                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Frank and
          Senior Judge Coleman ∗
Argued at Salem, Virginia


WESLEY VERNON SNIDER, III
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1539-99-3                 JUDGE ROBERT P. FRANK
                                            JANUARY 16, 2001
DIANA LEIGH ASHWORTH SNIDER, N/K/A
 DIANA LEIGH ASHWORTH


            FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                        Ray W. Grubbs, Judge

           Gordon H. Shapiro (Shapiro & Kurtin, on
           brief), for appellant.

           John S. Huntington for appellee.


     Wesley Vernon Snider, III, (husband) appeals the trial

court's equitable distribution award.   On appeal, he contends

the trial court erred in:   1) finding Diana Ashworth Snider's

(wife) testimony regarding the value of the Vicker Switch Honey

Company (bee business) more persuasive and awarding her a sixty

percent distributive share of the business, 2) valuing the

marital home at $78,000 by finding husband committed waste of


     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
$7,500 between the date of the parties' separation and the date

of the equitable distribution hearing, 3) finding the home was

marital property and awarding wife a distributive share of such

property, and 4) awarding wife the fair market rental value of

the home.

                           I.   BACKGROUND

     The parties were married on June 29, 1983.     They separated

on April 6, 1994.   Since the only issues before this Court are

the company and the home, we only recite the facts relevant to

those issues.

     Husband founded the Vicker Switch Honey Company

approximately five years prior to the parties' divorce.    He

testified the business was a national and international company.

He testified that, at one time, the business had forty hives,

which produced a ton of jarred honey.    The business also had the

east coast contract to sell a swarm trap to combat killer bees.

The business had an inventory of suits, smokers, veils, hats,

and other related items.

     Husband testified the business was nearly defunct at the

time of the parties' separation and had no value.    He stated

that mites had attacked the bees and had caused the business to

lose "about everything."

     Wife testified she was not involved in the operation of the

business but that it was not defunct at the time of the parties'

separation.   Wife further testified she never had access to the

                                - 2 -
books for the business.   She stated she never knew if the

business made a profit.   She never saw any of the proceeds from

the business.

     When asked the value of the business at the time of the

separation, wife answered that she did not know.   When her

attorney asked her to give her "best estimate" she stated,

"Fifteen thousand."

     The trial court accepted wife's valuation of the business

and awarded wife a sixty percent distributive share or $9,000.

     Prior to the marriage, husband's father gave him a parcel

of land.   Before the parties' marriage, a basement was built on

the site, and the parties lived in the basement until the upper

house was completed.   After the marriage, work began on the

house.   The land remained titled in husband's name.

     Husband testified he served as the general contractor for

the construction of the house and did much of the work himself.

The parties differ on the efforts each provided to the

construction of the improvements.   Husband claimed he performed

sixty to eighty percent of the work.   Wife maintained they both

worked on the house, as did others.    Wife testified she obtained

a number of electrical fixtures through her employment and

installed them.   Husband testified wife did no work on the

house.

     The initial funding for the basement was a combination of

the infusion of separate property and a loan.   Wife testified

                               - 3 -
she used $6,000 of her separate funds and husband used between

$1,000 and $2,000 of his funds.   Additionally, wife testified

she borrowed $15,000 for the basement because husband was not

employed at that time.    This loan for the basement subsequently

was rolled into the permanent first deed of trust.

     The next loan was a permanent first deed of trust for

$57,000.    The monthly curtailments were paid from a joint

account.    The loan balance of $48,341.93 was satisfied on April

21, 1993, from the proceeds of husband's personal injury

settlement.   There is no dispute that this settlement was

husband's separate property.

     After satisfying the first deed of trust, the parties

borrowed $15,000.   Both parties agreed the balance of this loan

was $13,946.45 as of April 1, 1994, and $10,594.91 as of July

20, 1995.   Husband paid the monthly payment of $296.95.

     Wife testified her father gave her approximately $34,000

between the years 1991 and 1994, which she stated she put into

the house and marriage.   All of these gifts were deposited into

a joint account.

     Wife testified that while the parties' non-monetary

contributions to the marriage were approximately equal, she

contributed more cash to the marriage than did husband.

     Husband's appraiser, Todd Linkous, appraised the house at

$71,000 in its current condition.   Mr. Linkous, however, noted

the home needed roof repair, cosmetic repair, and the interior

                                - 4 -
and exterior of the home was in need of cleaning and sealing.

Linkous estimated the repairs at $7,500.   With the repairs, he

stated the house would be worth $78,500.   The property was

assessed, for tax purposes, at $71,800 for the years 1995

through 1997.   Wife maintained the value of the property was

$78,000.    Husband's equitable distribution submission also

showed the value as $78,000.   The trial court found the fair

market value of the home to be $78,000.    The trial court

included the $7,500 repair estimate, finding the repairs were

necessitated during husband's sole post-separation occupancy of

the home.   The trial court further found that husband should not

benefit by his neglect of the property.    Husband, in his

deposition, acknowledged the interior and exterior of the house

needed to be cleaned and sealed.   He further admitted he made no

repairs to the house but stated he maintained it.

     An appraisal further revealed the fair market rental value

of the home was $675 per month.    Husband exclusively had lived

in the house since April 6, 1994, the date of the parties'

separation.   The trial court awarded wife fifty percent of the

marital share of the fair market rental value.

     The trial court found the unimproved lot was separate

property, although no evidence indicated its value.   The court

found the house was hybrid property.




                                - 5 -
                             II.    ANALYSIS

           A.   Valuation of the Vicker Switch Honey Company

     Husband asserts the trial court erred in its valuation of

the bee business and its award of sixty percent of the valuation

to wife.    We agree.

                  "The rule is firmly established in
             Virginia that a divorce decree based solely
             on depositions is not as conclusive on
             appellate review as one based upon evidence
             heard ore tenus, but such a decree is
             presumed correct and will not be overturned
             if supported by substantial, competent and
             credible evidence."

Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828

(1986) (citations omitted). 1      The evidence in this case was taken

by deposition, thus, we will not disturb the award of the trial

court if it is supported by "substantial, competent and credible

evidence."

     When wife's attorney asked her the value of the Vicker

Switch Honey Company at the time of the parties' separation, she

testified that she did not know.       Then, her attorney again asked

her to provide her best estimate of the value of the business


     1
       At issue in this case is the equitable distribution award,
which pursuant to Code § 20-107.3(A), the trial court determines
"[u]pon decreeing the dissolution of a marriage, and also upon
decreeing a divorce from the bond of matrimony, or upon the
filing with the court as provided in subsection J of a certified
copy of a final divorce decree obtained without the
Commonwealth . . . ." Code § 20-107.3(A). Because equitable
distribution occurs upon decreeing the divorce, we apply the
same standard to review the evidence in an equitable
distribution award.


                                   - 6 -
and she responded, "Fifteen thousand."    Wife also testified she

was not involved in the operation of the business, never had

access to the books for the business, did not know if the

business made a profit, and never saw any proceeds from the

business.   Husband testified the business was nearly defunct at

the time of the parties' separation.   He testified that while

the business had been a national and international business at

one time, mites had attacked the bees, which resulted in the

business losing "about everything."    Husband testified the

business had no value at the time of the parties' separation.

     The trial court's acceptance of the wife's valuation of the

business was not supported by substantial, competent, and

credible evidence.   Wife testified she was not involved in the

business and had no knowledge of the financial status of the

business.   Further, her testimony indicated that she did not

know the value of the business at the time of the separation and

she only answered "Fifteen thousand" when again questioned by

her attorney as to her "best estimate."   Therefore, we find the

trial court erred in accepting wife's valuation of the business

and remand for redetermination of the award with respect to the

business.




                               - 7 -
                         B.   The Marital Home 2

     Husband argues the trial court erred in valuing the

parties' home at $78,000.     Todd Linkous, the appraiser, valued

the home at $71,000 and noted the home needed $7,500 worth of

repairs.    The trial court valued the home at $78,000, stating

the necessity of the repairs accrued during husband's

post-separation occupancy of the property.         The trial court

found that husband should not benefit from his neglect of the

property.   We agree with the trial court's valuation of the

property, but find the trial court was right for the wrong

reason in reaching such valuation.

     "An appellate court may affirm the judgment of a trial

court when it has reached the right result for the wrong

reason."    Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417

S.E.2d 312, 313 (1992) (citation omitted).         This rule applies in

civil cases.    See id. (citation omitted).        The rule, however,

does not always apply:

                 It may not be used if the correct
            reason for affirming the trial court was not
            raised in any manner at trial. Eason v.

     2
       The first deed of trust on the parties' marital home was
satisfied by proceeds from husband's personal injury settlement.
"Separate property does not by its express terms include
personal injury settlements." Thomas v. Thomas, 13 Va. App. 92,
94, 408 S.E.2d 596, 598 (1991). Instead, because of the
presumption favoring marital property, the party who claims the
settlement is separate property bears the burden of proving the
settlement is separate property. See id. In this case, the
parties agreed that husband's personal injury settlement was
separate property. We, therefore, do not address this issue.


                                  - 8 -
           Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283
           (1963). In addition, the proper application
           of this rule does not include those cases
           where, because the trial court has rejected
           the right reason or confined its decision to
           a specific ground, further factual
           resolution is needed before the right reason
           may be assigned to support the trial court's
           decision. Sateren v. Montgomery Ward & Co.,
           234 Va. 303, 306, 362 S.E.2d 324, 326
           (1987).

Id. at 452, 417 S.E.2d 313-14.

     The record established that the house was appraised at

$78,000, which also was husband's valuation of the home in his

equitable distribution submission.       Wife raised the fact that

husband valued the home at $78,000 in her memorandum of law

submitted to the trial court.    No further factual resolution is

needed.   We find the trial court was correct in valuing the home

at $78,000 but did so for the wrong reason.

     Husband next argues the trial court erred in classifying

the home as marital property.    We disagree.

                Our standard of review of this
           particular issue is well settled. "Code
           § 20-107.3 contains no presumption favoring
           equal division of marital property.
           Moreover, in 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." Aster v. Gross, 7 Va.
           App. 1, 8, 371 S.E.2d 833, 837 (1988)
           (citation omitted).

Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644

(1992).

                                 - 9 -
     Code § 20-107.3(A)(3)(a) provides that property not owned

by both parties may be classified as marital property when the

value of separate property has increased because "marital

property or the personal efforts of either party have

contributed to such increases . . . ."   In this case, the trial

court found that the parties' home, as opposed to the unimproved

lot, was marital property under Code § 20-107.3(A)(3)(a) due to

wife's "certain contributions of marital property and personal

effort in contributing to appreciation of the unimproved lot,

[husband's] separate property."   We find the trial court

carefully considered the factors in subsection (A) and did not

abuse its discretion in classifying the parties' home as marital

property and awarding wife a distributive share of such

property.

     Husband finally contends the trial court erred in ruling

wife had a rental interest in the marital home and in making an

award of the rental value of the home.   We agree.

     Code § 8.01-31 states, "An accounting in equity may be had

against any fiduciary or by one joint tenant, tenant in common,

or coparcener for receiving more than comes to his just share or

proportion, or against the personal representative of any such

party."

     As contemplated by Code § 8.01-31, an accounting occurs

only when there is co-ownership of the property.     Thus, a party

is entitled to the fair market rental value of the property only

                             - 10 -
when that party has joint ownership of the property.    See Gaynor

v. Hird, 15 Va. App. 379, 381, 424 S.E.2d 240, 242 (1992).

     In this case, the record established, and wife conceded on

brief, that wife was not a title owner of the property.     The

property was deeded to husband prior to the parties' marriage,

and the property was never titled in wife's name.    Therefore,

because she is not an owner of the property, wife is not

entitled to the fair market rental value.

     For these reasons, we find the trial court was correct in

valuing the parties' home at $78,000 and in classifying the home

as marital property.   The trial court, however, erred in

accepting wife's valuation of the bee business and in awarding

wife the fair market rental value of the home.   We remand for

redetermination of the award for the bee business.

                                            Reversed and remanded.




                              - 11 -
