                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


CHARLES STUART DeHAVEN, JR.
                                           MEMORANDUM OPINION * BY
v.       Record No. 0997-96-4           JUDGE JOHANNA L. FITZPATRICK
                                               APRIL 8, 1997
PAMELA BUSH DeHAVEN


            FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                       James L. Berry, Judge
           Jeffery R. Patton (Louthan & Patton, P.C., on
           brief), for appellant.

           Stephen G. Butler (Kuykendall, Johnston,
           McKee & Butler, P.L.C., on brief), for
           appellee.



     On appeal from a final decree granting the parties a divorce

and distributing their property, Charles Stuart DeHaven, Jr.

argues that the trial court erred in:    (1) its classification of

the value of the marital residence; (2) its classification of 200

shares of corporate stock; (3) its determination that the

increase in the corporate stock value was attributable to the

efforts of the parties, and (4) its determination that the

increase in the corporate stock value was not attributable, in

part, to the efforts of other persons.       For the reasons that

follow, we affirm in part and reverse in part.
                          I.    BACKGROUND

     Charles Stuart DeHaven, Jr. (husband) and Pamela Bush

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
DeHaven (wife) were married in 1976, and two children were born

of the marriage.   In 1978, the parties constructed a family

residence on land belonging to Charles Stuart DeHaven, Sr.

(Charles Sr.), husband's father.       Husband received funds from his

father and labor from his father's plant nursery business when

constructing the residence.   In 1979 and 1980, Charles Sr. and

his wife, Jane DeHaven, deeded the property ("land with

improvements thereon") by deeds of gift to both husband and wife.

     Charles Sr. was the sole proprietor of the nursery from 1966

to 1986.    In 1986, the business was incorporated, and the

corporation leased land from Charles Sr. on which it constructed

approximately $171,000 worth of improvements.      The improvements

became Charles Sr.'s property pursuant to a one-year lease.      To

service its operation, the corporation used water from a well

situated on land belonging to husband and wife.
     Wife worked for the nursery business from 1979 and was a

director of the corporation from 1986 until 1994, when she was

"removed."   Wife was paid a small salary throughout her

employment with the corporation.       Husband worked for the business

from 1976 throughout the parties' married life.      At the time of

incorporation in 1986, husband owned twenty-five percent of the

business.    By 1993, husband owned ninety-five percent of the

corporation, as a result of gifts of stock made to him by his

parents.    Additionally, during this time period, the corporation

paid husband a substantial salary.




                                   2
     On March 29, 1996, the trial court entered a final decree of

divorce.   The final decree incorporated the court's letter

opinion dated December 29, 1995.       The trial court's findings

included the following:
               The Court determines the first 200
          shares issued in 1986 to be marital property
          . . . . It is the opinion of the Court from
          the evidence that [the increase in value of
          the shares of stock received by the
          defendant], excluding inflation, is due to
          the personal efforts of the parties.

                It is the further opinion of the Court
           that the residence, built in 1978, and gifted
           to both parties in October of 1979 and
           February 1980 is entirely marital property.

     Additionally, the court classified as marital property a

life insurance policy valued at $7,694.74, husband's IRA valued

at $23,933.58, and wife's IRA valued at $17,917.36.      The court

found that husband possessed separate property of one hundred

acres of real estate valued at $100,000, and his separate share

of DeHaven Nursery, Inc. valued at $184,898.20.      Finally, the

court found that the "credit line debt of $39,555.78 [was]

entirely within the control of the [husband]" and attributed this

debt solely to husband.   The court stated its consideration of

the statutory factors as follows:
               Considering the factors set out in
          § 20-107.3 the Court finds Factors 3, 4, 5,
          6, 7, 8, and 9 to be either non-determinative
          or not applicable. Factor 1, strongly in
          favor of the complainant, Factor 2, slightly
          in favor of the defendant and Factor 5 in
          favor of the complainant. In addition, the
          Court has considered under Factor 10 that
          defendant holds net separate property
          totaling $245,343 and that the corporation



                                   3
has constructed $171,000 worth of
improvements on the defendant's parents'
property.




                      4
                     II.    THE MARITAL RESIDENCE

     Husband's first assignment of error is that the marital

residence should have been classified as part separate and part

marital property because it was "retraceable by a preponderance

of the evidence."    He contends that his "contributions of

separate property commingled with marital property" to become

"newly acquired property."     Thus, husband argues, because the

trial court erred in the classification of the marital residence,

it therefore erred in the valuation and distribution of the

marital residence.
     "Code § 20-107.3(A) gives the court the authority, '[u]pon

decreeing the dissolution of a marriage,' to value and apportion

marital property and marital debts.     The distribution

contemplated by the General Assembly is predicated on the

philosophy that marriage represents an economic partnership

requiring that, upon dissolution, each partner should receive a

fair proportion of the property . . . ."      Floyd v. Floyd, 17 Va.

App. 222, 226, 436 S.E.2d 457, 459 (1993) (quoting Roane v.
Roane, 12 Va. App. 989, 994, 407 S.E.2d 698, 701 (1991)).     Under

Code § 20-107.3, all property acquired during the marriage and

before the last separation of the parties is presumed to be

marital property in the absence of satisfactory evidence that it

is separate property.      See Stainback v. Stainback, 11 Va. App.

13, 17, 396 S.E.2d 686, 689 (1990).     Property that is titled in

the names of both husband and wife, as well as all other property



                                    5
acquired by either of them during the marriage which is not

separate property is marital property.       See Dietz v. Dietz, 17

Va. App. 203, 208, 436 S.E.2d 463, 467 (1993).

     "Generally, the character of property at the date of

acquisition governs its classification pursuant to Code

§ 20-107.3."   Stratton v. Stratton, 16 Va. App. 878, 881, 433

S.E.2d 920, 922 (1993).   "Although property is initially

classified as of the date of acquisition, once acquired, its

character may change."    McDavid v. McDavid, 19 Va. App. 406, 410,

451 S.E.2d 713, 716 (1994).   The party claiming that property

should be classified as separate has the burden to produce

satisfactory evidence to rebut the presumption that the property

acquired during the marriage is marital.       See Stratton, 16 Va.

App. at 882, 433 S.E.2d at 922.

     The trial court specifically found that, "the residence,

built in 1978, and gifted to both parties in October of 1979 and

February 1980 is entirely marital property."      We agree.     It is

undisputed that the parties built their residence in 1978 upon

land owned by husband's parents.       Husband and his father

testified that the property at issue was gifted to both husband

and wife in 1979 and 1980, and the deeds of gifts clearly reflect

the two transactions:
          THIS DEED OF GIFT, made and dated this 10th
          day of October, 1979, by and between CHARLES
          STUART DeHAVEN and JANE METZ DeHAVEN, . . .
          and CHARLES S. DeHAVEN, JR., and PAMELA BUSH
          DeHAVEN . . . . [T]he Grantors make this Deed
          of Gift and hereby grant and convey, . . .
          unto the Grantees in fee simple, jointly, as


                                   6
            tenants by the entireties with common law
            right of survivorship, an undivided one-half
            interest in the . . . described real estate
              . . . [a]ll of that lot or parcel of land
            with improvements thereon . . . . The
            Grantors covenant that . . . the property
            . . . is free from all liens and encumbrances
            . . . .1


Although husband testified that he contributed funds he had

accumulated prior to his marriage to the costs of building the

marital residence, the trial court determined that this testimony

did not sufficiently rebut the presumption that, upon

acquisition, the marital residence and land was, in fact, marital

property.
     "Property which is initially separate may become marital

property either by express agreement, or by the manner in which

it is maintained."    McDavid, 19 Va. App. at 410-11, 451 S.E.2d at

716 (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, 11

Va. App. at 21, 396 S.E.2d at 691.    The mere fact that husband

maintained a separate bank account for the funds to be used in

the home's initial construction does not in and of itself

transmute the marital property into husband's separate property.

 Rather, despite husband's contentions, the evidence demonstrated

that the home and the land, once deeded to husband and wife,


     1
      The deed of gift dated February 4, 1980 contains the same
language.




                                  7
remained marital.   Neither party treated it otherwise. 2   At the

time of conveyance, or any time thereafter, husband could have

documented his interests to reflect his belief of a separate

ownership interest.   Neither he nor his parents did so.    At no

time during the marriage did either party indicate in any way

that husband possessed a separate interest in the home or that he

possessed a greater share in the home's value due to his

contributions.
     "'[T]he finding of the judge, upon the credibility of the

witnesses and the weight to be given their evidence, stands on

the same footing as the verdict of a jury, and unless that

finding is plainly wrong, or without evidence to support it, it

cannot be disturbed.'"   Yates v. Commonwealth, 4 Va. App. 140,

143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184

Va. 603, 611, 35 S.E.2d 749, 753 (1945)).   "In this case, the

chancellor was confronted with conflicting testimony from
     2
      Compare McDavid, a case in which we held that where the
wife executed a deed of gift transferring her interest in the
marital property to husband, the marital property was transmuted
to separate property. In McDavid, we upheld the chancellor's
determination that property, marital when acquired by the
parties, became separate during the marriage. The husband and
wife executed a deed of gift transferring the wife's interest to
husband immediately after closing. The deed provided that the
husband would hold the property "'in his own right as his
separate and equitable estate as if he were an unmarried man
 . . . free from the control and marital rights of his present
   . . . spouse . . . .'" Id. at 411, 451 S.E.2d at 717. In the
instant case, no such evidence supports the husband's contention
that the marital residence and land attained or retained the
character of separate property.




                                 8
interested witnesses on each side of the case, and it was his

province alone, as the finder of fact, to assess the credibility

of the witnesses and the probative value to be given their

testimony.   We treat the factual determinations of a chancellor

based on ore tenus evidence in the same manner as factual

determinations made by a jury; we reverse them only if they are

plainly wrong or without evidence to support them."   Richardson

v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991)

(citations omitted).   See, e.g., Rowe v. Rowe, Record Nos.

0843-96-2, 0845-96-2 (Va. Ct. App. February 4, 1997) (where we

held the trial court erred by not classifying the marital

residence, purchased with $82,000 of husband's separate funds, as

completely marital property).   We held that the cumulative

evidence demonstrated that a gift was intended:   (1) the parties

purchased the home to accommodate their growing family; (2)

husband placed no reservations on the transfers of title

permitting him to reclaim the property upon divorce or any other

circumstance; and (3) the house was conveyed by joint title.

     Viewing the evidence and all reasonable inferences in the

light most favorable to the prevailing party, the wife, and

attributing great weight to the trial court's findings, see
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,

631 (1988), we conclude that the property was marital in

character when acquired by deed of gift from husband's parents.

The evidence proved that the property was a gift to both parties




                                 9
at the time it was deeded to the parties.     The trial court was

entitled to attribute greater weight to wife's testimony than to

husband's, and credible evidence supports the trial court's

determination.   Accordingly, we hold that husband failed to rebut

the presumption that the parties' marital residence was entirely

marital property.
                 III.   200 CORPORATE STOCK SHARES

     Husband next argues that the trial court should have

classified the initial 200 shares of corporate stock as the

separate property of the husband.     To support this argument, he

asserts the evidence confirmed that all the shares, including the

initial 200 shares, of corporate stock were gifted solely to him

from his parents, and that he retained these shares in his name

throughout the parties marriage.      We agree.
     The statutory definition of separate property includes "all

property acquired during the marriage by . . . gift from a source

other than the other party. . . ."     Code § 20-107.3(A)(1).   The

party claiming that property acquired during the marriage is a

gift has the burden of proving it.      Stainback, 11 Va. App. at 18,

396 S.E.2d at 689-90.   "In the case of a gift to one of the

spouses, if there is credible evidence presented to show that the

property was intended by the donor to be the separate property of

one of the spouses, the presumption is overcome, and the burden

shifts to the party seeking to have the property classified as

marital to show a contrary intent on the part of the donor."        Id.




                                 10
at 17-18, 396 S.E.2d at 689.    "[I]f the donee presents sufficient

evidence to rebut the statutory presumption of marital property,

and the other party presents no evidence to the contrary, . . .

the presumption is rebutted."    Huger v. Huger, 16 Va. App. 785,

788, 433 S.E.2d 255, 257 (1993) (citing Stainback, 11 Va. App.

13, 396 S.E.2d 686 (1990)).    Thus, if the wife presents no

evidence contrary to the husband's that the shares from his

parents' gifts were intended to be separate property, the

presumption that the shares were marital property is rebutted.
See id.

     The evidence established that husband owned 950 outstanding

shares of DeHaven Nursery, Inc. at the time of the dissolution of

the parties' marriage, and that these shares had been gifted to

husband from his parents during the period of July 1, 1986

through April 1, 1994.   The testimony confirmed that husband's

parents gave him 200 shares of the original issue of stock, and

that each year thereafter, husband's parents gave husband 100

shares annually as birthday gifts.    Moreover, it is undisputed

that the initial 200 shares were issued in husband's name.     Wife

presented no evidence to challenge husband's assertion that these

shares were meant to be other than a gift solely to the husband.

     Additionally, "'when we are required to review on appeal an

issue arising under [Code § 20-107.3][, w]e must be able to

determine from the record that the trial court has given

substantive consideration to the evidence as it relates to the



                                 11
provisions of this Code section.'"    Donnell v. Donnell, 20 Va.

App. 37, 42, 455 S.E.2d 256, 258 (1995) (quoting Trivett v.

Trivett, 7 Va. App. 148, 153, 371 S.E.2d 560, 563 (1988)).    In

the case at bar, the trial court gave no explanation of how it

arrived at its disposition of the 200 shares, and no evidence

supports the court's finding that these 200 shares were marital

property.    Rather, the evidence presented at trial confirmed the

gifting by husband's parents of all shares of corporate stock

solely to the husband, including the initial 200 shares as his

separate property.   Accordingly, we hold that the trial court

erred in classifying these 200 shares of stock as marital

property.
       IV.    INCREASE IN VALUE OF SHARE OF CORPORATE STOCK

     Lastly, husband argues that the trial court erred in

determining that the increase in the stock value was attributable

to the efforts of the parties and was not attributable in part to

efforts of other persons.   Code § 20-107.3(A)(3)(a) provides, in

pertinent part, as follows:
          In the case of the increase in value of
          separate property during the marriage, such
          increase in value shall be marital property
          only to the extent that marital property or
          the personal efforts of either party have
          contributed to such increases, provided that
          any such personal efforts must be significant
          and result in substantial appreciation of the
          separate property.

            For purposes of this subdivision, the
            nonowning spouse shall bear the burden of
            proving that (i) contributions of marital
            property or personal effort were made and
            (ii) the separate property increased in


                                 12
          value. Once this burden of proof is met, the
          owning spouse shall bear the burden of
          proving that the increase in value or some
          portion thereof was not caused by
          contributions of marital property or personal
          effort.


Thus, "[i]f husband prove[s] that passive factors . . . account[]

for a portion of the increase in the value of his stock, such

increase cannot be properly classified as marital property.

Similarly, . . . where third parties contribute to the increase

in value of separate property, the marital portion is to be

reduced proportionately."    Rowe v. Rowe, Record Nos. 0843-96-2,

0845-96-2, slip op. at 3 (Va. Ct. App. February 4, 1997) (citing

Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407 (1993)).      "The

increase classifiable as marital should reflect only that

attributable to [the parties'] personal efforts and not those of

[others] or passive factors. . . ."     Id., slip op. at 4.

     At trial, husband's expert stated that a number of factors

accounted for the increase in valuation, including market factors

such as inflation.   Wife testified regarding her role in the

family business, but husband and his parents presented differing

views of wife's efforts and contributions.    The trial court found

"from the evidence that such increase in value, excluding

inflation, is due to the personal efforts of the parties."
(Emphasis added).    The evidence supports the trial court's

conclusion that other than inflation, the efforts of both parties

increased the value of the stock.     Husband failed to establish or

otherwise quantify efforts made by third parties towards the



                                 13
increase in the stock value.

     Thus, based upon the record, we cannot say that the trial

court was plainly wrong in determining that the parties' joint

efforts enhanced the value of the stock.   For the reasons stated

above, we reverse the trial court's classification of the initial




                               14
200 shares of stock as marital, and affirm the trial court's

determinations on the remaining issues.
                                   Affirmed in part
                                   and reversed in part.




                               15
