Anderson v. Anderson

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata

Argued at Richmond, Virginia

DANIEL LAWSON ANDERSON

OPINION BY

v. Record No. 0691-98-2 JUDGE ROSEMARIE ANNUNZIATA

MAY 11, 1999

CHERYL KERNER ANDERSON

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Herbert C. Gill, Jr., Judge

Lawrence D. Diehl (Susanne L. Shilling;

Shilling & Associates, on brief), for

appellant.

Julie M. Cillo (Phoebe P. Hall, on brief),

for appellee.

In this appeal, Daniel Lawson Anderson ("husband") argues

the trial court erred by: 1) excluding the testimony of Dr.

Arnold Stolberg under the confidentiality provisions of Code

§ 8.01-581.22; 2) failing to grant him joint legal custody of

the parties' child, Elyse; 3) denying his request for additional

holiday visitation; 4) classifying two IRA funds as marital

property; 5) failing to order or address the issue of the

division of tangible personal property in its equitable

distribution award; and 6) failing to award him an equitable

distribution exceeding one-half of the marital property. Wife

alleges cross-error, contending the trial court erred in finding

that husband did not waste marital funds in an IRA account with

Crestar Bank. Both parties ask for an award of attorneys’ fees

incurred on appeal; husband also asks for costs. For the

reasons stated below, we reverse in part and affirm in part.

I.

BACKGROUND

We review the evidence in the light most favorable to wife,

the party prevailing below and grant all reasonable inferences

fairly deducible therefrom. See Gamer v. Gamer, 16 Va. App.

335, 340, 429 S.E.2d 618, 622 (1993).

The parties married on October 20, 1984 and had one child,

Elyse, born November 7, 1989. The parties separated on January

31, 1996. Wife filed a bill of complaint for divorce on

February 9, 1996, charging cruelty and constructive desertion.

Husband's cross-bill alleged desertion.

The trial court entered preliminary orders regarding

custody, child support, and the preservation of the parties'

assets on February 23, May 16, and November 7, 1996, and

February 13, 1997, respectively.

On May 28, 1997, the trial court issued a letter opinion

granting wife a no-fault divorce. It also awarded her sole

legal custody of Elyse with visitation to husband based on an

existing schedule; ruled that husband's American Funds and

Crestar IRA accounts were marital property; found that husband

did not meet his burden of tracing as to the funds in these

accounts; found that husband used marital funds in the Crestar

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account for legitimate post-separation expenses; and awarded an

equal division of marital property. Upon motions to reconsider

its initial ruling, the court issued a second letter opinion on

October 13, 1997, again holding that the American Funds and

Crestar IRA accounts were marital property and that husband had

failed to satisfy his burden of proof on the retracing issue.

The court entered a final decree of divorce, incorporating its

previous findings, on February 26, 1998.

II.

EXCLUSION OF DR. STOLBERG'S TESTIMONY

Husband argues the trial court erred by excluding the

testimony of Dr. Arnold Stolberg pursuant to the confidentiality

provisions of Code § 8.01-581.22, having concluded that he acted

as a mediator in the custody dispute between the parties. 1 We

agree and reverse on that ground.

Shortly after their separation in January 1996, the parties

agreed to meet with Dr. Stolberg, a licensed clinical

psychologist. Dr. Stolberg subsequently prepared a report,

recommending the court award joint legal and physical custody of

Elyse to the parties based on information gathered over the

course of the parties' sessions. Although husband sent this

1

Code § 8.01-581.22 states that "[a]ll memoranda, work

products and other materials contained in the case files of a

mediator or mediation program are confidential." Code

§ 8.01-581.21 defines "mediator" as "an impartial third party

selected by agreement of the parties to a controversy to assist

them in mediation."

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report to the court, the report was not admitted into evidence.

When husband proposed to have Dr. Stolberg testify with respect

to his findings, wife objected, contending Dr. Stolberg acted as

a mediator between the parties and was thus precluded from

testifying under the confidentiality provisions of Code

§ 8.01-581.22.

Wife filed a brief setting forth her position on the issue. 2

In her brief, wife proffered that Dr. Stolberg suggested the

parties use him to "mediate their parenting arrangements,

advising them that he had worked out his own personal custody

arrangements in mediation and that it was a good way to resolve

things." Wife also stated that Dr. Stolberg "worked with [the

parties] to help them work out an agreement as to how they would

parent their child as separated parents, and [wife] relied on

him as a neutral mediator during this process." The only other

evidence wife offered to show that Dr. Stolberg acted as a

mediator were documents describing him as such, including: 1) a

letter from husband suggesting they make "use of Dr. Stolberg to

mediate non-monetary issues between [them]"; 2) a billing

statement provided by husband that describes Dr. Stolberg's

services as "Child Counseling/Psychological Evaluation/Divorce

2

The parties' evidence on this matter originates exclusively

from written documentation submitted to the court in support of

their respective positions; the court heard no oral testimony on

the issue. The court entered an order disposing of this issue

based on the "written argument" of counsel.

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Mediation"; and 3) a proposed order prepared by husband's

counsel that describes the parties' meetings with Dr. Stolberg

as "mediation." 3 Eventually, wife discontinued the sessions

because she felt Dr. Stolberg was "pressing her to agree to

matters she did not feel were in her child's best interest

. . . ."

Husband's written proffer filed with the court reflects

discussions held with Dr. Stolberg respecting his role in the

case. Dr. Stolberg explained that he is a licensed

psychotherapist who does psychotherapy, not mediation.

According to husband, wife was first to consult Dr. Stolberg, a

specialist in counseling children of divorcing parents, for the

purpose of providing counseling to the parties' child. Dr.

Stolberg asked to interview both parents in support of his

counseling goals for the child. Over a period of eight months,

the parties attended twenty-eight sessions with Dr. Stolberg,

either individually or together. Some of the sessions were held

with the child and one of the parents in attendance. Dr.

Stolberg indicated that "what he does is to teach parents how to

work together to promote their child's development and to

minimize problems that already exist and that his work is

3

The order, which was never entered, states: This day came

the parties in person, by counsel, and having representing [sic]

to the Court that certain matters have been agreed to between them

in mediation, respecting the care and custody of their daughter

. . . ."

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exclusively focused around remediation of problems and

prevention of future problems." He characterized mediation as

"directed to equity and fairness in the resolution of disputes"

and distinguished it as a process in which the psychological

adjustment of the parties is not a consideration. According to

Dr. Stolberg, the parties were aware that he was not mediating

their disputes "at all times in their meetings with him."

Barbara Hulburt, an expert in mediation, filed a letter

with the court in response to a request made by husband's

attorney in which she discussed the differences between

mediation, as defined by the Code of Virginia, and therapy.

Hulburt wrote:

[a] mediator serves only as facilitator,

that is, that the mediator is in charge of

the process and the parties in control of

the subject matter[, that] mediation is

characterized by a limited number of

meetings instead of an on-going

relationship[, and that] mediation is

defined through a series of discre[te]

stages which make up a very specific

process. . . . [F]undamentally, . . . a

mediator is a process expert. The parties

to the dispute do not seek the mediator out

because of any substantive expertise--in

fact, it would be inappropriate for a

mediator to offer any opinion with respect

to the "best" outcome of the mediation.

As a general principle, evidence that tends to prove a

matter which is properly at issue in a case is generally

admissible. Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893,

896 (1983) ("Any fact, however remote, that tends to establish

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the probability or improbability of a fact in issue is

admissible."). See Charles E. Friend, The Law of Evidence in

Virginia § 11.2 (4th ed. 1993). Such evidence "should be

excluded only when its probative value is outweighed by policy

considerations which make its use undesirable in the particular

case." Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d

310, 311 (1995). See Friend, supra at § 11.2. Responsibility

for evaluating whether the probative value of evidence is

outweighed by policy considerations mitigating against

admissibility rests within the discretion of the trial court.

See Farley, 20 Va. App. at 498, 458 S.E.2d at 311-12. The party

seeking to establish the existence of a privileged communication

carries the burden of proof. See Commonwealth v. Edwards, 235

Va. 499, 509, 370 S.E.2d 296, 301 (1988) (stating that the

proponent of an attorney-client privilege has the burden of

proving "that an attorney-client relationship existed, that the

communications under consideration are privileged, and that the

privilege was not waived"); Robertson v. Commonwealth, 181 Va.

520, 540, 25 S.E.2d 352, 360 (1943) (finding that the party

seeking to avoid production of a document on the ground that it

is a privileged communication has the burden of establishing his

contention).

We find that wife did not satisfy her burden of proving the

communications with Dr. Stolberg were privileged because the

evidence fails to support the trial court's conclusion that Dr.

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Stolberg acted as a mediator in the dispute between the parties

on the issues of custody and visitation. The only evidence wife

presented on the issue of Dr. Stolberg's role was her

understanding of that role and the characterization she or

others had placed on it. Absent from wife's case was

substantive evidence from which the trial court could conclude

that Dr. Stolberg used a facilitative, rather than a

therapeutic, problem solving methodology. See Code

§ 8.01-581.21 (defining "mediation" as a process by which a

mediator assists and facilitates two or more parties to a

controversy in reaching a mutually acceptable resolution of a

controversy). Wife's description of Dr. Stolberg as a mediator

cannot substitute for evidence that he, in fact, acted as a

mediator in the parties' custody dispute. See Edwards, 235 Va.

at 509, 370 S.E.2d at 301.

Furthermore, husband's evidence regarding Dr. Stolberg's

role shows it to be wholly inconsistent with mediation. Dr.

Stolberg described the sessions with the parties and their child

as psychotherapeutic, the focus of which was directed to the

child's developmental needs and the parties' relationship with

her. To that end, a wide variety of psychological tests and

evaluations were administered to husband. Dr. Stolberg

described his work as "most specifically addressed toward

remediation in this case because of the child's increased

anxiety," having identified "four pathogenic processes which

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concerned him as a psychotherapist." He also focused on

addressing the relationship between wife and child through the

therapeutic process.

Dr. Stolberg's role as described contrasts broadly with

that delineated in Hulburt's letter:

In contrast [to a mediator], a therapist is

sought out for the knowledge, experience,

and expertise he or she brings to the

subject matter of the dispute. While a

therapist may do problem-solving work on

particular issues with clients, it is based

on the input of the therapist as an expert

in the subject matter of the particular

problem (relationships, psychological

development, child rearing, etc.). The

mediator, as facilitator, may help the

parties see that they need to seek out such

expert advice . . . but does not offer such

advice himself.

* * * * * * *

In a situation in which a subject-matter

expert (i.e. a psychologist, therapist, or

social worker) is sought out for the purpose

of giving advice and counsel with respect to

a particular problem, it would be

inappropriate to label the work done with

that expert as mediation if: (a) it

involved advice from the mental health

professional; (b) it was entered into as an

evaluation or as therapy; (c) it was entered

into without any formal agreement to mediate

or any other indication that the parties and

the therapist considered it a mediation.

Here, the evidence, including wife's testimony that Dr. Stolberg

was "pressing" her to reach agreement on matters relating to

Elyse, shows that Dr. Stolberg's relationship with the parties

was that of therapist, not mediator. We find no foundation for

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the trial court's conclusion that Dr. Stolberg mediated the

parties' dispute.

For these reasons, we find the trial court erred in

excluding Dr. Stolberg's testimony pursuant to Code

§ 8.01-581.22. Because Dr. Stolberg’s expected testimony

encompassed matters relating to the psychological status of the

parties and the child, the parties' relationship with the child,

the parties' parenting styles, and other issues relevant to

custody and visitation, we find the error was not harmless. See

Edwards v. Commonwealth, 10 Va. App. 140, 143, 390 S.E.2d 204,

206 (1990). Accordingly, we reverse and remand. 4

III.

CLASSIFICATION OF IRA ACCOUNTS

Husband next contends the trial court erred by classifying

two IRA accounts, one with American Funds and the other with

Crestar, as marital property. Husband contends the American

Funds account is entirely his separate property and the Crestar

account is part marital and part separate property. Husband

admits the American Funds and Crestar accounts were established

during the parties' marriage and prior to their separation.

Husband contends, however, he presented sufficient evidence to

4

Because the decision of the trial court is reversed and

remanded for the purpose of considering erroneously excluded

evidence on the issues of custody and visitation, we do not reach

husband's allegations of error regarding the court's disposition

of these issues.

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trace the funds in the American Funds and Crestar accounts back

to two pre-marital Keogh accounts, which are presumed to be

separate property. See Barnes v. Barnes, 16 Va. App. 98, 104,

428 S.E.2d 294, 299 (1993). We disagree.

At trial, husband testified that he opened two Keogh

accounts with Heritage Savings & Loan Association prior to

marrying wife. Husband then testified to a series of

post-marriage transfers and deposits involving the Heritage

accounts. These transactions involved the creation of several

new accounts and the movement of these funds from one account to

the next before they ultimately reached the American Funds and

Crestar accounts at issue here. Husband admitted commingling

his allegedly separate funds with marital funds over the course

of the marriage. In support of his testimony, husband relied on

a flow chart, which the court received as demonstrative

evidence, and certain financial documents to trace the source of

his allegedly separate funds in the American Funds and Crestar

accounts back to his pre-marital Keogh accounts. Husband

introduced the chart and financial documents as Exhibit 8 at a

deposition on April 9, 1997, explaining what they purported to

show at that time.

We find no error in the trial court's conclusion that

husband presented insufficient evidence of tracing and no error

in the court's classification of the funds at issue as marital

property. Husband failed to prove by a preponderance of the

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evidence that any portion of the funds in the American Funds and

Crestar accounts are his separate property. See Code

§ 20-107.3(A)(3)(d)-(e); Barker v. Barker, 27 Va. App. 519, 531,

500 S.E.2d 240, 246 (1998); Rahbaran v. Rahbaran, 26 Va. App.

195, 207, 494 S.E.2d 135, 141 (1997).

We find it unnecessary to recite every step of the

complicated series of transactions leading to the deposit of the

funds at issue into the American Funds and Crestar accounts.

For the purposes of our decision, it is sufficient to recite the

following relevant evidence pertaining to each account.

As to the American Funds account, husband claims he

established the account on May 23, 1986 with a roll over deposit

of $5,000 of allegedly separate funds from another IRA account

with Investors Savings. Husband contends he made no further

deposits or contributions to the American Funds account after

1986 and claims its balance, $13,831.26, as separate property,

the result of passive interest earnings. Assuming without

deciding that appellant's claim regarding the deposit of $5,000

of separate property is true, the evidence does not support his

assertion that the balance of the American Funds account is his

separate property.

Before the trial court, husband offered only one financial

statement showing the activity in the American Funds account

after 1986. This statement shows the account's activities

during 1996 and a balance of $13,831.26 on December 31, 1996.

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Husband presented no other statements regarding the activity in

this account over the preceding nine years of its existence,

including any statement showing the rate of interest that it may

have earned. Thus, husband's claim that no other contributions

were made to the account and that the account's growth was

solely attributable to passive interest earnings rested on his

testimony and the demonstrative flow chart alone. "It is well

established that the trier of fact ascertains a witness'

credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony." Street v. Street, 25 Va. App. 380, 387,

488 S.E.2d 665, 668 (1997) (en banc). Furthermore, the flow

chart, as a demonstrative, or illustrative, exhibit that played

no actual part in the events before the court and that husband

offered to explain and clarify his testimony, had no independent

probative value. See Kehinde v. Commonwealth, 1 Va. App. 342,

347, 338 S.E.2d 356, 358 (1986) (approving of the use of

illustrative evidence "to clarify [a] witness' explanation and

to insure a common understanding between the witness and [the

trier of fact] as to the events which took place"); Saunders v.

Commonwealth, 1 Va. App. 396, 397-98, 339 S.E.2d 550, 551 (1986)

(indicating that photographs introduced for the purpose of

illustrating a witness' testimony do not constitute substantive

evidence in the case); Friend, supra at § 13.1 (defining

illustrative evidence as that which "played no part in the

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events of the case but which is introduced to assist the jury in

understanding what happened in the case" and "to demonstrate the

meaning of a witness' testimony . . . "). See also United

States v. Paulino, 935 F.2d 739, 752 (6th Cir.) (holding that

charts summarizing documents or testimony may be admitted as

demonstrative evidence under Rule 611(a) and "should be

accompanied by a limiting instruction which informs the jury of

the summary's purpose and that it does not constitute

evidence"), cert. denied, 502 U.S. 914 (1991); Sykes v. Floyd,

308 S.E.2d 498, 499 (N.C. Ct. App. 1983) (stating that

photographs introduced to illustrate testimony are not

admissible as substantive evidence); Smith v. Ohio Oil Co., 134

N.E.2d 526, 530 (Ill. App. Ct. 1956) ("Demonstrative evidence

. . . is distinguished from real evidence in that it has no

probative value in itself, but serves merely as a visual aid to

the jury in comprehending the verbal testimony of a witness.").

It follows that the trial court was also entitled to give the

flow chart no weight. See Jurado v. Jurado, 892 P.2d 969,

975-76 (N.M. Ct. App. 1995) (finding that any error in the

admission of demonstrative exhibits calculating the rates of

return on two properties was harmless because the trial court

did not rely on the exhibits in determining an award). In

short, the trier of fact determines the credibility and weight

of the evidence. It was therefore entitled to give no weight to

husband's testimony that the funds in the American Funds account

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were maintained as separate property, particularly in the

absence of documentary evidence establishing the integrity of

the funds as separate property. We accordingly find no error in

the court's refusal to classify the American Funds account as

husband’s separate property.

As to the Crestar account, husband opened a new account

with Investors Savings in 1988 with $5,070.88 of admittedly

marital property. Husband offered an annual financial statement

showing the initial deposit and appellant's interest earnings in

1988. Subsequently, Crestar Bank bought Investors, thus

converting husband's account into the Crestar account at issue.

Husband contends, in 1989, he rolled over the balance of an IRA

account with Dominion Federal Savings, containing marital and

separate funds, into the Crestar account. 5 At the end of 1996,

the Crestar account contained $18,744.92, of which husband

claims $3,561.40 as separate property, the portion of separate

property contributed from the Dominion Federal account plus

passive interest earnings. Husband offered one other statement,

which verifies the balance of the Crestar account at the end of

1996 and shows the account's activities during the last quarter

of 1996, but nothing further.

5

Husband rolled over $6,752.95 from the Dominion Federal

account into the Crestar account, of which he claims $2,263.37 was

his separate property.

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Husband's tracing evidence with respect to this claim

suffers the same infirmity as that which exists with respect to

his claim of separate property in the American Funds account.

We assume for the purpose of this discussion that a portion of

the funds husband rolled over from the Dominion Federal account

were sufficiently identified as separate. No documentation,

however, shows that the claimed separate funds were deposited in

the Crestar account in 1989. Moreover, other than the two

statements showing the account's initial deposit in 1988 and the

account's balance at the end of 1996, respectively, husband

offered no documentation of the activity within the

Investors/Crestar account, including what rate of interest the

account might have enjoyed. Thus, other than husband's

testimony and his flow chart, there is no evidence that husband

deposited separate funds from Dominion Federal into the Crestar

account, no evidence of the activity within the Crestar account

for a period of nearly eight years, and no evidence

corroborating husband's testimonial evidence that the growth of

the Crestar account after 1988 was solely passive in nature, the

result of interest earnings. In short, there is no basis upon

which to identify what portion of this account was husband's

separate property at the time of the equitable distribution

hearing.

For the foregoing reasons, we affirm the trial court's

finding that husband failed to meet his burden to trace the

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funds in the American Funds and Crestar accounts to a

contribution of separate property and the court's classification

of these funds as marital property.

IV.

TANGIBLE PERSONAL PROPERTY

Husband next contends the trial court erred by failing to

order or address the division of tangible personal property in

its equitable distribution award. We find no merit in husband's

contention.

During depositions, the parties stipulated that they had

"determined not to attempt to resolve the division of tangible

personalty within the home at this time . . . and that [they

would] not present additional evidence regarding the value to

th[e] Court." The parties further agreed to "work out the

division of all the tangible personalty."

However, during the parties' final appearance before the

court on April 22, 1997, husband's counsel asked the court to

equitably distribute the parties' tangible personal property.

Husband's counsel presented a document to the court itemizing

the personal property of the parties, appraising the property's

value, and presenting a proposed distribution plan. 6 In response

to husband's document, the court noted:

More and more in these cases I'm getting

mixed signals. The problem is those mixed

6

This document, however, was not admitted into evidence.

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signals result in equities to one side or

the other or both. I'm going to put counsel

on notice right now, I'm going to deal with

the personal property with the evidence that

I have before me.

* * * * * * *

As I recall during the depositions, counsel

agreed, they stated that they would deal

with personal property outside the Court's

forum, but today I get this and I note --

and by this I'm talking about the handout

that was provided by counsel for [husband].

It deals with the appraisals from Owen

Valentine and other appraisals. I don't

know what I'm supposed to work with that or

not work with that.

Apparently attempting to accommodate husband's request, the

court invited the parties to file a "wish list" within five

days, summarizing their positions as to the distribution of

personal property. The court stated, "Give me some direction on

what you want me to do with this personal property, . . . either

deal with it or not deal with it, that's fine, but I can't deal

with mixed signals." The parties then had the following

dialogue:

[WIFE'S COUNSEL]: I think counsel has

agreed on the record that we will not have

the Court value the personal property and

that we will divide it through the

parties. . . .

THE COURT: I need to know what you want me

to do, and again, I'm getting mixed signals.

[HUSBAND'S COUNSEL]: I think we need to

talk about it.

THE COURT: Let me know in five days what

you want to do . . . .

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Within the allotted time, husband filed a "Request for

Settlement" that proposed three alternative distributions of the

parties' assets, including tangible personal property. The

record contains no evidence of what, if anything, wife filed

with the court.

In its letter opinion of May 28, 1997, the court found that

the parties agreed they would work out the equitable

distribution of personal property, citing the parties'

stipulation. Although noting the parties had been unable to

agree on the distribution of personal property, the court

declined to address the issue, stating it would not include

personal property in its equitable distribution because "the

parties have failed to submit sufficient evidence." The court

reiterated this finding in its final decree.

Although Code § 20-107.3 mandates that trial courts

determine the ownership and value of all real and personal

property upon request of either party, "'[t]he burden is always

on the parties to present sufficient evidence to provide the

basis on which a proper determination can be made, and the trial

court in order to comply . . . must have the evidence before it

. . . to grant or deny a monetary award.'" Bowers v. Bowers, 4

Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (quoting Hodges v.

Hodges, 2 Va. App. 508, 516, 347 S.E.2d 134, 139 (1986)). When

the parties have had a reasonable opportunity to provide the

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necessary evidence to prove the class or value of property but

have failed to do so by lack of diligence, a court may make a

monetary award without giving consideration to the class or

value of every item of property. See id. at 618, 359 S.E.2d at

551. The court must give parties reasonable opportunity to

develop and present evidence regarding the class and value of

property, must not arbitrarily refuse to classify or value

property when sufficient evidence exists, and must not

arbitrarily reject credible evidence of value. See id.

Here, the parties were given opportunity over the course of

the proceedings to present evidence regarding the class and

value of their tangible personal property. The parties agreed,

however, to withdraw this issue from the court, to reach

agreement themselves with respect to distribution, and to

present no evidence on the issue. At the latest possible stage

of the proceedings, husband attempted, over wife's objection, to

renege on the parties' stipulation, asking the court to classify

and value the parties' personal property. The court properly

declined to do so. See Bauer v. Harn, 223 Va. 31, 36, 286

S.E.2d 192, 194 (1982) ("Absent a challenge to the authority of

an attorney to make them, stipulations are definitive of

issues."); Southeastern Tidewater Area Manpower Authority v.

Coley, 221 Va. 859, 862, 275 S.E.2d 589, 591 (1981) (stating

that stipulations should be encouraged and "that a party should

not be permitted to assert at trial a contention which is

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contrary to a stipulation to which that party, by counsel or

otherwise, has freely and in good faith agreed"); McLaughlin v.

Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970) (citing

favor for the use of stipulations and other pretrial techniques

designed to narrow the issues and expedite trial or settlement

of litigation).

Based on their agreement to withdraw the distribution of

personal property from the court's consideration and resolve the

issue themselves, the parties presented no evidence of the items

to be distributed or their value. In the absence of evidence

upon which to base an equitable distribution of the parties'

tangible personal property, no distribution could be made and

the court did not err in failing to address the issue. See

Bowers, 4 Va. App. at 619-20, 359 S.E.2d at 552. Under the

circumstances of this case, we find that the court did not abuse

its discretion in deciding "to deal with the personal property

with the evidence . . . before" it and by declining to relieve

the parties of their proffer to reach agreement with respect to

this issue. We accordingly affirm the court's decision on this

issue.

V.

EQUITABLE DISTRIBUTION

Husband next contends the trial court erred by failing to

award him an equitable distribution exceeding one-half of the

parties' marital property. Husband asserts the trial court did

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not correctly apply the statutory factors set forth in Code

§ 20-107.3(E).

In its letter opinion of May 28, 1997, the court equally

divided the marital assets and liabilities of the parties,

stating it "considered the factors in Code § 20-107.3(E) in

light of the evidence." The court provided no particular

findings regarding the applicable factors.

Husband cites the following evidence in support of his

position: 1) his ownership and extensive improvements to the

parties' first residence prior to marriage; 2) his contribution

of eighty-nine percent of the parties' salaried income; 3) his

testimony that he performed fifty percent of the non-monetary

contributions to the well-being of the family; and 4) his

post-separation monetary contributions to the parties' property

in the sum of $19,830.

Wife responds the court based its decision on substantial

evidence and in proper consideration of the statutory factors.

Wife asserts: 1) she stayed home for several years, by

agreement, to care for Elyse; 2) her time at home enabled

husband to focus on his career and to travel for extended

periods; 3) she contributed to the maintenance and care of

marital property, including the marital home; 4) she made

monetary contributions prior to the birth of Elyse; and 5)

husband treated her abusively throughout their marriage.

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"In reviewing an equitable distribution award on appeal, we

have recognized that the trial court's job is a difficult one,

and we rely heavily on the discretion of the trial judge in

weighing the many considerations and circumstances that are

presented in each case." Klein v. Klein, 11 Va. App. 155, 161,

396 S.E.2d 866, 870 (1990). Unless the record shows that the

judge has abused his or her discretion by misapplying the

statutory factors, the judge's determination will not be

reversed on appeal. See id.

Based on our review of the record, we find that the trial

court did not abuse its discretion by equally distributing the

marital property in this case. See Code § 20-107.3(E) (stating

the court shall consider, inter alia, the duration of the

parties' marriage, the monetary and non-monetary contributions

of each party to the well-being of the family, the monetary and

non-monetary contributions of each party to the acquisition,

care, and maintenance of marital property, and the circumstances

contributing to the dissolution of the marriage). The parties

were married for over twelve years before permanently separating

in 1996. For the first four years of their marriage, wife

worked full-time outside the home. In 1988, wife left her job

to increase the probability of becoming pregnant. After the

birth of Elyse in November 1989, wife remained at home to care

for Elyse until July 1996. Husband continued working,

increasing his personal income during the years wife stayed at

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home. It is undisputed that, in connection with his employment,

husband spent significant periods of time away from his family

after Elyse's birth. Further, the parties stipulated that

wife's "income capacity" would be higher today if she had

continued working. Although the parties' testimony conflicted

as to the share of household responsibilities that each assumed

during their marriage, the credibility of witnesses and the

weight to be given their testimony is a matter committed to the

sound discretion of the trial court. See Street, 25 Va. App. at

387, 488 S.E.2d at 668; see also Hurt v. Hurt, 16 Va. App. 792,

799, 433 S.E.2d 493, 498 (1993) (finding the trial court did not

err in choosing to accept the testimony of husband's witness,

notwithstanding conflicting testimony of wife's witness, when

determining classification of property). Similarly, the trial

court was entitled to find wife's testimony regarding husband's

abusive treatment during the marriage credible and to reject

husband's testimony regarding wife's failure to provide

emotional support or household services in determining the

circumstances leading to the dissolution of the marriage that

affected the value of the marital estate. See Street, 25 Va.

App. at 387, 488 S.E.2d at 668. Thus, our review of the record

reveals sufficient evidence on which the trial court could have

based its equal distribution of the parties' marital property.

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VI.

ALLEGED WASTE OF MARITAL FUNDS BY HUSBAND

Wife contends the trial court erred in ruling that husband

did not waste $15,183.52 of marital funds in the Crestar IRA

account after their separation on January 31, 1996. We find

this argument to be without merit.

Husband's evidence showed that the Crestar account

contained $18,744.92 at the end of 1996. Husband acknowledges

that he withdrew $15,288.58 of marital funds from the Crestar

account on March 10, 1997 and testified that he deposited these

funds into a savings account with Crestar Bank on the same day.

Husband further testified he subsequently spent these marital

funds to pay marital debts, including two mortgages and two

credit card bills, and legal expenses incurred by him during the

parties' divorce proceedings. In support of his testimony,

husband submitted two lists detailing each expenditure as well

as copies of various financial statements, receipts, money

orders, and cashier's checks, which verified husband's lists and

testimony regarding how these funds were spent.

Waste or dissipation of assets occurs when "one spouse uses

marital property for his own benefit and for a purpose unrelated

to the marriage at a time when the marriage is undergoing an

irreconcilable breakdown." Amburn v. Amburn, 13 Va. App. 661,

666, 414 S.E.2d 847, 850 (1992). As husband does not dispute

that he withdrew the marital funds at issue and put them into an

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account under his sole dominion and control, husband had the

burden to establish by a preponderance of the evidence that the

funds were used for a proper purpose. See Alphin v. Alphin, 15

Va. App. 395, 402, 424 S.E.2d 572, 576 (1992). "Once the

aggrieved spouse shows that marital funds were withdrawn or used

after the breakdown, the burden rests with the party charged

with dissipation to prove that the money was spent for a proper

purpose." Clements v. Clements, 10 Va. App. 580, 587, 397

S.E.2d 257, 261 (1990). We have previously held that marital

funds spent for living expenses, attorney's fees for the divorce

proceedings, and other necessities of life while the parties are

separated do not constitute dissipation. See Decker v. Decker,

17 Va. App. 12, 19, 435 S.E.2d 407, 412 (1993); Alphin, 15 Va.

App. at 403, 424 S.E.2d at 576.

Here, husband provided sufficient evidence for the court to

conclude that he did not waste $15,288.58 of marital funds in

the Crestar account. Husband provided the court with two

detailed lists showing each expenditure of the funds at issue.

These expenditures included payments on two mortgages and two

credit card debts incurred during the marriage and payment of

husband's legal fees incurred over the course of the divorce

proceedings. Husband submitted financial documentation

supporting each and every expenditure detailed by his lists and

by his testimony. Wife presented no evidence to suggest the

Crestar funds were used for any other purpose. The trial court

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found husband's evidence credible, stating in its final decree

that husband "proved he spent these proceeds on legitimate

post-separation expenses." As the court's ruling is supported

by credible evidence, that ruling will not be disturbed on

appeal. See Alphin, 15 Va. App. at 403, 424 S.E.2d at 576;

Amburn, 13 Va. App. at 667, 414 S.E.2d at 851.

For the foregoing reasons, we reverse the trial court's

ruling excluding Dr. Stolberg's testimony as privileged under

Code § 8.01-581.22 and remand the issues of custody and

visitation for renewed consideration in light of this holding.

As to husband and wife's remaining allegations of error, we

affirm the trial court's decision. 7

Affirmed in part

and reversed in part.

7

Based on the circumstances of this case, we deny the parties'

respective requests for an award of attorneys' fees and costs

related to this appeal.

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