                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Bray and
          Senior Judge Overton ∗
Argued at Norfolk, Virginia


BETTY M. McPHERSON
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1022-98-1                   JUDGE RICHARD S. BRAY
                                                MARCH 2, 1999
JOHN P. McPHERSON

JOHN P. McPHERSON

v.   Record No. 1037-98-1

BETTY M. McPHERSON


                FROM THE CIRCUIT COURT OF YORK COUNTY
                    N. Prentis Smiley, Jr., Judge

            Lawrence D. Diehl for Betty M. McPherson.

            Scott L. Reichle (Donald J. Reichle; Reichle &
            Reichle, P.C., on briefs), for John P.
            McPherson.

     The instant cause was initiated in the trial court by

Betty M. McPherson (wife), praying for a divorce and related

relief from John P. McPherson (husband).   The matter was referred

to a commissioner in chancery (commissioner), and an extensive

report was lodged with the court following several evidentiary

hearings.   Both parties excepted to specific findings and

     ∗
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     ∗∗
      Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
recommendations of the commissioner, ore tenus arguments were

heard by the court and the final decree, which aggrieved both

parties, was entered on April 8, 1998.

     Wife complains on appeal that the court erroneously (1)

classified her separate property, Bethel Manor Dairy Queen (Dairy

Queen) and related realty, as hybrid property and incorrectly

determined and valued the resulting separate and marital shares,

(2) failed to classify Yorktown Industries (Yorktown) as marital

property either by transmutation or agreement of the parties, and

(3) fixed the monetary award.   Husband, on cross-appeal, contends

that the court improperly (1) awarded wife spousal support, (2)

failed to hold wife accountable for waste of marital assets, (3)

classified the “marital home,” 226 Bacon Street (Bacon Street), as

wife’s separate property, (4) determined wife’s separate property

interests in Dairy Queen, (5) classified monies in certain

business accounts of the parties, and (6) awarded wife a portion

of her attorney’s fees.

     Finding substantial error in the court’s classification and

valuation of significant assets in issue, we reverse the decree

and remand the proceedings.   The parties are fully conversant with

the voluminous record, and a recitation of the facts is

unnecessary to this memorandum opinion.

     Guided by familiar principles, we view [the] evidence and

all reasonable inferences in the light most favorable to the

prevailing party on an issue below.     Although a decree based upon

depositions is "'not as strong and conclusive as one based on



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evidence heard ore tenus, [it] is presumed to be correct . . .

[and] will not be reversed if . . . reasonably supported by

substantial, competent and credible evidence.'"     Martin v.

Martin, 202 Va. 769, 773, 120 S.E.2d 471, 474 (1961) (citations

omitted).   Thus, we defer to the chancellor’s "'resolution of the

conflict in the equities'" in adjudicating equitable distribution

and will disturb a decree only when the court has abused its

discretion, departed from statutory mandate or acted without

support in the evidence.     Banagan v. Banagan, 17 Va. App. 321,

326, 437 S.E.2d 229, 231-32 (1993) (citation omitted).      "[T]he

burden is on him who seeks to overturn [a decree] to show that it

is manifestly wrong."     Canavos v. Canavos, 200 Va. 861, 866, 108

S.E.2d 359, 363 (1959).

                                  I.

                 There are three stages to making an
            equitable distribution of property. The
            court first must classify the property as
            either separate or marital. The court then
            must assign a value to the property based
            upon evidence presented by both parties.
            Finally, the court distributes the property
            to the parties, taking into consideration the
            factors presented in Code § 20-107.3(E).
Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436

(1991); see Code § 20-107.3.

     Code § 20-107.3(A) defines both separate and marital

property, expressly designating increases in the value of

separate property during marriage as separate property, unless

attributable either to marital property or substantial and

resulting from the "significant" "personal efforts" of either



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party.   Code § 20-107.3(A)(1).    Property appreciated by marital

effort or assets becomes "part marital . . . and part separate,"

with the marital portion comprised of the marital contributions

to enhancement.   Code § 20-107.3(A)(3); see Code

§ 20-107.3(A)(1).   The burden is upon the "nonowning spouse" to

prove marital interest enhanced separate property, but, once

established, the "owning spouse" must show that such increase is

attributable neither to marital property nor effort. 1   Code

§ 20-107.3(A)(3)(a).   Manifestly, whenever enhancement is the

wealth in issue, the court cannot properly conduct a

classification and value analysis without first ascertaining the

amount of appreciation.   See, e.g., Martin v. Martin, 27 Va. App.

745, 501 S.E.2d 450 (1998); Rowe v. Rowe, 24 Va. App. 123, 480

S.E.2d 760 (1997); Decker v. Decker, 17 Va. App. 12, 435 S.E.2d

407 (1993).

     Here, the record discloses neither the values of Dairy Queen

and Bacon Street, wife’s properties, nor the values of certain

Yorktown assets, husband’s holdings, at the time of marriage.

Thus, the court’s determination of marital and separate interests

in these otherwise separate assets, together with attendant

values, was unsupported by evidence and in error.    Further, the

consideration of such findings in an equitable distribution


     1
      Similarly, separate property commingled with marital
property in a "newly acquired" asset may be saved from
transmutation by tracing, with enhancements in value subject to
like analysis. Code § 20-107.3(A)(3)(e); see Martin v. Martin,
27 Va. App. 745, 751-52, 501 S.E.2d 450, 453 (1998).



                                  - 4 -
analysis and award infected the entire adjudication and

compounded the error.   See Code § 20-107.3(E).    Accordingly, we

must reverse the disputed decree and remand the proceedings to

the trial court for reclassification and revaluation of

enhancements in the property interest of the parties and

determination of an award guided by Code § 20-107.3 and this

opinion.

                                  II.

     We must now address several remaining issues on appeal which

may arise on remand.

     Relying upon an alleged oral "agreement to reconcile," wife

claims a contractual one-half interest in Yorktown.     Assuming,

without deciding, that such agreements are cognizable in divorce

proceedings, "the same rules generally applicable to contracts

control the issue" of validity.     Richardson v. Richardson, 10 Va.

App. 391, 395, 392 S.E.2d 688, 690 (1990).    "To be valid and

enforceable, the terms of an oral agreement must be reasonably

certain, definite, and complete to enable the parties and the

courts to give the agreement exact meaning."      Id. (citation

omitted).   "[T]he proponent of [an] oral contract has the burden

of proving all elements" of the contract.     Id. at 396, 392 S.E.2d

at 690 (citation omitted).

     The commissioner found no "meeting of the minds" or

sufficient "proof . . . of such agreement," a finding

specifically "sustained" by the court.    Our deferential review of

the record reveals no definitive agreement between the parties as



                               - 5 -
a matter of law and we, therefore, decline to reverse the court’s

conclusion that wife’s evidence failed to sufficiently prove a

contract.

     In addition to marital effort, husband claims certain direct

monetary contributions to both the Bacon Street and Dairy Queen

properties in support of his claim to a marital interest in these

assets.   However, the record is silent on any increased value of

the properties resulting from such expenditures.   "The term

'contribution of marital property' within the . . . statute

contemplates an improvement, renovation, addition, or other

contribution which, by its nature, imparts intrinsic value to the

property and materially changes the character thereof."       Martin,

27 Va. App. at 756, 501 S.E.2d at 455 (citation omitted).

Evidence of cost does not sufficiently establish such value. 2

Id. at 756-57, 501 S.E.2d at 455-56.

     Husband contends that wife wasted certain marital assets

following separation "to pay for attorney’s fees and other costs"

without a full accounting.   "However, expenditure of funds for

items such as living expenses, support and attorney’s fees,

constitutes a valid purpose and is not dissipation . . . ."
Decker, 17 Va. App. at 19, 435 S.E.2d at 412.    The record

supports the court’s conclusion that wife’s expenditures of the

funds in issue did not constitute waste or dissipation, and this

determination will not be disturbed on appeal.

     2
      We defer to the court’s assessment on remand of husband’s
other marital contributions to enhancement of these properties.



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     Husband next complains that the court considered certain

marital cash on deposit in his "corporate business accounts,"

while excluding like monies held by wife in Dairy Queen.     The

record indicates that this Yorktown asset was not included with

other evidence of Yorktown’s worth, while the total value of

Dairy Queen was before the court as a recent sales price.     Such

evidence supports the inference that the Dairy Queen cash account

was included in that transaction and, therefore, also considered

by the court.

     Husband further argues that the court improperly awarded

wife "lump sum spousal support."      In awarding spousal support,

the court must consider numerous statutory factors, including the

"provisions made with regard to the marital property under [Code]

§ 20-107.3."    Code § 20-107.1(E).   Because the disputed decree is

reversed and remanded to the trial court on issues of equitable

distribution, we must also reverse and remand the spousal support

award for redetermination by the court under the circumstances

then pertaining.

     Lastly, husband complains that the trial court erroneously

awarded wife $10,000 attorney's fees and costs, and both parties

seek attorneys’ fees incidental to these appeals.     It is well

established that the award of attorney’s fees rests with the

sound discretion of the trial court and will not be disturbed on

appeal, absent abuse of such discretion.      Rowand v. Rowand, 215

Va. 344, 346-47, 210 S.E.2d 149, 151 (1974).     Finding no error in

this instance, we affirm the award to wife.     With respect to fees



                                - 7 -
arising from the respective appeals, we have determined, after

review of the record and consideration of the issues and

attendant circumstances, to deny an award to both parties.

     Accordingly, we reverse the disputed decree and remand the

cause to the trial court for reconsideration of the relevant

issues before the court, together with such additional evidence

as the court deems appropriate to a just adjudication consistent

with statute and this opinion.

                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




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