                   COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia

RONALD W. TSCHIPPERT

v.       Record No. 2096-94-4             MEMORANDUM OPINION * BY
                                       JUDGE JOHANNA L. FITZPATRICK
ELIZABETH M. TSCHIPPERT                        JUNE 13, 1995


             FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                      Thomas D. Horne, Judge

     Ronald W. Tschippert, pro se.
     Carl P. Horton for appellee.


     In this domestic appeal, Ronald W. Tschippert (husband)

argues that the trial court erred in:    (1) failing to give

husband credit for funds withdrawn by Elizabeth M. Tschippert

(wife) from a joint checking account; (2) classifying 1000 shares

of Tandem Computers stock and a 1985 Oldsmobile as entirely

marital property; (3) using earlier valuation dates than the date

of hearing in determining the value of three assets; (4) failing

to award husband attorney's fees for discovery abuses committed

by wife; and (5) awarding a $25,000 monetary award to wife.      We

reverse the trial court on:     (1) its treatment of the funds from

the joint checking account, and (2) its valuation of wife's

401(k) investment account.    We remand for the trial court to

consider husband's tracing evidence as to the checking account

funds and to reconsider the 401(k) account's value and the

equitable distribution award.    We affirm on all other issues.
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
                             BACKGROUND

     The parties were married on July 24, 1982 and separated on

August 1, 1991.    Wife filed for divorce on August 21, 1992 based

on separation for more than one year pursuant to Code

§ 20-91(9)(a).    The trial court held two hearings, conducted

several conference calls, and examined numerous documents in

determining the equitable distribution of the parties' property.

In a June 22, 1994 letter opinion, the trial judge awarded wife

a divorce, listed the distribution and classification of the

parties' property, and denied both parties' requests for

attorney's fees.   The final decree of divorce was entered on

September 26, 1994 and incorporated the letter opinion and its

findings.
               CREDIT FOR JOINT CHECKING ACCOUNT FUNDS

     Husband argues that the trial court erred in failing to give

him credit for $11,472.87 withdrawn from a joint checking account

by wife after the date of separation and that, even if the trial

court properly found the funds to be marital, the court erred in

failing to find that wife committed waste.

     After the parties separated, husband continued to deposit

his paychecks into the parties' Chevy Chase joint checking

account.    On September 30, 1993, more than two years after the

date of separation, wife withdrew $11,472.87 from the account.

At the equitable distribution hearing, husband argued that the

trial court was required to trace the funds back to his paycheck




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deposits and that the funds deposited were his separate property.
          [T]he Court declared that the $11,472.87 was
          not husband's separate funds. Counsel for
          husband objected on the grounds that tracing
          evidence was accepted by the Court for all
          other funds which were moved through that
          account. The Court overruled the objection
          citing Va. Code § 6.1-125.3 as controlling.
          . . . The Court thus concluded that inasmuch
          as wife was entitled to half of the funds in
          the subject account, the funds that she
          withdrew were not includable in the
          distribution of assets. 1


Wife did not explain her use of the funds at the hearing.
     Code § 6.1-125.3 provides, in pertinent part, that "a joint

account between persons married to each other shall belong to

them equally, . . . unless . . . there is clear and convincing

evidence of a different intent."       This Code section is "relevant

only to controversies between [the parties] and their creditors

and other successors."   Code § 6.1-125.2.     We hold that the trial

court erred in using Code § 6.1-125.3, a banking statute relevant

to controversies between the account holders and their creditors,

to determine the status of the funds in the account for equitable

distribution purposes.

     Code § 20-107.3(A)(3)(d), which allows for retracing of

separate contributions to marital property, is the applicable

Code section:
               d. 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
     1
      The record in this case was an agreed statement of facts.




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          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.


(Emphasis added).   This Court held in Dietz v. Dietz, 17 Va. App.

203, 436 S.E.2d 463 (1993), that a husband's post-separation

wages are his separate property unless proved to be marital.     Id.

at 211-12, 436 S.E.2d at 468-69 (involving a husband's post-

separation wages deposited into the husband's separate checking

account and used to buy personal property).
     Thus, under Dietz and Code § 20-107.3(A)(3)(d), the funds

deposited by husband became marital property.    Because the trial

judge relied on Code § 6.1-125.3, he did not adequately consider

husband's tracing evidence concerning the funds in the joint

checking account.
                    CLASSIFICATION OF PROPERTY

     Husband next argues that the trial court erred in

classifying 1000 shares of Tandem Computers stock and his 1985

Oldsmobile as entirely marital property.

     Husband bought the 1000 shares of Tandem stock on July 26,

1993, almost two years after the date of separation.   In

purchasing the stock, he used $9,950.04 from a joint checking

account into which his post-separation wages had been deposited.

 Husband argues that the trial court should have accepted his

tracing documentation and found that the stock was his separate



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property.

     The 1985 Oldsmobile was purchased during the marriage, but

husband argues that it was part marital and part separate

property because he used a combination of marital funds and his

separate property in the form of a cash down payment and trade-in

allowance to buy the car.   Thus, the trial court should have

traced his separate contributions pursuant to Code

§ 20-107.3(A)(3)(d).
     "In reviewing an equitable distribution award on appeal, we

recognize that the trial court's job is a difficult one.

Accordingly, we rely heavily on the discretion of the trial judge

in weighing the many considerations and circumstances that are

presented in each case."    Artis v. Artis, 4 Va. App. 132, 137,

354 S.E.2d 812, 815 (1987).   As stated above, Code

§ 20-107.3(A)(3)(d) provides that separate property contributed

to marital property shall retain its separate character only "to

the extent the contributed property is retraceable by a

preponderance of the evidence."   In this case, the trial judge

gave ample consideration to husband's tracing documentation

concerning both the Tandem stock and the Oldsmobile and did not

find it persuasive.    Thus, the trial court did not abuse its

discretion in classifying the stock and automobile as marital.
                        VALUATION OF PROPERTY

     Husband also argues that the trial court erred in failing to

use the date of hearing as the valuation date for three pieces of



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property.

     The items of property at issue are:    (1) wife's 401(k)

Merrill Lynch investment plan, which the court valued at $45,784

as of June 30, 1991; (2) wife's Monumental Life insurance policy,

which the court valued at $17,394 as of May 20, 1993; and (3)

wife's Scudder Trust IRA, which the court valued at $13,686 as of

June 30, 1993.

     Code § 20-107.3(A) provides as follows:
          The court shall determine the value of any
          such property as of the date of the
          evidentiary hearing on the evaluation issue.
           Upon motion of either party made no less
          than twenty-one days before the evidentiary
          hearing the court may, for good cause shown,
          in order to attain the ends of justice, order
          that a different valuation date be used.

"The trial judge in evaluating marital property should select a

valuation 'that will provide the court with the most current and

accurate information available which avoids inequitable

results.'"   Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788,

790-91 (1991) (quoting Mitchell v. Mitchell, 4 Va. App. 113, 118,

355 S.E.2d 18, 21 (1987)).   "The burden [is] on the parties to

provide the trial court with sufficient evidence as to the most

appropriate valuation date . . . ."    Gottlieb v. Gottlieb, 19 Va.

App. 77, 87, 448 S.E.2d 666, 672 (1994).

     In this case, the trial court used the only valuations

presented by husband and wife in evaluating the Monumental Life

policy and the Scudder Trust IRA.    The trial judge gave the

parties the opportunity to revise their property distribution



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schedules after the initial equitable distribution hearing, and

the parties did not present any more current evidence regarding

the value of these two items.    Thus, the judge did not abuse his

discretion in using the values presented and in declining to

accept husband's extrapolations of later values.

     However, husband offered two more recent values of wife's

401(k) investment account--$47,717.89 on September 30, 1991 and

$70,685.49 on September 30, 1993.      By failing to use the most

current information available, the trial judge erred in his

valuation of the 401(k) account.
                          ATTORNEY'S FEES

     Lastly, husband argues that the trial court abused its

discretion in failing to award him attorney's fees.

     Husband argues that he is entitled to $5,397.50 for

attorney's fees attributable to wife's lack of response to

discovery requests.   It is well settled that "[a]n award of

attorney fees is discretionary with the court after considering

the circumstances and equities of the entire case and is

reviewable only for an abuse of discretion."      Gamer v. Gamer, 16

Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).     The record in

this case shows no abuse of discretion.     The judge made no

finding that wife had abused the discovery process and never

sanctioned wife for any abuse.

     The decision of the trial court is affirmed as to all issues

except the classification of the funds from the joint checking




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account and the valuation of wife's 401(k) account.   Accordingly,

we remand for reconsideration of husband's tracing evidence

concerning the funds in the checking account and for revaluation

of the 401(k) account.   On remand, the trial judge should also



reconsider the monetary award in light of his decisions regarding

the checking account funds and the 401(k) account.
                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




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