                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Bumgardner
Argued at Alexandria, Virginia


STEVEN J. VANWORMER
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0926-05-4                                   JUDGE JAMES W. BENTON, JR.
                                                                     MAY 23, 2006
PAMELA A. VANWORMER


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                               Robert W. Woolridge, Jr., Judge

                 Edward V. O’Connor, Jr., for appellant.

                 David M. Levy (Surovell Markle Isaacs & Levy PLC, on brief), for
                 appellee.


       Steven VanWormer appeals the trial judge’s award of equitable distribution in his divorce

from Pamela VanWormer. He assigns three errors on appeal: that the trial judge erred (1) in his

Bradenburg calculation by including payments on the marital residence made post-separation,

(2) by not classifying the rent and rent differential received for the Colorado house as the

husband’s separate property, and (3) in failing to rule that the payments on the marital

residence’s mortgage from the rental income on the Colorado house were the husband’s separate

property. On cross-appeal, the wife contends that the trial judge erred in classifying the down

payment on the marital home as the husband’s separate property. We hold the trial judge erred

by factoring the post-separation mortgage payments into the Bradenburg calculation. We also

hold that the record demonstrates no error concerning the other issues raised on appeal.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          I. Background

       Prior to the marriage, the husband bought a house in Colorado in 1986. In 1990, he

moved to Los Angeles for a job. During most of that time, the Colorado house was a rental

property. The parties married September 18, 1993. According to the husband’s testimony, the

Colorado house earned rent of $460 a month from 1990 through 1996. In addition, the husband

testified he received a monthly “rental differential” payment from his employer, equal to the

difference between the rent he paid to live in Los Angeles and the rent earned from the Colorado

property.

       In March of 1997, the husband sold the Colorado property and deposited the proceeds of

the sale into the parties’ joint checking account. A week later, the husband withdrew $22,511

from the joint account and made a down payment on the parties’ marital residence, a house in

Fairfax, Virginia. During the marriage, the parties refinanced the original mortgage on the

marital residence, withdrew equity, and borrowed a second loan on the house.

       The parties separated October 11, 2002. The husband moved from the marital home, and

he later made three payments on the house mortgage. The wife paid the other monthly mortgage

payments. Over a year later, the husband filed a bill of complaint for divorce, and the wife filed

a cross-bill for divorce. Just before the hearing in November 2004, both parties made large

lump-sum payments to reduce the mortgage principal.

       At the completion of the evidence, the trial judge found that the down payment on the

Colorado house and the reduction of its mortgage prior to the marriage were the husband’s

separate property. The trial judge also found that payments on the Colorado house mortgage

during the marriage were marital property.

       In addition, the trial judge found that the down payment on the marital residence was

traceable to the sale proceeds of the Colorado house. Therefore, he found that the down payment

                                               -2-
on the marital residence was part marital and part separate property. The trial judge also found

that the parties had invested a total of $68,626 into the marital house as of the date of the

hearing: $22,511 down payment, $31,464 reduction of the original mortgage, and $14,651

reduction of the refinanced mortgage. He did not include the post-separation mortgage payments

in this calculation.

        Pursuant to an agreement of the parties, the trial judge deducted $45,000 from the equity

value of the house on the date of the hearing in order to reimburse the parties for the

post-separation lump-sum payments they made just before the hearing. Of the remaining

$22,010 post-separation reduction of the mortgage on the marital residence, $21,192 came from

the wife’s separate funds and $818 came from the husband’s separate funds. The trial judge

categorized these post-separation payments as separate contributions to the home, factoring them

into his determination of the parties’ shares in the property under a Bradenburg analysis.

        The issues on appeal all challenge the equitable distribution award. Equitable

distribution awards are reviewed on appeal under the abuse of discretion standard. We will only

reverse the trial judge’s award if “‘it appears from the record that [the judge] has abused his

discretion, that he has not considered or has misapplied one of the statutory mandates, or that the

evidence fails to support the findings of fact underlying his resolution of the conflict of the

equities.’” Hart v. Hart, 27 Va. App. 46, 53, 497 S.E.2d 496, 449 (1998) (quoting Robinette v.

Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633 (1990)).

                       II. The Bradenburg Calculation on the Marital Home

        Contending that the post-separation mortgage payments should not be used in a

Bradenburg calculation, the husband points to the Kentucky equitable distribution statute. The

husband reasons that our approval of Bradenburg, a Kentucky case, requires us to consider the

differences between the Kentucky equitable distribution statute and the Virginia statute in our

                                                -3-
application of the Bradenburg formula. He additionally argues that it would be contrary to

“public policy” and inequitable to include post-separation payments in the formula, which would

result in the wife realizing “a return of $99,831.00 on an investment of $21,192.00 over a

two-year period.” The wife argues in response that under Virginia law, the primary factor for the

trial judge to consider is whether payments are traceable to nonmarital funds. The wife agrees

with the husband’s analysis of the Kentucky statute but argues it is not persuasive. Citing to

unpublished cases, the wife argues that we have “implied” that the post-separation mortgage

payments can be included in a Bradenburg calculation.

       Under Code § 20-107.3, the trial judge in a divorce proceeding is to both classify and

value the property at issue. The dates of classification and valuation are not necessarily the

same. The default date of valuation is the date of the hearing. Code § 20-107.3(A). The

legislature left the date of classification up to the “determination of the courts,” but in “most

cases the appropriate date” is that of separation. Price v. Price, 4 Va. App. 224, 231-32, 355

S.E.2d 905, 909 (1987). The purpose of classifying the property as of the date of separation is to

allow the trial judge to divide only that property derived from the marital partnership. Brett R.

Turner, Equitable Distribution of Property § 5:28, at 427-28 (3d ed. 2005).

       In this case, the trial judge chose not to classify the marital home as of the separation

date. As a result, the parties’ payments made on the monthly mortgage payments after their

separation factored into the trial judge’s determination of how much each party had separately

contributed to the home. We note that the parties agreed, however, that the trial judge would not

factor in the lump-sum payments each party made on the mortgage post-separation, instead he

returned these sums out of the house equity to the parties.

       To allow post-separation mortgage reduction to affect the classification of the marital

residence would allow the spouse in better financial standing to skew classification of the marital

                                                 -4-
home in his or her favor. The spouse with more financial resources could disproportionately

reduce the mortgage, simultaneously increasing his or her separate share of the property. We

conclude that this result is one not contemplated as an appropriate result under the statutory

scheme. Thus, the trial judge erred by not classifying the home as of the parties’ separation.

       In addition, the trial judge erred mathematically in incorporating the post-separation

payments into the Bradenburg formula. In determining the parties’ “total investment” in the

marital home, the trial judge did not include their post-separation payments. However, he did

include those payments in computing the parties’ separate contributions.

       The wife argues that another error raised by the husband was not preserved for appeal.

The wife notes a separate error but argues that it was immaterial. On remand, the trial judge

should reconsider these calculations.

                                    III. The Colorado Property

       The husband contends that the trial judge erred by not crediting him for the rent and rent

differential from the Colorado house as his separate property. He argues that the rental income

was his separate property under Code § 20-107.3(A)(1) and the rent differential payments were

his separate property because they were not attributable to the personal efforts of either party.

The wife responds that the rental income was marital property because it was income derived

from marital property (the Colorado house). In addition, she argues that the rental differential

payments were also marital property because they were a form of compensation for his

employment.

       Code § 20-107.3(A)(1) provides in pertinent part, that “[i]ncome received from separate

property during the marriage is separate property if not attributable to the personal effort of

either party.” In essence, the husband argues that the rent income and differential are his

separate property because they are derived from the Colorado house. Consequently, the husband

                                                -5-
argues, because the rent proceeds on the Colorado house were more than the principal payments

on the mortgage, the evidence proved he paid the mortgage from the rent proceeds. He argues

the mortgage reduction was attributable to his separate property; thus the Colorado house was

entirely his separate property. The wife responds that they paid the mortgage payments on the

Colorado property out of the marital funds in the joint checking account. Although the husband

deposited the rental income into the joint account, she contends he did not sufficiently trace the

mortgage payments to the rent deposits. The wife also testified that rent was inconsistently

earned and never covered the monthly mortgage payment of $1,000.

       The trial judge did not specifically find that the rent income and rent differential benefit

were marital property. He only found that the reduction of the mortgage before the marriage

created the husband’s separate property and the reduction of the mortgage during the marriage

created marital property.

       The evidence proved the rent income was deposited in the couple’s joint checking

account during the marriage. The mortgage was paid out of that joint account. The rent

differential payment of $700 a month was deposited into the joint account along with the

husband’s employment income. During the marriage, the common thread between the Colorado

mortgage payments and the rent proceeds received was the joint checking account. Neither party

disputes that the joint account was a marital asset.

       Under the Bradenburg formula, non-marital contribution is “‘the equity in the property at

the time of marriage, plus any amount expended after marriage by either spouse from traceable

nonmarital funds in the reduction of mortgage principal, and/or the value of improvements made

to the property from such nonmarital funds.’” Keeling v. Keeling, 47 Va. App. 484, 490-91, 624

S.E.2d 687, 689-90 (2006) (quoting Hart, 27 Va. App. at 65, 497 S.E.2d at 505). By statute,

however, “[w]hen marital property and separate property are commingled by contributing one

                                                -6-
category of property to another, resulting 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.” Code § 20-107.3. Such loss of identity occurs “‘unless the

contributed property is retraceable and not a gift.’” Gilman v. Gilman, 32 Va. App. 104, 122,

526 S.E.2d 763, 772 (2000) (quoting Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240,

246 (1998)).

       “‘In order to trace the separate portion of hybrid property . . . a party must (1) establish

the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset.”

Id. Thus, for the husband to prove that the mortgage reduction on the Colorado house during the

marriage was his separate property, he must have sufficiently shown at trial that (1) the mortgage

payments were traceable to the rent proceeds, (2) the rent proceeds were his separate property,

and (3) the rent proceeds were not commingled with the rest of the funds in the joint account.

The husband testified that the house generated approximately $460 a month in rent, but the wife

testified that for some of the time relatives or friends lived in the house for free. The bank

statement records did not clarify how much the house generated as rent because the rent was

often deposited in combination with other checks. The monthly mortgage payment for the

Colorado house was $1,000. These facts do not conclusively trace the mortgage payments to the

rent proceeds. The trial judge, therefore, did not abuse his discretion by declining to find that the

husband paid the mortgage on the Colorado house out of his separate funds.

       The husband’s argument that the rent income was his separate property is unpersuasive

because he failed to prove the Colorado house was his separate property. This was the

foundation on which his argument rested. See Code § 20-107.3(A)(1). The rent differential

presents a more complex issue, because it is connected both to the husband’s employment and to

ownership of the Colorado house. Employment income earned during the marriage is considered

                                                 -7-
marital property, thus the employment aspect of the benefit suggests it is marital. See Amburn v.

Amburn, 13 Va. App. 661, 664, 414 S.E.2d 847, 849 (1992). In addition, as with the rent

income, the husband’s failure to establish his separate ownership of the house negates his claim

that the rent differential payments are his separate property as derivations of his ownership of the

house.

                           IV. The Down Payment on the Marital Home

         The wife contends that the down payment on the marital home was entirely marital

property because the husband wrote the check for the down payment out of the parties’ joint

checking account. She argues that the proceeds from the Colorado house sale lost its separate

identity after being deposited in the joint account and the husband did not adequately trace the

down payment to his separate funds. Alternatively, she argues that the husband gifted the money

to her. The husband counters that he adequately traced the down payment to the proceeds of the

Colorado property and he did not gift the money to the wife by merely depositing it in their joint

account.

         As discussed above, when different types of property are commingled, the contributed

property transmutes into the category of the contributed-to property, unless the contributed

property is retraceable and not a gift. See Code § 20-107.3; Gilman, 32 Va. App. at 122, 526

S.E.2d at 772. For the trial judge to find that the down payment on the marital home was

traceable to the proceeds of the sale of the Colorado house, the husband must have shown that

even though the sale proceeds were deposited in the marital checking account, they were

specifically used for the down payment on the marital home.

         The husband testified that the couple planned to use the deposit from the Colorado house

for their down payment. He explained that because the dates for closing on the Colorado house

and the marital home were so close in time, they worried that they may not get the funds from

                                                -8-
the Colorado house in time and had a contingency plan for how to pay the down payment if this

occurred. A week lapsed between the deposit of the sale proceeds and the check for the down

payment. The balance at the beginning of that week was significantly less than the amount of the

down payment. During that time, the parties withdrew large sums of money, but did not make

any large deposits.

        The husband presented adequate evidence to trace the down payment to the Colorado

house proceeds. The husband’s testimony, the short time window between the deposit and the

withdrawal, and the lack of other large deposits into the joint account sufficiently traced the

down payment to the sales proceeds from the Colorado house. The trial judge, therefore, did not

abuse his discretion in finding that the proceeds paid the down payment on the marital home.

        If one party successfully proves retraceability, the burden shifts to the other party to

prove that the separate property transmuted into marital property as the result of a gift. Von

Raab v. Von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997). To find that a gift

occurred, the party must have shown: “(1) the intention on the part of the donor to make a gift;

(2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee.” Rowe v. Rowe,

24 Va. App. 123, 137, 480 S.E.2d 760, 766 (1997). Here, the only element disputed by the

parties is that of the husband’s intent.

        Although the home was jointly titled, no presumption of gift arises from that fact alone.

See id. The only fact that the wife raises to evidence the husband’s donative intent is that he

deposited the Colorado property sale proceeds into the joint checking account, “making no

attempts to segregate any of the funds.” This argument fails for two reasons. First, depositing

the money into the joint account fulfills the element of delivery, a different element than that of

donative intent. Second, the statutory provision for retracing commingled property belies the




                                                 -9-
proposition that commingling different classifications of property in and of itself is enough to

demonstrate donative intent.

                                                 V.

       For these reasons, we affirm in part, reverse in part, and remand. The trial judge erred in

his classification of the marital home, but did not err in his classifications of the Colorado house

or the down payment on the marital home. The trial judge abused his discretion in the

classification of the marital home by including the post-separation mortgage payments in the

determination of separate contributions to the home. However, the trial judge acted

appropriately in finding that the reduction of the mortgage on the Colorado house was marital

property and that the down payment on the marital home, which was traceable to the Colorado

house proceeds, was partially the husband’s separate property.

                                                                      Affirmed, in part,
                                                                      reversed, in part,
                                                                      and remanded.




                                               - 10 -
