See Code § 20-107.3(A)(2). Husband claimed that he paid the

down payment with his separate property.

        Code § 20-107.3(A)(3)(d) provides:

                When 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.
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       “The party claiming a separate interest in transmuted property bears the burden of

proving retraceability.” von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156,

160 (1997) (citation omitted). “In order to trace the separate portion of hybrid property,

. . . a party must (1) establish the identity of a portion of hybrid property and (2) directly

trace that portion to a separate asset.” Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494

S.E.2d 135, 141 (1997) (citing Code § 20-107.3(A)(3)(d)-(f)).

       Husband had the burden to trace his separate contributions from the marital residence.

Both parties admitted that the Spanish apartment was husband’s separate property. Husband

testified and offered exhibits to prove that he used $40,160 from the proceeds of the sale of his

Spanish apartment to pay the down payment on the marital residence. Wife also testified that

husband “put a large sum of money down for the down payment.” She explained that they

“temporarily borrowed money from his family” and husband repaid the loan with funds from the

sale of his apartment. The evidence, including husband’s testimony and exhibits and wife’s

testimony, supports the trial court’s ruling that husband paid $40,160 for the down payment from

his separate funds.

       Since wife admitted that husband paid the down payment on the former marital residence

with separate funds, we will not consider her argument on appeal that he did not trace the funds.

       Husband argues that he used additional separate funds to pay for various improvements

associated with the former marital residence. He also asserts that he made several payments

from his separate funds to reduce the principal on the mortgage. The trial court rejected

husband’s claims and found that there was insufficient evidence to prove the “amounts

contributed to improvements and increases in value attributable to those expenditures.” The trial

court did not err in finding that husband’s separate contributions to the marital residence were

limited to the down payment of $40,160. There was no additional evidence to establish clearly

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how much husband paid, where the funds came from, and how it increased the value of the

former marital residence.

       In her appeal, wife argues that the trial court should not have given husband a

“dollar-for-dollar credit from the initial investment” and should have considered how the down

payment affected the equity. There was evidence regarding the equity in the home, which was

$88,379.04, as of the date of separation. Clearly, the amount of down payment did not decrease

over time. The trial court could not calculate whether the amount of the down payment

increased over time because there was no testimony regarding the purchase price of the home

and the initial mortgage. Therefore, the trial court awarded the minimum to husband, which was

the amount he paid.

       In referring to his additional separate payments toward the house, husband contends that

“logic also proves that he made these separate contributions.” Husband argues the equity in the

home included his down payment, his separate contributions, and principal reductions.

However, there was no evidence to support this argument. The only amount that was

successfully traced was the amount of the down payment.

       The trial court did not err in awarding husband $40,160 for his separate contributions to

the marital residence.

                                        Equitable distribution

       Husband argues that the trial court erred in dividing equally the parties’ marital assets

because he contributed more to the marriage. He notes that he gave up his career, left his home

country of Spain, supported his wife with the furtherance of her education and career, and

contributed separate funds to the marriage.

       In fashioning an equitable distribution award, the court must consider the factors in Code

§ 20-107.3(E). “[A]s long as the trial court considers all the factors, it is at the court’s discretion

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to determine what weight to give each factor when making the equitable distribution award.”

O’Loughlin v. O’Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323, 325 (1995) (citation omitted).

       “‘Virginia law does not establish a presumption of equal distribution of marital assets. It

is within the discretion of the court to make an equal division or to make a substantially disparate

division of assets as the factors outlined in Code § 20-107.3(E) require.’” Torian v. Torian, 38

Va. App. 167, 181, 562 S.E.2d 355, 362 (2002) (quoting Matthews v. Matthews, 26 Va. App.

638, 645, 496 S.E.2d 126, 129 (1998) (internal citations omitted)).

       In this case, the trial court examined the factors in Code § 20-107.3(E). Contrary to

husband’s argument, the trial court considered and noted husband’s support of wife while she

obtained her Ph.D. and advanced in her career. The trial court also noted husband’s separate

contributions toward the down payment of the marital residence and the purchase of a vehicle.

After considering each of the factors, the trial court held that the marital property should be

divided equally. Based on the record, the trial court did not abuse its discretion in dividing the

marital property equally.

                                          Spousal support

       Husband argues that the trial court erred in denying his request for spousal support.

Husband asserts that the trial court erroneously concluded that after the divorce, husband would

be in the same financial situation as he was prior to the marriage. Husband notes that he is

unable to meet his expenses and purchase a home, but he was able to do both prior to the

marriage. He argues that his standard of living deteriorated after the parties’ separation, whereas

wife’s standard of living was the same. He also notes that during the marriage, wife was able to

complete her education and obtain a good career, but husband had to give up his career and move

from his home country. Furthermore, husband contends wife has the ability to pay spousal

support.

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       “‘In reviewing a spousal support award, we are mindful that the trial court has broad

discretion in awarding and fixing the amount of spousal support. Accordingly, our review is

limited to determining whether the trial court clearly abused its discretion.’” West v. West, 53

Va. App. 125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679,

607 S.E.2d 126, 128 (2005)). In awarding spousal support, a trial court must consider the factors in

Code § 20-107.1(E); 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. It

does mean, however, that the court’s findings must have some foundation based on the evidence

presented.” Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).

       The trial court considered all of the factors in Code § 20-107.1(E), including each party’s

income and expenses. Contrary to husband’s arguments, the trial court acknowledged that

husband left his “successful career” and country in order to support wife while she obtained her

Ph.D. and started her career. Based on the record, the trial court did not abuse its discretion in

denying husband’s request for spousal support.

                                     Attorney’s fees and costs

       Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we deny her request for an award of attorney’s fees and costs she

incurred on appeal.

                                          CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                           Affirmed.




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