                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Alston
Argued at Richmond, Virginia


CHRISTA P. LIGHTBURN
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0180-09-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                  OCTOBER 13, 2009
ROBERT C. LIGHTBURN


                     FROM THE CIRCUIT COURT OF MADISON COUNTY
                                 Daniel R. Bouton, Judge

                 John H. Kitzmann (Kim M. Mattingly; Davidson & Kitzmann,
                 PLC, on briefs), for appellant.

                 Connor Crook (D. Michael Atkins; McClure, Callaghan & Atkins,
                 on brief), for appellee.


       In this domestic appeal, Christa P. Lightburn (“wife”) appeals a ruling of the Circuit

Court of Madison County, classifying various assets as the separate property of Robert C.

Lightburn (“husband”). Wife contends that husband did not put forth sufficient evidence to rebut

the statutory presumption in favor of classifying those assets as marital property. Additionally,

wife assigns error to the circuit court’s rulings with respect to spousal support and attorney’s

fees. Finally, each party requests an award of appellate attorney’s fees and costs. For the

following reasons, we affirm in part and reverse in part.

       “On appeal, we view the evidence in the light most favorable to the prevailing party

below,” in this case, husband. Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669

(1994). “That principle requires us to ‘discard the evidence’ of [wife] which conflicts, either

directly or inferentially, with the evidence presented by [husband] at trial.” Congdon v.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (quoting Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). However, as the parties

are fully conversant with the record in this case, and because this memorandum opinion carries

no precedential value, we recite only those facts and incidents of the proceedings as are

necessary to the parties’ understanding of the disposition of this appeal.

                                      I. Equitable Distribution

       The property at issue in this appeal is as follows: (1) three vehicles – a 1996 Dodge

Caravan, a 1998 Subaru Forrester, and a 2001 Jeep Cherokee (collectively “the vehicles”); (2) a

residence and acreage in West Virginia (“the West Virginia residence”); (3) 100% of the shares

of Game Bit, Inc.; (4) a 100% membership interest in Game Place, LLC; and (5) a 1% interest in

Robert A. Lightburn, LLC. 1 After hearing extensive testimony and reviewing numerous exhibits

concerning, inter alia, the respective financial situation of the parties, the standard of living

established during the marriage, the duration of the marriage, and the respective earning capacity

of husband and wife, the circuit court found that the assets listed above were solely husband’s

separate property.

       “The [circuit] court’s classification of property as marital or separate is a factual finding.

Therefore, that classification will be reversed on appeal only if it is ‘plainly wrong or without

evidence to support it.’” Gilliam v. McGrady, 53 Va. App. 476, 482, 673 S.E.2d 474, 478

(2009) (quoting Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005)).

Code § 20-107.3(A)(2) provides, in pertinent part, that “[a]ll property . . . acquired by either

spouse during the marriage, and before the last separation of the parties . . . is presumed to be

marital property in the absence of satisfactory evidence that it is separate property.” Thus,



       1
        Husband’s father owned the remaining 99% membership interest in Robert A.
Lightburn, LLC.
                                           -2-
“[p]roperty acquired during the marriage is presumptively marital property, unless shown to be

separate property,” Ranney, 45 Va. App. at 32, 608 S.E.2d at 492, and “[t]he party claiming that

property acquired during the marriage is separate property bears the burden of rebutting this

presumption,” Courembis v. Courembis, 43 Va. App. 18, 34, 595 S.E.2d 505, 513 (2004). 2

       The assets at issue in this appeal were acquired during the marriage, and before the last

separation of the parties. Therefore, husband bore the burden of producing “satisfactory

evidence” to rebut the presumption that these assets were marital property. Code

§ 20-107.3(A)(2). For the sake of simplicity, we will analyze each of the assets individually.

                                         A. The Vehicles

       Wife argues that the circuit court’s classification of the vehicles as husband’s separate

property was plainly wrong and unsupported by the evidence. Specifically, wife argues that

husband failed to produce sufficient evidence to rebut the statutory presumption in favor of

classifying the property as marital. We agree.

       Husband and wife married in August of 1995 and separated in August of 2006. During

their eleven-year marriage the parties acquired three vehicles: a 1996 Dodge Caravan, a 1998

Subaru Forrester, and a 2001 Jeep Cherokee. At trial, husband neither testified that the vehicles

were purchased with his separate property, nor produced any documentary evidence so

demonstrating. “‘If no evidence is presented upon which a chancellor could properly identify

and then classify an item as separate or marital property, faced with the statutory presumption

and the lack of satisfactory evidence to rebut it, the chancellor must classify the property as

marital.’” Courembis, 43 Va. App. at 35, 595 S.E.2d at 513 (quoting Stainback v. Stainback, 11



       2
         “Marital property is all property titled in the names of both parties and all other property
acquired by each party during the marriage which is not separate property, i.e., property received
during the marriage by bequest, devise, descent, survivorship or gift from someone other than the
spouse.” Gilliam, 53 Va. App. at 482, 673 S.E.2d at 478 (citing Code § 20-107.3(A)(2)).
                                                 -3-
Va. App. 13, 17, 396 S.E.2d 686, 689 (1990)). Because husband did not provide any evidence to

rebut the statutory presumption, the circuit court erred in classifying the vehicles as husband’s

separate property. 3 Thus, we reverse that portion of the circuit court’s ruling.

                                 B. The West Virginia Residence

       Wife argues that the circuit court’s classification of the West Virginia residence as

husband’s separate property was plainly wrong and unsupported by the evidence. Wife contends

that husband’s “unclear, bare, [and] uncorroborated” testimony was not sufficient to rebut the

statutory presumption in favor of classifying the property as marital. However, contrary to

wife’s contention, the record contains far more to support the circuit court’s ruling than

husband’s testimony alone.

       In May of 1996, husband purchased approximately seventeen acres of land in West

Virginia for $135,000. A year later, in July of 1997, husband purchased an adjacent tract of land

for $48,500. Husband testified that he purchased both parcels of property with separate funds,

and the documentary evidence in the record corroborates husband’s testimony. Husband was

listed as the sole grantee on the deeds conveying each parcel of land. Furthermore, the “Real

Estate Sales Contract” for the first parcel of land listed husband as the sole purchaser of the

property. In addition, husband paid for the second parcel of land with a check drawn on an

account in his name only. Finally, wife’s own testimony supported husband’s account of the

acquisition of the West Virginia residence. Wife testified that the funds used to purchase the

West Virginia residence did not come from either her personal accounts or the joint account,

which the parties shared.




       3
          Moreover, during oral argument, husband conceded that it was error for the trial court to
classify the vehicles as his separate property.
                                                -4-
       Viewing the evidence in the light most favorable to husband, as we must, we hold that

husband produced sufficient evidence to rebut the presumption that the West Virginia residence

was marital property. Thus, the circuit court did not err in its classification of the West Virginia

residence as husband’s separate property, and we affirm that portion of the circuit court’s ruling.

              C. Game Bit, Inc., Game Place, LLC, and Robert A. Lightburn, LLC 4

       Wife argues that the circuit court erred in its classification of 100% of the shares of Game

Bit, Inc., the 100% membership interest in Game Place, LLC, and the 1% membership interest in

Robert A. Lightburn, LLC as husband’s separate property. Wife contends that husband’s

testimony alone is insufficient to rebut the statutory presumption in favor of classifying these

assets as marital property. Again, we disagree. “It is well established that the trier of fact

ascertains a witness’ credibility, determines the weight to be given to their testimony, and has the

discretion to accept or reject any of the witness’ testimony.” Street v. Street, 25 Va. App. 380,

387, 488 S.E.2d 665, 668 (1997) (en banc).

       In this case, the circuit court heard testimony from husband and wife concerning the

acquisition of each of the entities listed above. Husband testified that he formed Game Bit, Inc.

in 1996 and Game Place, LLC in 1997. Husband further testified that he contributed all of the

capital for the formation of these entities with his separate funds and that he was the sole

financial supporter of these businesses. In addition, wife testified that no money from her

personal account was used in the formation of Game Bit, Inc. or Game Place, LLC. Finally,

husband testified that he acquired the 1% interest in Robert A. Lightburn, LLC with a capital

contribution of approximately $23,000, also paid with his separate funds.




       4
          Because wife makes essentially the same argument with respect to the circuit court’s
classification of these entities, we will address them collectively.
                                                  -5-
        From this testimony, the circuit court found that husband’s separate wealth was the

source of the money used to acquire these entities. Moreover, the circuit court found that “the

bank documents, the tax returns, [and] the items that were introduced into evidence do

corroborate what [husband] had to say about where the money came from.” The circuit court

also found that husband’s separate wealth was the primary source of money for the parties during

their marriage, 5 a fact corroborated, to some degree, by wife’s testimony.

        “A trial court’s decision, when based upon an ore tenus hearing, is entitled to great

weight and will not be disturbed unless plainly wrong or without evidence to support it.”

Lanzalotti v. Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881, 882 (2003). That is because the

circuit court “‘has the opportunity to see and hear that evidence as it is presented.’” Thomas v.

Thomas, 40 Va. App. 639, 644, 580 S.E.2d 503, 505 (2003) (quoting Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)). Here the circuit court had

the opportunity to see and hear the testimony of both husband and wife. Consequently, the

circuit court had the discretion to accept or reject any portion of their testimony and to determine

what weight it should carry. Therefore, we cannot say that the circuit court’s decision to classify

100% of the shares of Game Bit, Inc., the 100% membership interest in Game Place, LLC, and

the 1% membership interest in Robert A. Lightburn, LLC was plainly wrong or without evidence

to support it, and we affirm that portion of the circuit court’s ruling. 6


        5
         At the time of the divorce, husband testified that he had a net worth of approximately
eight million dollars. However, the majority of husband’s wealth was derived from assets that he
acquired before the marriage or assets that he inherited from his parents during the marriage.
Husband testified that he always kept these assets separate and never commingled them with
marital property. Husband further testified that his separate wealth was the parties’ primary
source of income during their marriage.
        6
         Wife points to Taylor v. Taylor, 9 Va. App. 341, 387 S.E.2d 797 (1990), in support of
her contention that husband’s bare testimony is insufficient to rebut the marital presumption.
However, Taylor is readily distinguishable from the case at bar. The property at issue in Taylor
was 22,600 shares of stock that the husband acquired during the parties’ marriage. In Taylor, the
                                              -6-
                                        II. Spousal Support

       Wife also argues that the circuit court abused its discretion in awarding her only $3,000

per month in spousal support for a five-year period. Wife takes issue with both the amount and

duration of the circuit court’s award, arguing that there are no facts in the record to support such

a ruling. We disagree.

       “The trial court has ‘broad discretion’ in the decision to award spousal support.”

Robinson v. Robinson, 54 Va. App. 87, 91, 675 S.E.2d 873, 875 (2009) (quoting Fadness v.

Fadness, 52 Va. App. 833, 845, 667 S.E.2d 857, 863 (2008)). “That includes the ‘nature, amount

and duration’ of the award.” Id. (quoting Code § 20-107.1(E)). When determining an award of

spousal support, the circuit court “‘must consider all the factors enumerated in Code

§ 20-107.1(E).’” Fadness, 52 Va. App. at 846, 667 S.E.2d at 863 (quoting Miller v. Cox, 44

Va. App. 674, 679, 607 S.E.2d 126, 128 (2005)). In addition, the circuit court must “set forth

‘findings or conclusions identifying the [Code § 20-107.1(E)] factors . . . that support the spousal

support award.’” Robinson, 54 Va. App. at 91, 675 S.E.2d at 875 (quoting Robinson v.

Robinson, 50 Va. App. 189, 196, 648 S.E.2d 314, 317 (2007)). However, the circuit court is not

required to “‘quantify or elaborate exactly what weight or consideration it has given to each of

the statutory factors.’” Bruemmer v. Bruemmer, 46 Va. App. 205, 210, 616 S.E.2d 740, 742

(2005) (quoting Miller, 44 Va. App. at 679, 607 S.E.2d at 128). As long as the circuit court has



husband therein testified that he purchased the stock with funds he obtained through the sale of a
piece of real property that he acquired prior to the marriage. Id. at 343, 387 S.E.2d at 798. In
classifying the stock as the husband’s separate property, “[t]he trial court found the husband’s
testimony to be credible and accepted his statement that the funds used to purchase the [] stock
came from the sale of the [] property.” Id. at 344, 387 S.E.2d at 799. However, this Court
reversed the trial court, because the evidence in the record affirmatively demonstrated that the
property husband used to acquire the stock had been transmuted to marital property, thereby
making the stock itself marital in nature. Id. at 345, 387 S.E.2d at 799. In contrast to Taylor,
there is no evidence in the record before us to demonstrate that such a transmutation occurred in
this case. Thus, there was no evidence to contradict husband’s testimony that he acquired these
entities with property he maintained separate and apart from the marriage.
                                                 -7-
considered the factors enumerated in Code § 20-107.1(E), “‘its determination will not be

disturbed except for a clear abuse of discretion.’” Fadness, 52 Va. App. at 845, 675 S.E.2d at

875 (quoting Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998)). “Our

standard for establishing such error is a showing that the court’s exercise of its broad discretion

was ‘plainly wrong or without evidence to support it.’” Robinson, 54 Va. App. at 92, 675 S.E.2d

at 875 (quoting Northcutt v. Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)).

       In determining the amount of spousal support to award wife, the circuit court noted that it

“had taken into account all the factors set forth in [Code § 20-107.1(E)],” and “those [factors] not

specifically mentioned in [its] ruling were fully considered and applied.” The circuit court then

identified the specific factors that supported its spousal support award, including the needs of the

parties, the standard of living established during the marriage, the duration of the marriage,

husband’s negative non-monetary contributions, 7 and wife’s earning capacity. Of particular

significance to the circuit court was wife’s testimony concerning her financial needs and earning

capacity. The circuit court found that wife exaggerated many of her needs and that, as an

experienced teacher with a master’s degree, wife had an earning capacity that had to be

considered. 8 The court further found that the parties enjoyed a “modest” standard of living

during their eleven-year marriage.




       7
         In 2001, husband was convicted in the state of Illinois of intent to distribute child
pornography and sentenced to three years in prison. He was released after serving one year of
that sentence. During his incarceration, husband continued to support his family financially.
Nonetheless, the trial court found that husband’s felony conviction and subsequent incarceration
was a negative non-monetary contribution to the marriage.
       8
          Prior to the marriage, wife was an experienced teacher. Wife possessed a postgraduate
teacher’s license in Virginia, was tenured with the Albemarle County School System, and was a
clinical instructor at the University of Virginia. However, the circuit court did not impute a
specific amount of income to wife. Rather, it simply considered her earning capacity as an
experienced and educated teacher.
                                                 -8-
       After considering the evidence adduced at trial in terms of the statutory factors

enumerated in Code § 20-107.1(E), the circuit court ordered husband to pay wife $3,000 per

month in spousal support for a duration of five years. In addition, the circuit court ordered

husband to pay a lump sum spousal support payment of $140,000. Based on the evidence in the

record, we cannot say that the circuit court abused its discretion in fashioning its spousal support

award to wife. Thus, we affirm on this issue.

                                       III. Attorney’s Fees

       Wife further argues that the circuit court abused its discretion in awarding her only

$25,000 in attorney’s fees. Wife claims that the facts in the record do not support such an award.

Again, we disagree.

       The decision of whether or not to award attorney’s fees “is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion.”

Northcutt, 39 Va. App. at 199-200, 571 S.E.2d at 916. “‘The key to a proper award of counsel

fees is reasonableness under all the circumstances.’” Id. at 200, 571 S.E.2d at 916 (quoting

Joynes v. Payne, 36 Va. App. 401, 429, 551 S.E.2d 10, 24 (2001)).

       Wife incurred approximately $90,000 in attorney’s fees from this litigation. However,

during the pendente lite hearing, the circuit court awarded wife $20,000 in attorney’s fees. Later,

in deciding whether to award wife attorney’s fees in the final decree of divorce, the circuit court

considered such factors as the evidence in the case, the income levels of the parties, the

complexity of the case, and its previous rulings in the case. After consideration of those factors,

the circuit court ordered husband to pay an additional $25,000 in attorney’s fees to wife, finding

such an award appropriate given the length of the trial and the amount of discovery that was

required in the case. Combined with the pendente lite award, wife received a total of $45,000 in

attorney’s fees from husband. Therefore, we hold that the circuit court’s decision to award wife

                                                -9-
$25,000 in attorney’s fees in the final decree of divorce was reasonable under the circumstances,

and the circuit court did not abuse its discretion in fashioning such an award.

                             IV. Appellate Attorney’s Fees and Costs

       Both husband and wife request an award of attorney’s fees and costs they incurred in this

appeal. It is true that “[t]he appellate court has the opportunity to view the record in its entirety

and determine whether the appeal is frivolous or whether other reasons exist for requiring

additional payment.” O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100

(1996). However, after examining the record, we find no reason to fashion such an award in this

case. “[T]he litigation addressed appropriate and substantial issues and [] neither party generated

unnecessary delay or expense in pursuit of its interests.” Estate of Hackler v. Hackler, 44

Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). Accordingly, we deny each party’s request for an

award of appellate attorney’s fees and costs.

                                           V. Conclusion

       For the foregoing reasons, we hold that the circuit court erred in ruling that the vehicles

were husband’s separate property. Thus, we reverse that portion of the circuit court’s ruling and

remand this case back to the circuit court for further proceedings consistent with this opinion.

However, we affirm the circuit court with respect to its classification of the West Virginia

residence, 100% of the shares of Game Bit, Inc., the 100% membership interest in Game Place,

LLC, and the 1% interest in Robert A. Lightburn, LLC as husband’s separate property. In

addition, we affirm the circuit court with respect to its rulings on spousal support and attorney’s

fees. Finally, we deny both parties’ requests for appellate attorney’s fees and costs.

                                                                                     Affirmed in part,
                                                                                     reversed in part,
                                                                                     and remanded.




                                                - 10 -
