                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Senior Judge Willis


CATHERINE BUDZYN, F/K/A
 CATHERINE JOHNSON,
                                                                 MEMORANDUM OPINION *
v.     Record No. 2700-07-1                                          PER CURIAM
                                                                     JUNE 24, 2008
GARY JOHNSON


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                  Jerome James, Judge

                 (Leonard D. Levine; Childress, Flax, Levine, on briefs), for
                 appellant.

                 (Darrell M. Harding; Dannielle C. Hall-McIvor; Law Office of
                 Darrell Harding; Kaufman & Canoles, on brief), for appellee.


       Catherine Budzyn, f/k/a Catherine Johnson (wife) appeals the trial court’s determination that

certain real estate was marital property and its award of a share of the proceeds from the sale of such

real estate to her former spouse, Gary Johnson (husband). Upon reviewing the record and briefs of

the parties, we conclude this appeal is without merit. Accordingly, we summarily affirm the

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

                                             Background

       The parties married on May 16, 1997. The property in dispute, located at 1214 Pineview

Avenue in Norfolk, Virginia, was acquired by wife on March 29, 2002 and titled solely in her name.

Prior to the parties’ marriage, wife owned real estate in her maiden name on Kalmia Avenue and

Futura Avenue in Richmond, Virginia. The parties agree that husband performed substantial

renovation work on both of the Richmond properties. The parties rented the Futura property and

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
moved to the Kalmia property prior to their marriage. With respect to both the Futura and Kalmia

properties, husband also made an unspecified number of mortgage payments.

        Following the execution of a property settlement agreement, the parties separated on May

14, 1999. During the separation, wife sold the Kalmia property, but acknowledged any profit

realized from the sale was “minimal.”1 In October 1999, wife purchased property on Tanglewood

Drive in West Virginia at a foreclosure sale. Wife made a $1,000 down payment and titled the

Tanglewood property solely in her name.

        Following wife’s move to West Virginia, husband visited her and performed repairs on the

Tanglewood property. Husband stayed overnight at the Tanglewood property and resumed sexual

relations with wife. Husband resided in Georgia while wife was in West Virginia, but returned to

Virginia in late 2001 or early 2002 to the Futura property. Husband moved into the Futura property

because the tenants had “tor[n] up the house,” and it needed repairs in preparation for its sale.

During this time, wife drove to Richmond from West Virginia and spent the weekends with

husband while they looked for a new home in Norfolk. By this time, the parties had decided to

reconcile.

        As with the Tanglewood property, wife purchased the Pineview property in foreclosure.

The Tanglewood property sale yielded a profit of $20,000, and wife used $8,400 of this amount to

purchase the Pineview property for $84,000. Wife’s name alone appeared on the title and the

mortgage note.

        Wife closed on the Pineview property purchase in late March 2002. Husband moved in

prior to wife and began making repairs. Husband replaced the bathroom floor and bathroom

fixtures, upgraded the electrical system, and replaced wiring, light fixtures, and ceiling fans. He


        1
         Wife testified she had no settlement statement for the sale of the Kalmia property.
When asked if the sale yielded a profit, she stated, “I would not think so. If so, very minimal. A
couple thousand maybe.”
                                                -2-
refinished the floors and performed miscellaneous painting on the interior and exterior, as well as

the storage shed. In addition, husband cleaned the air conditioner, air handler, ductwork, and the

drain from the house to the street. He also reseeded the yard, trimmed tree limbs, and installed

gutter guards. As with wife’s previous properties, husband also contributed to the mortgage.

Husband produced checks reflecting a total of $30,528.68 in mortgage payments. These payments

accounted for all but six of the mortgage payments on the property.

       On June 7, 2006, husband filed for divorce. On August 21, 2006, wife sold the Pineview

property for $181,000. The net gain from the sale was $94,224.42. Pursuant to court order, wife

placed approximately one-half of the proceeds, $47,125.49, in escrow pending the trial court’s

determination of husband’s share.

       The trial court determined the Pineview property was marital property and awarded husband

the escrowed funds. The trial court ruled that the Pineview property was marital property because it

had not been “maintained” as separate property, reasoning as follows:

                      This property has never been maintained as separate
               property. . . . It was originally purchased to allow the parties to live
               together as husband and wife after they decided to reconcile, and
               as usual[,] it was deeded and titled solely in the name of the
               defendant, Catherine Johnson.

                      All conduct subsequent to the parties’ decision to make the
               Pineview property the marital home point to the parties living
               together just like they did prior to the separation, i.e., the defendant
               buys the property in her name and the complainant makes
               substantial repairs. Nothing really has changed.

                        It is very difficult and awkward for the court to believe the
               defendant’s argument that the property is her separate property
               simply because, quote, she made the down payment and had it
               titled in her name, end of quote.

                       The blatant inequity in this argument . . . is illustrated by
               the following: Complainant, Gary Johnson, actually put more
               money into the property than the defendant, Catherine Johnson,
               did. In other words, she put the $8,000 down payment into the
               property; and as stated earlier, he paid $30,528.68. The court can

                                                -3-
               only come to the conclusion from this graphic evidence that you
               obviously don’t intend property to be separate if you don’t at a
               minimum pay the mortgage on the property during the marriage
               from separate funds . . . .

                          *       *       *       *       *       *       *

                        So, in conclusion, regardless of whether the court makes a
               determination that the Tanglewood [sic] property was purchased
               with separate funds, if the court makes that determination, in order
               for – or since the Tanglewood [sic] property was purchased prior
               to the final separation and during the marriage, in order for it to
               maintain its separate identity, then it would have to be maintained
               as separate property. There is no evidence to support that.

                          *       *       *       *       *       *       *

               So both roads, regardless of which you take . . . will lead you to the
               same legal equitable distribution designation, and that designation
               or conclusion is that the Pineview property is subject to equitable
               distribution. It was not maintained as separate property.

                        The complainant, Gary Johnson, is entitled to his marital
               share . . . .

                                              Analysis

       The classification of property is a question of fact, and the trial court’s ruling will not be

disturbed on appeal unless plainly wrong or without evidence to support it. Ranney v. Ranney,

45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005). “‘[I]n reviewing an equitable distribution

award, we rely heavily on the trial judge’s discretion in weighing the particular circumstances of

each case. Only under exceptional circumstances will we interfere with the exercise of the trial

judge’s discretion.’” Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644 (1992)

(quoting Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 (1988)).

       “Property acquired during the marriage is presumptively marital property, unless shown

to be separate property.” Ranney, 45 Va. App. at 33, 608 S.E.2d at 492. “The 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).

                                                -4-
       While wife acknowledges that property acquired during the marriage is presumptively

marital, she contends she rebutted this presumption by proving that the Pineview property was

“acquired” with separate property, i.e., the sale of the Tanglewood property. She cites

Code § 20-107.3(A)(1), which provides that “separate property” includes “all property acquired

during the marriage in exchange for or from the proceeds of sale of separate property, provided

that such property acquired during the marriage is maintained as separate property,” and “that

part of any property classified as separate pursuant to subdivision A 3.”

       “Property which is initially separate may become marital property either by express

agreement, or by the manner in which it is maintained.” McDavid v. McDavid, 19 Va. App. 406,

410-11, 451 S.E.2d 713, 716 (1994) (citations omitted). “Great consideration should be given to

the actions, or non-action, of the parties with regard to exercising control over the property in

question.” Stainback v. Stainback, 11 Va. App. 13, 21, 396 S.E.2d 686, 691 (1990). “[W]hen

evidence of intent to relinquish all present and future dominion over the property so as to remove

it from the marital estate is lacking, the presumption of Code § 20-107.3(A)(2) that property

acquired by either spouse during a marriage is marital remains unrebutted.” Kelln v. Kelln, 30

Va. App. 113, 124, 515 S.E.2d 789, 794 (1999) (citations omitted).

       As the trial court noted in its findings, the evidence established that the Pineview

property was purchased to be the parties’ marital home, that husband made substantial

improvements to the property, and that he contributed all but six of the mortgage payments.

       As the trial court’s decision was not based upon whether the appreciated value of the

Pineview property was attributable to husband’s efforts, but rather, whether the property was

“maintained” as separate property, the cases cited by wife regarding the increased value of

separate property are inapposite. See Wiese v. Wiese, 46 Va. App. 399, 617 S.E.2d 427 (2005);




                                                -5-
Hart v. Hart, 35 Va. App. 221, 544 S.E.2d 366 (2001); Moran v. Moran, 29 Va. App. 408, 512

S.E.2d 834 (1999); Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450 (1998).

       Based upon this record, we cannot say the trial court’s finding that the Pineview

residence was maintained as marital property was plainly wrong. The property was purchased as

the couple’s marital home during the marriage, and husband made “substantial” repairs to the

property as well as contributing over $30,000 in mortgage payments.

       Accordingly, the judgment of the trial court is summarily affirmed.

                                                                                  Affirmed.




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