                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and AtLee
              Argued at Richmond, Virginia
UNPUBLISHED




              DIANE K. GASPA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1019-17-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                 MARCH 13, 2018
              THOMAS P. GASPA


                                 FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                              Cheryl V. Higgins, Judge

                               Jason P. Seiden (Michie Hamlett Lowry Rasmussen & Tweel
                               PLLC, on briefs), for appellant.

                               Lair D. Haugh (Haugh & Haugh, P.C., on brief), for appellee.


                     Diane Gaspa (“wife”1) appeals an equitable distribution award from the Circuit Court of

              Albemarle County. She argues that the circuit court committed reversible error when it

              considered “inadmissible hearsay evidence” of the value of her retirement accounts and awarded

              Thomas Gaspa (“husband”) a portion of those accounts. We affirm.

                                                        I. BACKGROUND

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

              party below, and grant him ‘all reasonable inferences fairly deducible therefrom.’” Bajgain v.

              Bajgain, 64 Va. App. 439, 443, 769 S.E.2d 267, 269 (2015) (quoting Anderson v. Anderson, 29

              Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)). At an evidentiary hearing related to the




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       We use the designations “wife” and “husband” for clarity, recognizing that such terms
              actually describe the parties’ former, rather than current, legal relationship.
equitable distribution of the parties’ assets, the circuit court was called upon to value wife’s

retirement accounts. The alleged error concerns the following portion of the trial transcript:

               [Husband’s Attorney:]           And you are still employed by the
                                               University of Virginia; is that
                                               correct?

               [Wife:]                         Yes.

               [Husband’s Attorney:]           And the entire time you’ve been
                                               employed since you returned to
                                               Charlottesville at the University of
                                               Virginia you’ve been married; is that
                                               correct?

               [Wife:]                         Yes.

               [Husband’s Attorney:]           And you have various retirement
                                               accounts through the University of
                                               Virginia, do you not?

               [Wife:]                         Yes.

               [Husband’s Attorney:]           You have previously produced this
                                               retirement plan breakdown dated
                                               October 1st, 2015?

               [Wife:]                         Yes.

               [Husband’s Attorney:]           I’d move this into evidence.

               [Wife’s Attorney]:              Object to hearsay.

                                               ....

               THE COURT:                      [Counsel], then how else would these
                                               documents be admitted? She
                                               admitted it is her retirement account;
                                               correct?

               [Wife’s Attorney]:              Yes, ma’am.

               THE COURT:                      So what is the basis for the hearsay?

               [Wife’s Attorney]:              Just because they’re your statements
                                               doesn’t make them admissible, Your
                                               Honor, with all due respect. I could
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                             present my bank records, credit
                             cards. Just because they’re sent to
                             me doesn’t get around the hearsay
                             objection.

THE COURT:                   So I’m going to overrule the hearsay
                             objection. I agree, except that these
                             are documents in her name as
                             opposed to somebody else’s
                             documents. So I find there is a
                             different basis for her to verify the
                             accuracy. So the [c]ourt is going to
                             admit them as Defense Exhibit No.
                             2.

([Husband]’s Exhibit No. 2 received into evidence.)

[Wife’s Attorney]:           Yes, ma’am.

THE COURT:                   And your exception is noted,
                             [Counsel].

[Wife’s Attorney]:           I may have some rebuttal on just this
                             issue because it’s now applicable
                             because I wasn’t expecting you to
                             overrule the objection.

THE COURT:                   I completely agree.

[Husband’s Attorney:]        These documents actually show that
                             they are three different types of
                             product that are involved in your
                             retirement account; is that correct?

[Wife:]                      Yes.

[Husband’s Attorney:]        This would be the earning up to
                             October—[o]r it’s the statement
                             dated October 1st, 2015?

[Wife:]                      Yes.

[Husband’s Attorney:]        And you all separated in November
                             of 2015?

[Wife:]                      Yes.



                               -3-
The circuit court used Exhibit 2 to value wife’s retirement accounts, and awarded husband a

portion of those accounts. On appeal, wife claims that “[h]aving no admissible evidence of

value, the [circuit] court could not distribute the asset[s].”

                                             II. ANALYSIS

        We review the circuit court’s decision for abuse of discretion. Robinette v. Robinette, 10

Va. App. 480, 486, 393 S.E.2d 629, 633 (1990) (equitable distribution awards reviewed for

abuse of discretion); Davis v. Commonwealth, 65 Va. App. 485, 499, 778 S.E.2d 557, 564

(2015) (decisions concerning the admissibility of evidence are reviewed for abuse of discretion).

“Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.”

Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015) (quoting Grattan v.

Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). Furthermore, “[a] party relying

upon an exception to the hearsay rule for the admissibility of evidence bears the burden of

persuading the court that the evidence falls within the exception” and “the standard of proof to

meet that burden is by a preponderance of the evidence.” Lynch v. Commonwealth, 272 Va.

204, 207-08, 630 S.E.2d 482, 484 (2006). Finally,

                 Factual questions must usually be resolved to determine whether
                 the proponent of the evidence has carried that burden, and those
                 antecedent or predicate facts are to be determined by the trial court
                 alone. If the court admits the evidence, the credibility of the
                 witnesses and the weight of the evidence are to be determined by
                 the jury.

Id. at 208, 630 S.E.2d at 484. Although the circuit court never used the phrase “adoptive

admission,” the words the circuit court used show that it was the basis upon which the exhibit

was admitted. We hold that the circuit court did not abuse its discretion in admitting the exhibit

on that basis.

        The Rules of Evidence define hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
                                                  -4-
matter asserted.” Va. R. Evid. 2:801(c). A “statement” can be “an oral or written assertion.”

Va. R. Evid. 2:801(a). Rule 2:802 states the general rule governing the use of hearsay: “Hearsay

is not admissible except as provided by these Rules, other Rules of the Supreme Court of

Virginia, or by Virginia statutes or case law.”

       Rule 2:803(0)(B) sets out the concept of “adoptive admissions,” and states, in relevant

part, that the hearsay rule does not exclude a “statement offered against a party that is . . . a

statement of which the party has manifested adoption or belief in its truth.”

               It is well settled that statements made in the presence and hearing
               of another, to which he does not reply, are admissible against him
               as tacit admissions of their truth or accuracy, when such statements
               are made under circumstances naturally calling for reply if their
               truth is not intended to be admitted. This principle rests upon that
               universal rule of human conduct which prompts one to repel an
               unfounded imputation or claim.

Tillman v. Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773 (1946). “The test for an adoptive

admission ‘is whether [persons] similarly situated would have felt themselves called upon to

deny the statements affecting them in the event they did not intend to express acquiescence by

their failure to do so.’” Weinbender v. Commonwealth, 12 Va. App. 323, 325, 398 S.E.2d 106,

107 (1990) (alteration in original) (quoting Owens v. Commonwealth, 186 Va. 689, 699, 43

S.E.2d 895, 899 (1947)); see also Wooten v. Bank of Am., N.A., 290 Va. 306, 311 n.5, 777

S.E.2d 848, 851 n.5 (2015) (“[A] duty to speak arises . . . in some situations[] to avoid the

conclusion that a party has made an adoptive admission, see Rule 2:803(0)(B).”); Charles E.

Friend & Kent Sinclair, The Law of Evidence in Virginia § 15-36[b], at 1097 (7th ed. 2012) (“A

declaration in the presence of a party to a cause becomes evidence, as showing that the party, on

hearing such a statement, did not deny its truth; for, if he is silent when he ought to have denied,

there is a presumption of his acquiescence.” (quoting Sanders v. Newsome, 179 Va. 582, 592, 19

S.E.2d 883, 887 (1942))).

                                                  -5-
        In Lynch, the Supreme Court observed that, although “[m]ost of the adoptive admissions

that we have considered have been characterized as tacit admissions, or admissions by silence,”

one “may manifest adoption of a statement made by another in any number of ways, including

words, conduct, or silence.” 272 Va. at 209, 630 S.E.2d at 484-85. “In some cases, the

defendant’s words or conduct may supply most, if not all, of the predicate facts that the

Commonwealth must prove to bring the evidence within the adoptive admission exception.” Id.

at 209, 630 S.E.2d at 485.

        Here, wife’s responses to the questions from husband’s attorney, taken in the light most

favorable to husband, “manifested . . . [her] belief in . . . [the] truth” of the exhibit.

Va. R. Evid. 2:803(0)(B). Wife agreed she had UVA retirement accounts, responding “Yes”

when husband’s attorney asked whether she had “various retirement accounts through the

University of Virginia.” Wife also agreed that she produced in her discovery responses the

document summarizing these retirement accounts. Finally, she agreed that the statement

summarizing the retirement accounts, which husband’s attorney showed to wife as she was

testifying, was dated October 1, 2015—just before the parties’ separation. All of these answers

by wife support the conclusion that the exhibit constituted an adoptive admission.

        “[T]he abuse of discretion standard requires a reviewing court to show enough deference

to a primary decisionmaker’s judgment that the court does not reverse merely because it would

have come to a different result in the first instance.” Lawlor v. Commonwealth, 285 Va. 187,

212, 738 S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514

F.3d 315, 322 (4th Cir. 2008)). With this deference in mind, we cannot find that the circuit court

abused its discretion here.




                                                  -6-
                                        III. CONCLUSION

       Because the circuit court did not abuse its discretion when it admitted Exhibit 2 into

evidence, we affirm its decision.

                                                                                        Affirmed.




                                               -7-
