Opinion
Record No. 2225-93-2
Decided: October 25, 1994
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, William R. Shelton, Judge
Affirmed.
Robert E. Henley, III (Rothenberg, Henley Robertson, on briefs), for appellant.
Donald K. Butler (Ann Brakke Campfield; Morano, Colan Butler, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Thomas K. Daughtrey, Sr. (Mr. Daughtrey) appeals various aspects of a final decree of divorce relating to the classification and equitable distribution of property. Mr. Daughtrey alleges that the chancellor erred in classifying a mutual fund as marital rather than hybrid property, in classifying as marital property funds deposited into joint accounts and other jointly titled property, in classifying a particular automobile as marital property, and in overruling a motion to revalue certain automobiles classified as martial property but titled solely in Mr. Daughtrey's name. Finding no error, we affirm.
We begin by considering Mr. Daughtrey's assertion that certain portions of the 1991 amendment to Code Sec. 20-107.3 were remedial
clarifications of the law rather than substantive changes and should be applied retroactively to divorce actions filed before the effective date of the amendment. See Decker v. Decker, 17 Va. App. 12, 16-17, 435 S.E.2d 407, 411 (1993) (holding that a particular portion of the 1991 amendment was to be applied retroactively). Specifically, Mr. Daughtrey relies on the language added to the statute at subdivisions (A) (3) (f) and (g) for the proposition that when separate property is commingled, retitled, or transmuted into jointly titled property no presumption of gift arises and that a party may by a preponderance of the evidence show that the property should retain its original classification. Assuming, without deciding, that the new language should be applied retroactively, we hold that Mr. Daughtrey nonetheless failed to satisfy the requirements of the statute and that the chancellor's decision was not based upon an erroneous presumption of gift.
Mr. Daughtrey alleges that the chancellor erred in three different instances of classifying property as part of the marital estate. In the first two instances the property was jointly titled, while in the third Mr. Daughtrey held sole title to property acquired during the marriage. The matters involving the jointly titled property are distinguished on the basis that some of the property was alleged to be "hybrid property," that is, a commixture of separate and marital property, while the remainder was alleged to be pure separate property which had been retitled jointly or deposited in joint accounts. To sustain each of these allegations, Mr. Daughtrey was first required to prove by a preponderance of the evidence that the property was acquired as or in exchange for separate property.
Mr. Daughtrey alleges that all of the property in question can be traced back to gifts and bequests from his parents to him. We agree that under the provisions of Code Sec. 20-107.3 property acquired during the marriage by gift or bequest to the individual is deemed to be separate property. Code Sec. 20-107.3(A) (1). The record, however, is at best inconclusive. While Mr. Daughtrey undoubtedly received substantial amounts of property in gifts and bequests, he was unable to provide the chancellor with adequate documentary evidence tracing the currently held property to the property he acquired in this way. Instead, Mr. Daughtrey relied on a "mental record" and the temporal proximity of transactions to trace the receipt and exchange of the property.
In several instances the documentary evidence directly contradicted the proposition that Mr. Daughtery acquired and maintained the property as his separate property. For example, Mr. Daughtrey testified that he received stock from his parents titled solely in his name. Yet, in attempting to trace currently held property to the proceeds derived from the sale of that stock, Mr. Daughtrey could not explain why the proceeds were paid jointly to him and his wife.
We are unpersuaded that Mr. Daughtrey's "mental record" should serve as credible evidence to explain the gaps and contradictions in the direct evidence. The chancellor is vested with the power to make determinations of credibility, and we will not disturb those determinations on appeal absent manifest error. Hughes v. Gentry, ___ Va. App. ___ ___, 443 S.E.2d 448, 452-53 (1994).
Furthermore, in light of Mr. Daughtrey's testimony that he intended his investments to "provide for my and my wife's retirement," we cannot say that the chancellor erred in determining that, regardless of the origin of the capital used to acquire it, the investments were treated by Mr. Daughtrey as marital property. It does not appear from the record that the chancellor presumed a gift from the mere joint titling of property. Rather, in reviewing the evidence the chancellor found that Mr. Daughtrey's donative intent was clear from his own testimony. Reviewing the evidence in the light most favorable to the party prevailing below, Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988), we cannot say that finding was in error.
Finally, Mr. Daughtrey asserts that the chancellor erred in overruling his motion to revalue certain automobiles which were classified as martial property but were titled solely in his name. Mr. Daughtrey asserts that the value of these automobiles was greatly diminished through neglect while the vehicles were under his wife's control. The chancellor was within his discretion to retain the original valuation of the property. See Price v. Price, 4 Va. App. 224, 232, 355 S.E.2d 905, 909-10 (1987). We cannot say that the evidence of alleged change in value was so overwhelming as to render the chancellor's action an abuse of his discretion.
For these reasons, we affirm the decisions of the chancellor.
Affirmed.