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Cirrito v. Cirrito11/23/2004
the husband. Where the record contains credible evidence in support of the findings made by the court, we may not retry the facts or substitute our view of the facts for those of the trial court. Ferguson v. Stafford County Dep't of Social Services, 14 Va. App. 333, 336, 417 S.E.2d 1, 4 (1992). Here, the trial court carefully considered the claims involved in the divorce proceedings, as well as the husband's success at trial, the wife's refusal of a reasonable offer of settlement, and the wife's injudicious handling of discovery. The court simply ordered that wife pay her own attorney's fees. However, since the trial court, in part, denied wife's attorney's fees because husband substantially prevailed below, and we are reversing the trial court on several significant issues, we remand for the trial court to reconsider the issue of an award of attorney's fees for the previous proceeding and to determine whether additional attorney's fees should be awarded.
V. NON-GIFTED PROPERTY
During the marriage, the husband purchased four properties with his separate funds and titled each property jointly in both husband's and wife's names. He testified that the purpose for joint titling was for protection against creditors. He said he never intended for wife to have any interest in the property upon a divorce. With regard to the Nantucket property, he denied telling wife the property was her Christmas present. Wife claims that joint titling of the real estate for "asset protection" establishes his intent to gift her an interest in that property. Husband claims wife did not meet her burden of proving donative intent and that the real estate remains his separate property.
Code § 20-107.3(A)(3)(f) provides:
When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.
Here, the only issue is whether the retitling of the properties in question were gifts. If so, the properties are marital property.
A gift is not presumed when existing property is retitled into joint ownership. Code § 20-107.3(A)(3)(g). The burden of proof that the transfer was a gift is upon the party seeking to establish the gift by clear and convincing evidence. Utsch v. Utsch, 266 Va. 124, 128, 581 S.E.2d 507, 508 (2003). In order to prove an inter-spousal gift, the wife must prove the husband's donative intent and the nature and extent of that intent. Lightburn v. Lightburn, 22 Va. App. 612, 617, 472 S.E.2d 281, 283 (1996); Theismann v. Theismann, 22 Va. App. 557, 565-66, 471 S.E.2d 809, 813, aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en banc).
On appeal, we view the evidence in the light most favorable to the prevailing party. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the evidence establishes that the husband titled the properties in joint names to protect his personal assets. He testified that he felt it was wise to title the homes in both names to guard against creditor seizure. Although the wife claimed that the properties were gifts to her, the trial court was free to disregard her testimony, which it did. The trial judge heard the testimony of the witnesses and observed their demeanor. At the conclusion of the evidence the court found that wife's testimony was not credible and husband's was. "'In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of w
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