Utsch, 38 Va. We awarded Wife an appeal from the adverse judgment of the Court of Appeals. Because we hold that the deed of gift was unambiguous on its face, both for the purpose of retitling and proof of donative intent, parol evidence surrounding its execution was not admissible. In equitable distribution proceedings, the determination of title to property is a separate inquiry from the classification of property for the purposes of making an award pursuant to Code??
The case before the Court involves a narrow question concerning the proof necessary to determine classification of separate property that has been subsequently retitled in the joint names of the parties. Both Husband and Wife agree that the marital residence before retitling would have been classified as separate property pursuant to Code??
However, Code?? 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. The question presented in this appeal is whether the retitling in this case was a gift. If so, the marital residence is properly classified as marital property. If not, subject to proof of retracing, the marital residence retains its classification as separate property.
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The burden of proof that the transfer was a gift is upon the party seeking to establish the gift. No presumption of gift arises from the act of retitling. Rust v. Phillips, Va. Proof of donative intent, delivery, and acceptance are necessary to sustain the burden. In this case, only donative intent is in controversy.
The parties agree and the Court of Appeals held that the deed of gift was unambiguous concerning the intent to retitle the property. In reaching these two holdings, the Court of Appeals added requirements to the elements of proof required under Code?? In each holding, the Court of Appeals erred. Nowhere in Code?? The proof required under the statutory provision is simply that the transfer was a gift. Capozzella, Va.
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In determination of what is apparent on the face of a deed, we must consider the application of the parol evidence rule. Contrary to the holding of the Court of Appeals, nothing in the statutory scheme suggests that the parol evidence rule is not to be applied in the determination of donative intent for equitable distribution purposes.
The legislature is fully capable of stating that the parol evidence rule does not apply to such a determination. In the absence of such a declaration, the courts should not supply it, particularly where such a rule of law has been routinely applied to interpret deeds in Virginia. Foster Murphy v. Castillo v. Wegmans Food Markets, Inc. Holcomb, Commissioner, etc. Department of Alcoholic Beverage Control, et al. John Henry Hagmann, M.
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