                  COURT OF APPEALS OF VIRGINIA


Present: Judges Barrow, * Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia


MARGARET JANE CRYOR GAYNOR

v.         Record No. 1227-94-4           MEMORANDUM OPINION** BY
                                          JUDGE BERNARD G. BARROW
FREDERICK SYLVESTER HIRD, JR.                  AUGUST 1, 1995



           FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     Paul F. Sheridan, Judge

          Edward V. O'Connor, Jr. (The Lewis Law Firm, on
          briefs), for appellant.

          William B. Cummings (William B. Cummings, P.C.,
          on brief), for appellee.



     In this appeal, we conclude that the trial erred in

determining the award to which the appellant is entitled as a

co-tenant of the property the appellee possessed to the

appellant's exclusion.

                         I.   REASONABLE RENT

     A co-tenant who occupies and uses a home to the exclusion of

another co-tenant must account to the other co-tenant for the

"'reasonable rent for the use and occupation of the property in

the condition in which it was when he received it.'"    Gaynor v.

Hird, 15 Va. App. 379, 381, 424 S.E.2d 240, 242 (1992) (quoting
     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the panel members joined in the opinion.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Early v. Friend, 57 Va. (16 Gratt.) 21, 53 (1860)).     A co-tenant

entitled to such rent must, in turn, reimburse the co-tenant in

possession for one-half of the mortgage payments and one-half of

the taxes paid by the tenant in possession.     Jenkins v. Jenkins,

211 Va. 797, 800, 180 S.E.2d 516, 518 (1971).

     Instead, in this case, the trial court awarded the appellant

the reasonable rental value of the property and subtracted the

cost of all improvements and maintenance, including outdoor

maintenance.   In doing so, the court relied on the principle that

"the expenditure from each year should be offsetted against the

rents and profits" (quoting Ruffners v. Lewis' Exc'rs, 7 Leigh
(34 Va.) 720, 744 (1836)).   However, this principle applied to an

accounting of actual rents and profits from a parcel of land for

which money had been spent to develop the property and enhance

its profitability, not to a co-tenant residing in a home to the

exclusion of the other co-tenant.   Therefore, the court applied

the wrong standard to determine the amount to be awarded.

                II.   MORTGAGE, TAXES, AND INSURANCE

     The appellant is required to reimburse the appellee for one-

half of his expenditures for the mortgage, taxes, and insurance,

but not 100% of these expenditures.     However, the appellant

contends that the trial court has required her to reimburse the

appellee twice for one-half of these expenses.    In support of her

contention, she refers us to the court's disposition in this

decree and to its disposition in an earlier decree dated



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November 13, 1991.   However, the earlier decree was reversed by

this court.   Presumably, upon remand, reimbursement of these

expenditures to the appellee will not be duplicated in disposing

of any other aspect of this proceeding.

                     III.   APPRAISERS' TESTIMONY

     The appellant complains of the weight the trial court chose

to give to the testimony of the appraisers who testified before

the commissioner.    The commissioner, basing his finding on the

testimony of one appraiser, found that the fair market rental

value ranged from $1,975 to $2,650 a month.    The trial court

rejected this testimony and, based on the testimony of another

appraiser, found that the fair market rental was $2,000.    We have

reviewed the evidence and ascertained that the evidence supports

the findings of the trial court that the fair market rental value

of the house as received by the appellee was $2,000.     See Hill v.

Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296 (1984).     Furthermore,

the trial court's adjustments of 5% per anum for earlier and

later years were supported by the evidence.

                            IV.    EXPENSES

     The trial court improperly deducted certain of the

appellee's expenses in determining the reasonable rental value to

which the appellant is entitled.     Except for mortgage and tax

expenses, such deductions are contrary to the rule applicable to

this case that a co-tenant who occupies and uses a home to the

exclusion of another co-tenant must account to the other



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co-tenant for the "'reasonable rent for the use and occupation of

the property in the condition in which it was when he received

it.'"     Gaynor, 15 Va. App. at 381, 424 S.E.2d at 242.

Furthermore, the record indicates that certain of the exhibits

which the court relied upon were not admitted into evidence and,

therefore, should not have been considered.     See Brittle v.

Commonwealth, 222 Va. 518, 522-23, 281 S.E.2d 889, 890 (1981).

Consequently, the court erred in making these deductions.
                    V.   SHARE OF RENT AND EXPENSES

        The trial court, relying on an earlier finding in connection

with the monetary award that the appellee had contributed 75% of

the monetary cost of the acquisition and maintenance of the

residence, awarded the appellant only 25% of the reasonable

rental value of the residence and deducted 25% of the mortgage

and tax expenses.    It erred in making such a division.

        As one of two co-tenants, the appellant owned an undivided

legal one-half interest in the property.     See Jenkins, 211 Va. at

799-800, 180 S.E.2d at 518.     Her rights and interest in marital

property under Code § 20-107.3 do not attach to her legal title

to the property but "are only to be used as a consideration in

determining a monetary award."     Code § 20-107.3(B).   This decree

was not a determination of a monetary award; it was an accounting

for rents based on her legal title in the property.

        The determination that the appellee had contributed 75% of

the cost of the acquisition and maintenance of the property is



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only one factor to be used in making a monetary award and had

nothing to do with the determination undertaken in this decree.

Therefore, the trial court had no basis for dividing the rents,

mortgage and taxes as it did.

                       VI.   TERMINATION DATE

     The trial court terminated the award of rental value as of

four days before the posting of the suspension bond pending the

appeal of the allotment order.      However, no evidence in the

record indicates that the appellee discontinued possession of the

property to the exclusion of the appellant.     The award of

one-half of the rental value of the property is to compensate the

appellant for the appellee's possession of the property to her

exclusion.   Her appeal of the allotment decree did not terminate

her interest in the property, nor compensate her for its loss.

Consequently, she was entitled to one-half of the rental value so

long as the appellee continued to dispossess her of it which, in

this case, was until the property was conveyed to the appellee.
                             VII.   REMAND

     Upon remand, the trial court shall, for the period from

October 1, 1985 to June 29, 1993, (1) determine one-half of the

reasonable rental value of the property, based upon the value of

$2,000 per month previously found by the court, adjusted at a

rate of 5% per anum, as previously approved by the trial court,

for those years before and after the date of valuation, (2)

determine one-half of the cost of the mortgage payment and taxes



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expended by the appellee, (3) subtract the latter from the

former, to the extent that the appellant has not otherwise been

charged with these expenses, and award the appellant the

resulting amount.   In addition, the court shall award her

interest, at the legal rate of interest, on the monthly amount

accruing from October 1, 1985.

     The decree appealed from is reversed, and the matter is

remanded for further proceedings as required by this opinion.
                                         Reversed and remanded.




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