                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


LOIS A. APELT
                                                 MEMORANDUM OPINION *
v.   Record No. 0081-97-1                            PER CURIAM
                                                  SEPTEMBER 9, 1997
EGON R. APELT


            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    Everett A. Martin, Jr., Judge

            (Andrew R. Sebok, on brief), for appellant.
            (Halbert T. Dail, on brief), for appellee.



     Lois Apelt (wife) appeals the decision of the circuit court

granting Egon Apelt (husband) a divorce and deciding other

issues.    Wife argues that the trial court erred by (1) awarding

husband a divorce on the grounds of cruelty and desertion,

(2) failing to classify all property titled in both parties'

names or in their joint names as marital property, and (3)

failing to divide the marital estate equally between the parties.

 Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit.   Accordingly, we summarily

affirm the decision of the trial court.   Rule 5A:27.

     The evidence was received by a commissioner in chancery.

The commissioner's report
          should be sustained unless the trial court
          concludes that the commissioner's findings
          are not supported by the evidence. This rule
          applies with particular force to a
          commissioner's findings of fact based upon
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
          evidence taken in his presence, but is not
          applicable to pure conclusions of law
          contained in the report. . . . [W]here the
          chancellor has disapproved the commissioner's
          findings, this Court must review the evidence
          and ascertain whether, under a correct
          application of the law, the evidence supports
          the findings of the commissioner or the
          conclusions of the trial court. Even where
          the commissioner's findings of fact have been
          disapproved, an appellate court must give due
          regard to the commissioner's ability, not
          shared by the chancellor, to see, hear, and
          evaluate the witnesses at first hand.


Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)

(citations omitted).
                                I.

     The commissioner found sufficient evidence to award husband

a divorce on the grounds of cruelty and desertion.   "It would

appear to your Commissioner from the course of conduct of [wife]

that her interest in [husband] during the marriage was limited to

her access to his property, money and accounts, and that she made

his life intolerable when [husband] resisted her efforts to spend

his resources."   The trial court confirmed the commissioner's

report on the grounds for divorce, and evidence in the record

before us fully substantiates the commissioner's conclusion that

wife was guilty of cruelty and desertion.

                                II.

     Wife contends that the trial court erred when it failed to

find that all property jointly titled was marital property.

While the commissioner found that the marital residence and stock

owned by husband prior to the marriage had been transmuted into


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marital assets, the trial court found no evidence of donative

intent and overruled the commissioner's finding.    Our review of

the record demonstrates that the trial court properly applied the

law to the evidence before it.

     "[W]hether the property is separate or marital is determined

by the statutory definition and is not determined by legal

title."     Garland v. Garland, 12 Va. App. 192, 195, 403 S.E.2d 4,

6 (1991).    Under Virginia's equitable distribution statute,
            [w]hen separate property is retitled in the
            joint names of the parties, the retitled
            property shall be deemed transmuted to
            marital property. However, to the extent the
            property is retraceable by a preponderance of
            the evidence and was not a gift, the retitled
            property shall retain its original
            classification.

Code § 20-107.3(A)(3)(f).    The statute further provides that

"[n]o presumption of gift shall arise under this section where

. . . existing property is conveyed or retitled into joint

ownership." Code § 20-107.3(A)(3)(g).
          Virginia does not presume a gift simply by
          virtue of jointly titling or retitling
          property. A party claiming entitlement to
          rights and equities in marital property by
          virtue of an interspousal gift must prove the
          donative intent of the donor spouse and the
          nature and extent of the donor's intention.

Lightburn v. Lightburn, 22 Va. App. 612, 616-17, 472 S.E.2d 281,

283 (1996) (citation omitted).     See also Theismann v. Theismann,

22 Va. App. 557, 565, 471 S.E.2d 809, 813 (1996).    As the party

seeking to prove a gift, wife bore the burden of proving "every

fact and circumstance necessary to constitute a valid gift by



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clear and convincing evidence."         Rust v. Phillips, 208 Va. 573,

578, 159 S.E.2d 628, 631 (1968).

     The trial court found that wife presented no evidence of

donative intent and that, upon reviewing the evidence, the record

did not prove husband intended to make a gift to wife of the

property.    While husband nullified the parties' pre-nuptial

agreement, against the advice of counsel, and with the recitation

that it was done in consideration for the parties' love for each

other, the record reflects that husband sought to obtain peace

from wife's badgering.   Wife awakened husband at night;

stockpiled goods in her room; accused husband of poisoning his

previous wife, who died from cancer; and accused husband of

feeding her ground glass.   Husband testified that wife's repeated

demands to change his will and revoke the pre-nuptial agreement

were "very nerve wracking" and he eventually made the changes

wife wanted in the unsuccessful hope that it would resolve the

conflicts.   Husband lost weight.       His son testified husband grew

"haggard and worn."
     Based upon our review of the evidence, we cannot say that

the trial court erred in determining that husband's revocation of

the pre-nuptial agreement and titling the marital residence in

both names did not indicate a donative intent on his part and

that wife failed to carry her burden to prove a gift.        Therefore,

we find no error in the trial court's classification of these

assets.



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                               III.

     Wife contends that the trial court erred by failing to

equally divide the parties' property.      As discussed above, the

court classified the stocks and marital residence as husband's

separate property.   Only minor additional assets remained for

distribution.   Moreover, Virginia's equitable distribution scheme

does not provide "a statutory presumption of equal distribution."

 Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830

(1986).
     The parties were married for approximately two years.

Husband had no debts prior to the marriage.      Marital debts

totaled over $17,000 as of the date of the commissioner's

hearing.   Wife spent $60,000 during the marriage.     Husband's son

testified that wife's room was stacked with her purchases,

including furniture, carpets, an entertainment system, a

big-screen television, VCR, compact disc player, tape players,

record players, and boxes of other items.      Wife repeatedly

threatened to leave husband with no money.      Wife admitted

charging $6,000 on husband's Sears credit card without his

consent.

     Based on this evidence, the trial court assigned eighty-five

percent of the marital debt to wife.      We cannot say that the

court's equitable distribution decision was plainly wrong or

without evidence to support it.       See Srinivasan v. Srinivasan, 10

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



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     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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