                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia


JOHN ZALUSKY
                                            MEMORANDUM OPINION * BY
v.   Record No. 0199-02-4                    JUDGE LARRY G. ELDER
                                               NOVEMBER 19, 2002
DONNA ZALUSKY


               FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     Benjamin N. A. Kendrick, Judge

           Mary M. Benzinger (Raymond B. Benzinger;
           Benzinger & Benzinger, P.C., on briefs), for
           appellant.

           Susan M. Butler (Margolius, Mallios, Davis,
           Rider & Tomar, L.L.P., on brief), for
           appellee.


     John Zalusky (husband) appeals from a final decree of

divorce classifying, valuing, and equitably distributing

property owned by him and his former spouse, Donna Zalusky

(wife).   On appeal, he contends the trial court (1) erroneously

classified various assets, (2) erroneously calculated the value

of the marital residence and (3) erroneously refused to allow

him a credit for his post-separation expenditures for the

marital residence.     Both parties seek attorney's fees and costs

incurred on appeal.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     We hold the trial court failed expressly to classify a

patent and its proceeds and may have applied an incorrect legal

standard in holding that "no award shall be given to [husband]"

from the proceeds of the patent's sale.   Also, the court erred

in holding wife succeeded in retracing her entire separate

contribution to the Wheat First account and in calculating the

earnings thereon.

     Further, it erred in classifying as marital property

husband's pickup truck and Charles Schwab brokerage account and

in granting wife a credit for sums husband was allowed to

withdraw from the brokerage account during the pendency of these

proceedings.   Finally, husband failed to preserve for appeal his

argument that no evidence supported the finding that expenses

for selling the marital residence would equal seven percent, and

we do not consider this issue on the merits.

     In all other respects before us on appeal we affirm, and we

deny the parties' competing requests for attorney's fees and

costs.   Thus, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

                                I.

     "Fashioning an equitable distribution award lies within the

sound discretion of the trial judge . . . ."   Srinivasan v.

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).

On appeal, we review the evidence in the light most favorable to



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the party prevailing below.    See, e.g., Anderson v. Anderson, 29

Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).

                                 A.

                    CLASSIFICATION OF THE PATENT

     Pursuant to Code § 20-107.3, a court dissolving a marriage,

"upon request of either party, shall determine the legal title

as between the parties, and the ownership and value of all

property" and classify that property as separate property,

marital property, or part separate and part marital property.

Code § 20-107.3(A).

     "All property . . . acquired by either spouse during the

marriage . . . is presumed to be marital property in the absence

of satisfactory evidence that it is separate property."   Code

§ 20-107.3(A)(2).   "A partner in a marriage owes his labor

during the marriage to the marital partnership[, and] [t]he

fruits of that labor, absent express agreement, are marital

property."   Stainback v. Stainback, 11 Va. App. 13, 24, 396

S.E.2d 686, 693 (1990).   Conversely, property acquired by a

party after the last separation is presumed to be separate

property, but that presumption is rebuttable.      Code

§ 20-107.3(A); Dietz v. Dietz, 17 Va. App. 203, 211-12, 436

S.E.2d 463, 468-69 (1993).    Where property, although acquired

post-separation, is acquired with marital assets or as a result

of the efforts of either party expended during the marriage, the

property is marital.   See Dietz, 17 Va. App. at 210, 436 S.E.2d

                                - 3 -
at 468; see also, e.g., Luczkovich v. Luczkovich, 26 Va. App.

702, 708-09, 496 S.E.2d 157, 160 (1998) (severance package);

Banagan v. Banagan, 17 Va. App. 321, 324-25, 437 S.E.2d 229,

230-31 (1993) (retirement benefits).

     These principles are equally applicable to the

classification of

            intellectual property interests[, which are]
            acquired when the owning spouse expends the
            necessary effort and not when they are
            actually received. Thus, a copyright
            received shortly after the marriage begins
            should be separate property if the owning
            spouse performed the necessary work before
            the marriage. Similarly, if a spouse
            expends all of the necessary effort during
            the marriage, but actually receives the
            patent a week after the date of
            classification, the patent should be marital
            property. Where the work is done partly
            before and partly after the marriage, a
            patent would logically have both marital and
            separate interests.

Brett R. Turner, Equitable Distribution of Property § 6.23, at

433-34 (2d ed. 1994) (emphasis omitted).

     Here, the trial court held that "no award shall be given to

[husband]" from the proceeds of the sale of the "Twistee" patent

but did not indicate the basis for that decision.   Wife argues

that this statement constituted a ruling that the patent was her

separate property.   We are unable to determine whether the trial

court's ruling constituted a classification of the property as

separate.   However, the trial court had a duty to classify all

property, see Code § 20-107.3(A), and to the extent the trial


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court's statement constituted a ruling that the patent was

wife's separate property, that ruling was erroneous based on the

principles discussed above.

     The evidence, viewed in the light most favorable to wife,

supports the court's findings that "the device was [wife's]

idea" and that "the patent was granted after the parties'

separation."   However, these facts do not support the conclusion

that no portion of the patent proceeds were marital or that

husband was not entitled to any share of the marital portion.

Uncontradicted evidence proved that the idea for an earlier

version of the "Twistee" came into being during the parties'

marriage, that husband created several prototypes in his shop,

that husband completed an application for a provisional patent

for the device in wife's name, and that the provisional patent

protected wife's interest in the device until she was able to

finalize the design and to apply for and receive the patent

itself.

     Thus, we conclude from this evidence that some portion of

the proceeds from the sale of the patent was marital, and we

remand to the trial court to apply the proper legal standard to

a classification and division of those proceeds.   We note,

however, that the classification of some or all of an asset as

marital does not prevent a trial court from awarding the full

value of that asset exclusively to one party as long as the



                               - 5 -
decision to do so does not constitute an abuse of discretion

under the facts of the particular case.

                                  B.

            CLASSIFICATION OF WHEAT FIRST BROKERAGE ACCOUNT

     Husband contends the trial court erred in finding wife

provided sufficient evidence to establish the fact and amount of

her initial separate contribution to the Wheat First brokerage

account and to retrace a portion of the funds in the account at

the time of separation to that initial contribution.    He asserts

that wife's testimony, with only minimal supporting

documentation, was insufficient to allow her to meet her burden

of proof.    He also emphasizes that the account balance fell

below the amount of wife's claimed initial contribution and that

the exhibit purporting to track the growth of this contribution

improperly calculated interest on a negative marital

contribution.

     Wife's testimony, if believed by the trial court, was

sufficient to establish that wife opened the Wheat First

brokerage account with $27,107 in separate funds, proceeds from

the sale of a house she owned prior to the parties' marriage.

"It is well established that the trier of fact ascertains

[witnesses'] credibility, determines the weight to be given

their testimony, and has the discretion to accept or reject any

of the [witnesses'] testimony[, whether in whole or in part]."

Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668

                                 - 6 -
(1997) (en banc); see also Anderson, 29 Va. App. at 684-88, 514

S.E.2d at 375-77 (affirming trial court's rejection of Mr.

Anderson's tracing testimony).    "Where a particular link in the

tracing chain is based solely upon the unsupported testimony of

one spouse, the trial court is free to credit that testimony and

find the asset to be separate property."   Turner, supra, § 5.23,

at 274.

     Although the evidence was sufficient to establish wife's

initial separate contribution, it also established that wife

withdrew substantial amounts of those separate funds to pay

marital bills, significantly depleting her initial separate

contribution.   Because subsequent deposits of marital funds into

that account were retraceable and no evidence established that

the parties intended for those deposits to be repayments of a

loan from wife's separate funds, those subsequent marital

deposits remained marital property.

     "[P]roperty which is marital may become separate only

through 'a valid, express agreement by the parties,' Wagner[ v.

Wagner], 4 Va. App. [397,] 404, 358 S.E.2d [407,] 410 [(1987)];

Code § 20-155 (marital provisions of Premarital Agreement Act),

or as provided in Code § 20-107.3(A)(3)(d)."    McDavid v.

McDavid, 19 Va. App. 406, 411, 451 S.E.2d 713, 716-17 (1994).

That subsection provides as follows:

               d. When marital property and separate
          property are commingled by contributing one
          category of property to another, resulting

                                 - 7 -
             in the loss of identity of the contributed
             property, the classification of the
             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.

Code § 20-107.3(A)(3)(d) (emphasis added).

        Wife's act of depositing marital funds, her earnings during

the marriage, into her separately titled Wheat First brokerage

account, which initially contained only her separate funds,

resulted in the presumption that the marital funds were

transmuted back into wife's separate property.     See Moran v.

Moran, 29 Va. App. 408, 413, 512 S.E.2d 834, 836 (1999).

However, Code § 20-107.3(A)(3)(d) provides that the contributed

property, here the marital funds in the form of wife's earnings,

shall retain its classification as marital to the extent it is

retraceable by a preponderance of the evidence and was not a

gift.

        We hold the property was retraceable because the evidence

showed the net marital transactions for most years during the

marriage and no evidence established that the deposits of

marital funds were a gift or even repayment of a loan resulting

from wife's earlier use of separate funds to pay marital

expenses.    Although wife's exhibit 30 treated the funds as if

they were repayment of a loan, no evidence tended to show that

either party had such an intent contemporaneous with any of the

                                 - 8 -
transactions.   Thus, wife was entitled to reclaim as her

separate property only the minimum account balance, as shown by

wife's exhibit 30, which was accepted by the trial court.

Correspondingly, wife was entitled to growth only on that

separate property which remained in the account.

                                C.

                 CHARLES SCHWAB BROKERAGE ACCOUNT

 1.   CLASSIFICATION OF HUSBAND'S SCHWAB ACCOUNT AND INHERITANCE

      Husband contends the trial court erroneously classified his

individual Charles Schwab brokerage account as marital,

especially in light of its statement that the inheritance

husband received from his mother, which he deposited in the

Charles Schwab account, was his separate property and had been

maintained as separate property.     We agree with husband.

      As set out above, property acquired by a party after the

last separation is presumed to be separate property.     Dietz, 17

Va. App. at 211-12, 436 S.E.2d at 468-69.    Uncontradicted

evidence, in the form of account statements for Charles Schwab

brokerage account #9725-0653, established that husband opened

the account in the year 2000, after the parties' separation in

1998, entitling him to the presumption that all funds in the

account were his separate property.    Wife proved that husband

transferred $269.62 from the parties' joint Charles Schwab

brokerage account into husband's new individual Schwab account,

and she sought a credit for half that amount.    However, she did

                               - 9 -
not seek any interest on that amount and offered no evidence to

establish that any other funds in that account were marital.

Thus, husband was entitled to the presumption that the funds in

the account beyond the $269.62 were his separate property.

Although husband had no duty to prove a non-marital source of

the remaining funds in the account, he testified that he

received an inheritance of approximately $40,000 upon his

mother's death in August 2000.

   2.   WITHDRAWALS FROM THE SCHWAB ACCOUNT FOR FEES AND COSTS

     Husband contends the trial court erroneously awarded wife a

credit of $25,000 for monies husband was permitted to withdraw

from the Schwab brokerage account.      Based on our conclusion

above, that all but $269.62 of this account was husband's

separate property, we hold the trial court erred in awarding

wife a credit for $25,000.   Because the account was husband's

separate property, wife had no interest in it, and husband was

free to spend it as he wished.

                                 D.

                       HUSBAND'S PICKUP TRUCK

     Husband contends the trial court erroneously classified his

1990 Ford pickup truck, which he purchased after the separation,

as marital property.   Wife concedes the pickup truck was

husband's separate property and that she should not have been

awarded $2,875, which represents half the equity in the truck.



                               - 10 -
Based on this concession, we remand to the trial court for an

appropriate adjustment in the equitable distribution award.

                                    E.

                             MARITAL RESIDENCE

           1.   VALUATION:    DEDUCTION OF SELLING EXPENSES

     The court did not err in allowing a deduction for selling

expenses simply because it awarded the marital residence to wife

without requiring her to sell it.        Deductions for "[e]xpenses of

sale, such as a broker's fee in the sale of real estate," are

proper "if the asset is actually being sold or is likely to be

sold."   Peter N. Swisher, Lawrence D. Diehl & James R. Cottrell,

Virginia Family Law § 11-25(a), at 492 (3d ed. 2002).         Here,

uncontradicted evidence established that wife wished to sell the

property and that two offers of purchase had already been made,

making wife's sale of the property likely.

     Our holding in Arbuckle v. Arbuckle, 22 Va. App. 362, 470

S.E.2d 146 (1996), cited by husband, does not require a

different result.    Arbuckle, in which we distinguished our

holding in Barnes v. Barnes, 16 Va. App. 98, 105-06, 428 S.E.2d

294, 300 (1993), supports the conclusion that the trial court's

deduction of selling expenses was not error because sale was

likely and, therefore, not speculative.          Arbuckle, 22 Va. App.

at 365-66, 470 S.E.2d at 146-48.

     Husband also contends no evidence supported wife's

representation, adopted by the trial court, that selling

                                  - 11 -
expenses would equal seven percent.    However, husband failed to

preserve this issue for appeal.   "In order to be considered on

appeal, an objection must be timely made and the grounds stated

with specificity."   Marlowe v. Commonwealth, 2 Va. App. 619,

621, 347 S.E.2d 167, 168 (1986) (emphasis added).   "It is the

duty of a party . . . to state the grounds of his objection, so

that the trial judge may understand the precise question or

questions he is called upon to decide."    Jackson v. Chesapeake &

Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 492-93 (1942).

      Here, husband specifically objected to the court's

deduction of selling expenses only on the ground that the court

awarded the residence to wife and did not require her to sell

it.   He objected only generally to the court's reliance on three

of wife's exhibits, including the one purporting to calculate

the parties' interests in the marital residence, on the ground

that they "contain[ed] assertions of fact that receive no

support in testimony or . . . elsewhere in the record and

exhibits, or in attachments thereto."   We hold these objections

were insufficient to permit the trial court to "understand the

precise question or questions [it] is called upon to decide."

Id.   Thus, we affirm the trial court's calculation of the value

of husband's share of the marital residence and its award of the

residence to wife.




                              - 12 -
           2.   CREDIT FOR EXPENSES FOR MARITAL RESIDENCE

     "Although the separate contribution of one party to the

acquisition, care, and maintenance of marital property is a

factor that the trial court must consider when making its award

of equitable distribution, Code § 20-107.3 does not mandate that

the trial court award a corresponding dollar-for-dollar credit

for such contributions."    von Raab v. von Raab, 26 Va. App. 239,

249-50, 494 S.E.2d 156, 161 (1997).     Here, the evidence

established that when the parties separated, they agreed husband

would stay in the house and make the mortgage payments.       Husband

remained in the house for only six months and then moved to

Florida.   Although he rented out the basement apartment and two

of the bedrooms in the main part of the house, he maintained a

bedroom for his own use when he returned to visit his children

and grandchildren, and he allowed his forty-year-old son to

occupy a fourth bedroom without paying rent.

     Husband received rent of $1,350 per month for the apartment

and two bedrooms, which exceeded the monthly mortgage obligation

of approximately $1,150.   Although he alleged a net loss of

$37,640.46, the expenses he claimed included costs the court was

entitled to find were unnecessary, inappropriate, or incredible.

He included as expenses $2,736 he paid to wife for a joint tax

obligation and $2,340 in mileage expenses for three round trips

from Florida to care for the house.     He included monthly

expenses for cable television and telephone but testified that

                               - 13 -
he paid these expenses on a property he rented to others

"[b]ecause [he] use[d] the property."   He also included expenses

for water, gas, electricity, housekeeping and household

supplies.   He claimed that these items were "part of the rent,"

but he did not indicate what portion of those expenses was paid

in exchange for rent received from his tenants and what portion

was attributable to his and his son's use of the house.

     Husband testified that in addition to "maintaining [the]

marital property," some of his expenditures were "to get the

house back in shape to make it attractive to potential buyers."

However, he offered no evidence that these post-separation

expenditures increased the value of the house.

     Because husband (1) had exclusive possession of the marital

residence and all rental income therefrom and (2) furnished

evidence of expenses to maintain and improve the property which

the trial court could properly find were unnecessary,

inappropriate, or incredible, the court did not abuse its

discretion in awarding wife a credit for four months of mortgage

payments without giving husband a corresponding credit.

                                F.

                     ATTORNEY'S FEES AND COSTS

     Both parties seek an award of attorney's fees and costs on

appeal.   Because we affirm in part and reverse in part, we find

it appropriate that the parties bear their own fees and costs,

and we deny the parties' requests.

                              - 14 -
                                 II.

                            CONCLUSION

     We hold the trial court failed expressly to classify a

patent and its proceeds and may have applied an incorrect legal

standard in holding that "no award shall be given to [husband]"

from the proceeds of the patent's sale.   Also, the court erred

in holding wife succeeded in retracing her entire separate

contribution to the Wheat First account and in calculating the

earnings thereon.

     Further, it erred in classifying as marital property the

Charles Schwab brokerage account opened by husband after the

parties' separation where wife's evidence established that only

$269.62 of the funds in that account were marital and that the

bulk of the account was derived from husband's inheritance from

his mother.   Because this account was husband's separate

property, the court erred in granting wife a credit for the sums

husband was allowed to withdraw from that account during the

pendency of these proceedings.   As conceded by the parties, the

court erred in classifying husband's pickup truck as marital

property.   Finally, husband failed to preserve for appeal his

argument that no evidence supported the finding that expenses

for selling the marital residence would equal seven percent, and

we do not consider this issue on the merits.

     In all other respects before us on appeal we affirm, and

deny the parties' competing requests for attorney's fees and

                              - 15 -
costs.   We remand to the trial court for further proceedings

consistent with this opinion.

                                                 Affirmed in part,
                                                 reversed in part,
                                                     and remanded.




                                - 16 -
