                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia


GILBERT EVERETT SCHILL, JR.
                                             MEMORANDUM OPINION * BY
v.             Record No. 1636-96-2           JUDGE LARRY G. ELDER
                                                 JUNE 10, 1997
NANCY JOAN LENAHAN SCHILL


                 FROM THE CIRCUIT COURT OF HENRICO COUNTY
                          George F. Tidey, Judge

               Donald K. Butler (Player B. Michelsen;
               Morano, Colan & Butler, on briefs), for
               appellant.

               John F. Ames for appellee.



        Gilbert Everett Schill (husband) appeals the trial court's

awards of equitable distribution, spousal support and attorney

fees.       Nancy Joan Lenahan Schill (wife) appeals the trial court's

award of equitable distribution and the omission of any decision

regarding child support in its final decree.       For the reasons

that follow, we affirm in part, reverse in part, and remand.

        The parties are familiar with the record and this memorandum

opinion recites only those facts necessary to the disposition of

the issues before the Court.




        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                 I.

                       EQUITABLE DISTRIBUTION

     Husband asserts that the trial court made four errors in its

award of equitable distribution.      He contends that the trial

court erred (1) when it classified all of his capital account

with his law firm as marital property; (2) when it valued his

capital account without deducting a $27,000 encumbrance on it;

and (3) when it accepted wife's valuation of the parties' four

joint bank accounts.   Husband also argues that the trial court's

division of the marital property was erroneous because its

analysis of the statutory factors of Code § 20-107.3(E) was

flawed.   Wife contends that the trial court erred when it

concluded that husband had no professional goodwill to be

included in the marital property.
                                 A.

            CLASSIFICATION OF HUSBAND'S CAPITAL ACCOUNT

     We hold that the trial court did not err when it declined to

classify husband's capital account with his law firm as part

marital and part separate property.     Under Code § 20-107.3(A), a

trial court must classify the property of parties to a divorce

suit into one of three categories:     separate, marital or part

marital and part separate.   Marital property includes "(ii) that

part of any property classified as marital pursuant to

subdivision A 3, (iii) all other property acquired by each party

during the marriage which is not separate property as defined




                                -2-
above."   Code § 20-107.3(A)(2).    Property is presumed to be

marital if it was "acquired by either spouse during the marriage,

and before the last separation of the parties," unless evidence

proves that the property is separate.     Id.

     Husband's capital account was marital property because the

evidence conclusively proved that it was initially acquired

during the marriage.   This marital property had a value of

$91,853 at the time the parties separated.      However, on the date

of the hearing, the value of this marital property had increased

to $108,219.
     Husband argues that the trial court should have classified

the capital account as part marital and part separate property.

He argues that the increase in the value of the capital account

was caused by his post-separation contribution of $16,366 and

that the trial court erred when it declined to classify this

amount as his separate property.     We disagree.

     First, we disagree with husband's contention that wife had

the burden of proving that the increase in the value of the

capital account was marital property.    Property acquired after

the last separation is presumed to be separate property unless

the party claiming otherwise proves that the property "was

acquired while some vestige of the marital partnership continued

or was acquired with marital assets."     Dietz v. Dietz, 17 Va.

App. 203, 211-12, 436 S.E.2d 463, 469 (1993).       However, this rule

does not apply to the capital account because it was initially



                                   -3-
acquired during the marriage.
          All property acquired by either spouse during
          the marriage is presumed to be marital
          property in the absence of satisfactory
          evidence that it is separate property. The
          party claiming that property should be
          classified as separate has the burden to
          produce satisfactory evidence to rebut this
          presumption.

Stroop v. Stroop, 10 Va. App. 611, 614-15, 394 S.E.2d 861, 863

(1990) (citation omitted).    Moreover, because the capital account

is marital property, wife did not have the burden of proving that

the increase in its value after the parties separated was also

marital property.    Rather, the valuation date of the capital

account was the date of the hearing before the trial court

because neither party moved for the use of an alternative

valuation date.     See Code § 20-107.3(A).

     Instead, the classification of the post-separation

contribution to the capital account is governed by the rules

addressing commingled property.    Under Code § 20-107.3(A)(3)(d),

separate property becomes transmuted to marital property if the
separate property is "commingled by [being contributed]" to

marital property and the separate property loses its identity.

The separate property retains its identity as separate property

if it is "retraceable by a preponderance of evidence and was not

a gift."   Id.    A corollary of Code § 20-107.3(A)(3)(d) is that

marital property commingled with other marital property remains

classified as such.




                                  -4-
     The trial court did not err when it did not classify the

post-separation increase in the value of the capital account as

separate property because the record does not establish that the

increase in the capital account was due to the commingling of

this marital asset with husband's own separate funds.    The

testimony of the controller of husband's law firm indicated that

each partner at the firm is periodically required to contribute

funds to the capital of the firm and that the aggregate amount of

capital that each partner has contributed is referred to as his

or her "capital account."    Although husband made a contribution

to his capital account after the parties' final separation, the

record does not indicate the source of the funds used by husband

to make this contribution.   Husband offered no evidence showing

that his post-separation contribution was made entirely with

post-separation income or with other separate property.   Because

the record does not establish that this is a case in which

separate property was commingled with marital property, the trial

court's classification of the post-separation increase in the

capital account as marital property was not erroneous.
                                 B.

             VALUATION OF HUSBAND'S CAPITAL ACCOUNT

     We hold that the trial court did not err when it declined to

deduct the $27,000 loan from the value of the capital account.

When determining the value of marital property, the trial court

is required to consider whether the property serves as security




                                 -5-
for any valid debts of either party.   Trivett v. Trivett, 7 Va.

App. 148, 151, 371 S.E.2d 560, 562 (1988).   If the trial court

finds that marital property is encumbered by debt and that this

debt was not deliberately "created in anticipation of divorce" in

order to reduce the other spouse's monetary award by reducing or

eliminating the value of such property, then "the amount of the

indebtedness should be deducted from the unencumbered value of

such property."   Id. at 152, 154-55, 371 S.E.2d at 562, 564.     As

with cases involving the dissipation of assets, when an aggrieved

spouse shows that marital assets were encumbered by debt at a

time when the marriage is undergoing an irreconcilable breakdown,

the burden is on the party charged with creating the encumbrance

to prove that it was created and used for a proper purpose.     See

Clements v. Clements, 10 Va. App. 580, 587, 397 S.E.2d 257, 261

(1990).

     In this case, the trial court did not state any basis for

its conclusion that the $27,000 loan should not be deducted from

the value of husband's capital account.   However, "'we will start

from the premise that the chancellor knows the law and properly

applied it even when he or she does not mention [the applicable

law].'"   Woolley v. Woolley, 3 Va. App. 337, 344-45, 349 S.E.2d

422, 426 (1986) (quoting Campolattaro v. Campolattaro, 66 Md.App.

68, 502 A.2d 1068 (1986)).

     Thus, we presume that the trial court knew the law regarding

the valuation of encumbered marital assets and concluded that




                                -6-
husband failed to meet his burden of persuasion that the $27,000

loan on his capital account was used for proper purposes.    Based

on the record before us, we cannot say that this was error.     The

evidence did prove that husband obtained this loan after the

parties separated and that this loan was secured by his capital

account.    However, husband's proof that these funds were used

solely for proper purposes amounted to little more than an

undetailed list of expenses that he testified were paid for with

the loan.   He testified that he used the proceeds of the loan to

pay for income taxes, medical expenses, including an uninsured

hospitalization of wife costing $900, living expenses of wife and

two children, and the college tuition of a daughter, which costs

$1,600 per month.   While husband testified that he incurred these

expenses, he did not prove either their total amount or that they

added up to $27,000.   Moreover, no evidence established that

husband had actually spent all of the $27,000 as of the date of

the hearing.
          [T]he burden is always on the parties to
          present sufficient evidence to provide the
          basis on which a proper determination [of the
          value of marital property] can be made
          . . . . [R]eviewing courts cannot . . .
          reverse and remand . . . [equitable
          distribution] cases where the parties have
          had an adequate opportunity to introduce
          evidence but have failed to do so. Parties
          should not be allowed to benefit on review
          for their failure to introduce evidence at
          trial . . . .

Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 550 (1987)



                                 -7-
(citations omitted).   Based on this scant evidence, we cannot say

that the trial court erred when it was not persuaded that the

$27,000 loan was used entirely for proper purposes.




                                -8-
                                  C.

                VALUATION OF JOINT BANK ACCOUNTS

     We hold that the trial court did not err when it valued the

parties' four joint bank accounts on a date earlier than the

equitable distribution hearing.    The evidence established that

these accounts were marital property.   Wife offered evidence that

the value of the joint accounts was at one time $2,500,

$2,000.46, $630, and $2,630.46.    Husband testified that the

current balances of these accounts were $215, $0, $275, and $0.

Because the evidence proved that husband had used the funds in

these accounts after the parties separated, he had the burden of

proving that these funds were spent for a proper purpose.       See

Clements, 10 Va. App. at 587, 397 S.E.2d at 261.    If husband was

unable to meet his burden of proof, the trial court was required

"to value the property at a date other than the date of the

evidentiary hearing . . . ."    Id.

     We cannot say that the trial court erred when it concluded

that husband failed to prove that he used the funds in these

accounts for proper purposes.   Husband's proof that he used the

funds in the joint bank accounts for proper purposes consisted of

his testimony that a portion of one of the accounts "was used to

pay down life insurance premiums" and his sweeping statement that

"generally" the remaining funds were used to pay "regular

expenses of the marriage."   However, husband offered no evidence

proving how much of these funds were actually used to pay his



                                  -9-
life insurance premiums or any other marital expense.    His

lawyer's only question on this subject directed husband not to

account for his use of these funds.    The trial court was within

its discretion not to be persuaded by husband's sketchy, vague

evidence that he used the funds in the joint bank accounts for

proper purposes.

                                 D.

                   HUSBAND'S PROFESSIONAL GOODWILL
     We hold that the trial court did not err when it concluded

that husband had no professional goodwill.   On appeal, the trial

court's decision regarding goodwill "will not be disturbed if it

appears that the court made a reasonable approximation of the

goodwill value, if any, of the professional practice based on

competent evidence and the use of a sound method supported by

that evidence."    Russell v. Russell, 11 Va. App. 411, 417, 399

S.E.2d 166, 169 (1990).   The expert testimony on this issue

conflicted, and the trial court's conclusion was supported by

credible evidence.

                                 E.

            ANALYSIS OF FACTORS IN CODE § 20-107.3(E)

     Husband contends that the division of the marital property

by the trial court was erroneous because the trial court

incorrectly applied the factors of Code § 20-107.3(E).

Specifically, husband contends that the trial court failed to

consider the negative impact of wife's alcoholic behavior on the



                                -10-
marital estate and improperly considered punishment as a factor

in its analysis. We disagree.
               Equitable distribution is predicated
          upon the philosophy that marriage represents
          an economic partnership requiring that upon
          dissolution each partner should receive a
          fair portion of the property accumulated
          during the marriage. Therefore,
          circumstances that affect the partnership's
          economic condition are factors that must be
          considered for purposes of our equitable
          distribution scheme.

Aster v. Gross, 7 Va. App. 1, 6, 371 S.E.2d 833, 836 (1988)

(citation omitted).
          In any equitable distribution proceeding, the
          trial judge must consider all the
          specifically enumerated factors in exercising
          his or her discretion, and ". . . it is
          reversible error for the trial judge to fail"
          to do so.

Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 577

(1992) (citation omitted).    "The appropriate consideration of the

factors entails more than a mere recitation in the record or

decree that all the statutory factors have been considered or

reviewed."   Id. at 405, 424 S.E.2d at 578.   However, the trial

court is not required "to quantify the weight given to each

[factor], nor is it required to weigh each factor equally."
Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436

(1991).   Instead, "[the trial court's] considerations must be

supported by the evidence."    Id.

     Husband contends that the trial court gave no consideration




                                -11-
to the impact of wife's alcoholism on the marital estate.   We

disagree.   Although we agree with husband that the trial court

was required to consider wife's alcoholism because it was a

circumstance that affected the economic condition of the

marriage, see Aster, 7 Va. App. at 6, 371 S.E.2d at 836, the

record indicates that the trial court was aware of and gave

consideration to the impact of wife's alcoholic behavior on the

marital estate.   Husband argued in both his closing argument at

the hearing and in a post-hearing memorandum that wife's

alcoholic behavior had negatively impacted the marital property

and the well-being of the family and that wife's portion of the

marital property should not exceed 25%.   In its opinion letter,

the trial court stated:
          I have considered [husband's] position with
          regard to [wife's] alcohol addiction . . . .
           I feel that if I adopted [husband's]
          position with regard to a property division I
          would be unnecessarily punishing [wife] for a
          disease that she has not learned to cope with
          despite everyone's efforts.

Because the trial court stated that it considered husband's
arguments, which expressly addressed the impact of wife's

alcoholic behavior on the marital estate, we cannot say that the

trial court failed to consider this circumstance when it

fashioned its award.

     Husband also argues that the trial court's reference to

"punishment" in its opinion letter indicates that it improperly

considered punishing the parties with its award.   We disagree.



                               -12-
Husband is correct that "[e]quitable distribution is not a

vehicle to punish behavior," and a trial court's consideration of

marital fault is limited to its negative impact on either the

family, the other spouse or the marital property.    See O'Loughlin

v. O'Loughlin, 20 Va. App. 522, 526-27, 458 S.E.2d 323, 325

(1995); Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836.    However,

when read in context with husband's memorandum, the trial court's

reference to punishment is nothing more than a response to

husband's request for a division that would award only 25% of all
the marital property to wife and 75% to husband.    By stating that

husband's proposed division would "unnecessarily punish" wife,

the trial court was indicating its awareness that it was

prohibited by Code § 20-107.3 from fashioning an award to

penalize wife for her behavior.    The trial court's comments

indicate that it intended its division to be based solely on the

ten factors of Code § 20-107.3 and that its consideration of

wife's alcoholism was limited to the actual impact it had on the

marital estate and the family.

     Finally, we hold that the trial court's application of the

statutory factors of Code § 20-107.3 was not erroneous.
          "[I]n reviewing an equitable distribution
          award, we rely heavily on the trial judge's
          discretion in weighing the particular
          circumstances of each case. Only under
          exceptional circumstances will we interfere
          with the exercise of the trial judge's
          discretion."

Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644



                                 -13-
(1992) (quoting Aster, 7 Va. App. at 8, 371 S.E.2d at 837).     In

its opinion letter, the trial court stated that it "considered

all of the factors listed in Code §20-107.3" and outlined the

circumstances of the marriage that it considered, all of which

were relevant to equitable distribution and supported by credible

evidence in the record.   Based on these findings, the trial court

divided the nonbusiness-related marital property "50-50" and

husband's law firm accounts "60-40" in favor of husband.

Overall, because the vast majority of the marital property was

related to husband's various law firm accounts, husband was

awarded roughly 60% of all of the marital property while wife was
awarded roughly 40%.   Because the trial court gave consideration

to all of the statutory factors and factual circumstances

relevant to making an award under Code § 20-107.3, we cannot say

that its award was an abuse of discretion.

                                II.

                          SPOUSAL SUPPORT

     We disagree with husband's contention that the amount of

support awarded by the trial court was excessive and an abuse of

discretion.   When spouses are divorced, "'the law imposes upon

the [supporting spouse] the duty, within the limits of [his or

her] financial ability, to maintain [his or her] former [spouse]

according to the station in life to which [he or she] was

accustomed during the marriage.'"     Via v. Via, 14 Va. App. 868,

870, 419 S.E.2d 431, 433 (1991) (quoting Klotz v. Klotz, 203 Va.



                               -14-
677, 680, 127 S.E.2d 104, 106 (1962)).    "In fixing the amount of

the spousal support award, a review of all of the factors

contained in Code § 20-107.1 is mandatory, and the amount awarded

must be fair and just under all of the circumstances."        Gamble,

14 Va. App. at 574, 421 S.E.2d at 644.    "When the record

discloses that the trial court considered all of the statutory

factors, the court's ruling will not be disturbed on appeal

unless there has been a clear abuse of discretion."     Id.
     In this case, the trial court awarded wife spousal support

of $7,500 per month.   However, neither the trial court's opinion

letter nor the final decree quantifies how the trial court

arrived at $7,500 as the amount of spousal support.   Instead, the

trial court stated only that the award was "[b]ased on [wife's]

needs and [husband's] ability to pay."    Thus, we must examine the

record to see if the evidence supports the trial court's award.

See Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523

(1988).

     We hold that the amount of spousal support awarded by the

trial court is supported by the record and is fair and just under

the circumstances of this case.   The record indicates that

husband is a successful attorney and that his average monthly

income, after deducting taxes, for the three years preceding the

spousal support hearing was $14,626.80.   The record indicates

that wife has no current income from employment, has not worked

since the late 1960s and has a high school education.    The length



                               -15-
of the marriage was 26 years, during which the parties

established a high standard of living.   Both parties are fifty

years old.    With the exception of a bad back, husband is in good

physical and mental health.   Wife suffers from the disease of

alcoholism.   During the marriage, husband made nearly all of the

financial contributions to the family.   Wife made significant

non-monetary contributions to the family during the first seven

or eight years of the marriage until her addiction to alcohol

worsened.    During the remaining years of the marriage, wife's

alcoholic behavior had a substantial negative impact on the
well-being of the family.   In addition, the bulk of wife's

immediate disbursement from the equitable distribution award was

in the form of non-liquid assets such as the marital home and an

automobile.   The record indicates that husband's monthly

expenses, exclusive of amounts expended on his children, totaled

$6,871.   Wife's monthly expenses were at least $7,500.

Considering that husband's monthly after-tax income is $14,626.80

and that his personal monthly expenses are $6,871, the trial

court's award leaves husband with $7,755.80 to pay his $7,500

monthly support payment.    In light of husband's earning capacity

and current ability to pay, the standard of living established

during this lengthy marriage, and considering wife's medical

problems, financial needs, and prospects for employment, we

cannot say that the amount of the trial court's spousal support

award was an abuse of discretion.




                                -16-
     The dissent contends that wife's estimation of her monthly

expenses was "grossly overinflated" and that the trial court

failed to consider the estimate's flaws in its determination of

wife's monthly expenses.    Although we agree that both husband's

testimony and husband's lawyer's cross-examination of wife

revealed some overstatements in wife's estimation of her

expenses, we disagree that the trial court did not account for

these inaccuracies in its determination.
     On her list of expenses, wife estimated that her monthly

expenses totaled $10,995.   The trial court discounted this

estimation by $3,495 when it awarded wife spousal support of

$7,500.   Evidence introduced by husband established that wife

overestimated her mortgage payment by $400, her monthly insurance

expense by $305, and mistakenly listed that her house had a

monthly utility expense for gas of $200.   During his

cross-examination of wife, husband's lawyer also impeached, but

did not disprove, the accuracy of wife's estimation of her

monthly expenses for property taxes, electricity, water/sewer,

cable television, transportation, life insurance, eyeglasses,

hospitalization, gift giving and vacations.   However, even when

using husband's estimations for all of the figures that his

lawyer challenged on cross-examination, except for those related

to transportation, 1 and after excluding wife's estimation of
     1
      We disagree with both husband's and the dissent's
contention that wife was overreaching when she claimed a monthly
expense of $500 under the "automobile" category of her expense
sheet and a monthly expense of $500 for automobile insurance


                                -17-
expenses related to the children, wife's total monthly expenses

were at least $6,585.   Thus, contrary to the assertion by the

dissent, the record indicates that the trial court did discount

wife's estimation of her expenses to account for all of its

actual overstatements and for at least some of its questionable

estimates.   Moreover, because the portions of wife's estimation

of her monthly expenses that were not proven to be overstated

totaled at least $7,500, we cannot say that the trial court's

determination of wife's monthly expenses was erroneous.
                               III.

                           ATTORNEY FEES

     Husband challenges the trial court's award of attorney fees

for wife's representation in both a post-separation criminal

proceeding and the divorce proceeding.

                                A.

                POST-SEPARATION CRIMINAL PROCEEDING

     We hold that the trial court erred when it ordered husband

to pay wife's attorney fee that arose from her post-separation

charge of driving while intoxicated.   First, the trial court had

because she is legally prohibited from driving for at least three
more years. First, the "automobile" expense category on wife's
expense sheet includes a subcategory for "other transportation."
 Wife's estimation of a $500 monthly expense for this category
was supported by her testimony that she does not live on a bus
line and relies primarily on cabs for her daily transportation.
In addition, even though wife cannot drive, we cannot say that
her claim that she incurred a monthly expense for automobile
insurance was unwarranted in light of the fact that the trial
court awarded her an automobile in its equitable distribution of
the marital property.




                               -18-
no authority under Code § 20-79(b) to award attorney fees

relating to wife's post-separation criminal proceeding.   Although

Code § 20-79(b) authorizes a trial court to award "counsel fees

. . . if in the judgment of the court . . . the foregoing should

be so decreed," this statute is expressly limited to counsel fees

"[i]n any suit for divorce."   In addition, the trial court could

not have apportioned this debt as a marital debt under Code

§ 20-107.3(C).   Code § 20-107.3(C) empowers a trial court "to

apportion and order the payment of the debts of the parties, or

either of them, that are incurred prior to the dissolution of the

marriage, based upon the factors listed in subsection E."

(Emphasis added.)   The record is devoid of any evidence regarding

the dates on which wife's attorney provided legal representation

and advice relating to her criminal defense.   Although the record

establishes that wife was arrested for driving while intoxicated

and bailed out of jail in August, 1994, the evidence does not

support a finding that wife's legal expenses were incurred prior

to January 3, 1995, the date of husband's divorce from wife.

                                B.

                        DIVORCE PROCEEDING

     We disagree with husband's contention that the trial court

abused its discretion when it awarded wife attorney fees for the

divorce proceeding.   Code § 20-79(b) empowers a trial court

hearing a suit for divorce to award attorney fees "if in the

judgment of the court . . . [an award] . . . should be so



                               -19-
decreed."   "An award of attorney fees is a matter submitted to

the trial court's sound discretion and is reviewable on appeal

only for an abuse of discretion."     Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987).    Based on all of the

circumstances and equities of this case, including the length of

the marriage, wife's needs, and husband's resources, we cannot

say that the trial court abused its discretion when it ordered

husband to pay $10,000 of wife's attorney fee of $39,702.88 for

the divorce proceeding.




                               -20-
                                 IV.

                            CHILD SUPPORT

     Wife contends that this case should be remanded because she

requested the trial court to determine child support and the

trial court did not address this issue in its decree.   We agree.

Both parties requested the trial court to make a determination

regarding child support.   The trial court failed to decide this

issue and failed to state any rationale for this inaction.    In

our opinion, the trial court abuses its discretion when it fails

to decide whether or not to award child support in its final

decree when this issue is presented for adjudication by one of

the parties.    Cf. Conway v. Conway, 10 Va. App. 653, 659, 395

S.E.2d 464, 467 (1990) (holding that the trial court abused its

discretion when it failed to set forth a rationale for its child

support award).

                                 V.

                             CONCLUSION

     In summary, we affirm the trial court's awards of equitable

distribution, spousal support and attorney fees for the divorce

proceeding.    We reverse the trial court's award of attorney fees

arising from wife's post-separation charge of driving while

intoxicated.   Finally, we remand the issue of child support to

the trial court to determine if an award is justified in this

case and, if so, the amount of such award.
                              Affirmed in part, reversed in part,
                              and remanded.




                                -21-
Benton, J., concurring and dissenting.



     I concur in Parts I(C), I(D), III, and IV.         I dissent,

however, from Parts I(A), I(B), I(E), and II.

                                A.

     I disagree with the majority that the husband's capital

account was proved to be wholly marital.   The evidence proved

that as of the date of separation the husband's capital account

was worth $91,853, less a loan of $27,000.       The husband's
post-separation contribution was $16,366.
          Generally, property acquired by one partner
          after the last separation when "at least one
          of the parties intends that the separation be
          permanent" is not "acquired . . . during the
          marriage" or as part of the marital
          partnership and will not be marital property,
          unless it was obtained, at least in part,
          with marital funds. Property acquired by one
          partner totally separate and apart from the
          marital partnership does not imbue the other
          partner or spouse with rights and equities in
          such property. Where partnership efforts
          have contributed nothing to the acquisition
          or maintenance or preservation of the
          property, no basis exists for its being
          classified as a marital asset.

                 *    *    *    *     *      *      *

               While Code § 20-107.3(A)(2) does not
          expressly state that property acquired after
          the last separation shall be presumed to be
          separate property, it necessarily follows
          that if the marriage partnership is presumed
          to have ended as of the date of the last
          permanent separation, in order for property
          acquired after that date to be classified as
          marital, the party so claiming will have the
          burden of proving, without the benefit of a
          presumption, that it was acquired while some
          vestige of the marital partnership continued
          or was acquired with marital assets. Thus,



                               -22-
            if the party with the burden of proving that
            the property is marital fails in his or her
            burden, then necessarily, the property
            acquired after the marital partnership ended
            is separate property.


Dietz v. Dietz, 17 Va. App. 203, 210-12, 436 S.E.2d 463, 468-69

(1993) (citations omitted).   Because the wife failed to prove

that the husband's post-separation contribution to his capital

account was made with marital funds, the trial judge erred in

holding that it was not separate property.
                                 B.

     I would also hold that the trial judge erred in ruling that

the $27,000 loan that husband made from the capital account was

not a proper marital expenditure.      The trial judge gave no

explanation for his decision.

     The husband testified that those funds were expended for

marital purposes in 1995 when his salary was reduced.      He used

the loan proceeds to pay taxes, expenses for his operation, $900

for his wife's uninsured hospitalization, expenses for meningitis

treatment for the two youngest children, and tuition of $1,600

per month for a third child who was in college.     The wife offered

no evidence to dispute that these funds were used for those

purposes.   Thus, I would hold that the husband met his burden of

proving that the funds were used for proper purposes.

                                 C.

     I disagree with the majority's conclusion that the trial

judge properly considered the impact of the wife's alcoholism on



                                -23-
the marital estate when rendering its equitable distribution

award.   In a memorandum submitted to the trial judge, the husband

argued that (1) the wife's alcoholism directly affected the

monetary value of the marital estate and, thus, could be

considered pursuant to Aster v. Gross, 7 Va. App. 1, 371 S.E.2d

833 (1988) (holding that marital conduct cannot be used to

"punish" the offending spouse in the equitable distribution

award; such conduct can only be considered to the extent that it

affects the economic condition of the marital estate), and (2)

the wife's alcoholism negatively impacted her non-monetary

contributions, and thus it could be considered pursuant to
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995)

(holding that marital conduct could be considered in determining

an equitable distribution award if the evidence shows that the

conduct hindered the non-monetary contributions of a spouse).

     The husband requested the trial judge to consider the wife's

long-term alcoholism as a factor in making the equitable

distribution award.   He argued that her long-term alcoholism had

a direct bearing on her significant lack of contribution to the

acquisition and maintenance of the marital property.   In

particular, the husband argued that the wife's alcoholism "is

relevant to both the monetary and non-monetary contribution

factors because it negatively impacted . . . both."    The husband

argued that when proper consideration was given to the impact of

the wife's alcoholism, the wife should receive only 25% of the



                               -24-
marital estate.

     The trial judge issued an opinion letter in which he found

that "[t]he tragedy of the marriage is that the [wife] is an

acknowledged alcoholic."   The trial judge nonetheless ruled as

follows:
              I have considered [husband's] position
           with regard to [wife's] alcohol addiction and
           how it has affected the marriage and the
           children. . . .

              I feel that if I adopted [husband's]
           position with regard to a property division I
           would be unnecessarily punishing [wife] for a
           disease that she has not learned to cope with
           despite everyone's efforts.

(Emphasis added.)

     That ruling demonstrates that the trial judge misperceived

the husband's argument regarding the impact of the wife's

alcoholism on the marital estate.     I disagree with the majority's

conclusion that the trial judge subsequently factored in wife's

addiction when determining the equitable distribution award.    The

judge's opinion reveals that the judge concluded that he could

not factor in the wife's alcoholism because to do so would be to

punish her for a disease she was unable to overcome.    The trial

judge's ruling misperceived the argument and the purpose of Code

§ 20-107.3.

     "The purpose of Code § 20-107.3 is to divide fairly the

value of the marital assets acquired by the parties during

marriage with due regard for both their monetary and nonmonetary

contributions to the acquisition and maintenance of the property


                               -25-
and to the marriage."    O'Loughlin, 20 Va. App. at 524, 458 S.E.2d

at 324.   The reason to consider the wife's alcoholism is not to

penalize her but, rather, to recognize the additional burden

placed on the husband.   The wife's alcoholism is a factor that

tends to make the husband's non-monetary contributions more

significant.   Accord Crowe v. Crowe, 602 So.2d 441 (Ala. Civ.

App. 1992); In re Marriage of Bulanda, 451 N.W.2d 15, 17 (Iowa

Ct. App. 1989).
     After O'Loughlin, it is clear that a trial judge can

consider marital conduct as it impacts a spouse's non-monetary

contributions to the well-being of the family.     See 20 Va. App.

at 528, 458 S.E.2d at 326.   It is also clear that if the conduct

in fact did affect a spouse's non-monetary contributions,

consideration of the conduct does not constitute "punishing" the

spouse for that conduct as prescribed in Aster.     See O'Loughlin,

20 Va. App. at 528, 458 S.E.2d at 326.    Moreover, giving

consideration to the wife's alcoholism does not depend upon a

finding that the alcoholism constituted marital fault.
O'Loughlin could not be clearer in ruling that any behavior that

negatively impacts the non-monetary contributions of one spouse

to the marriage can be considered.     See 20 Va. App. at 528, 458

S.E.2d at 326 ("[O]ur ruling in Aster did not establish that the

negative impact of marital fault or other behavior could not be

considered in light of the other factors, such as the couple's

nonmonetary contributions, under Code § 20-107.3(E).") (emphasis



                                -26-
added).

     The husband argued the relevance of the wife's alcoholism to

the factors of Code § 20-107.3(E).    The trial judge implicitly

ruled that the evidence was not relevant to those factors because

consideration of that issue would be punitive.   The question of

alcoholism goes not to punishment or fault but, rather, to

"determining whose labor or negatively productive conduct was

responsible for creating or dissipating . . . marital assets."

In re Marriage of Clark, 538 P.2d 145, 147 (Wash. Ct. App. 1975)

(footnote omitted).   One spouse's addiction to alcohol over a

long period of the marriage, which places a great burden on the

other spouse, is a factor that justifies awarding the other

spouse a substantial portion of the marital assets.    See Crowe,

602 So.2d at 443; Carpenter v. Carpenter, 573 N.E.2d 698, 701

(Ohio Ct. App. 1988); Handrahan v. Handrahan, 547 N.E.2d 1141,

1142-43 (Mass. Ct. App. 1989); In re Marriage of Clark, 801

S.W.2d 496, 500 (Mo. Ct. App. 1990).   Thus, a trial judge errs

when he fails to consider the economic impact of a spouse's

alcoholism on the acquisition of the property of the marriage.
See O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326; see also

Peirson v. Calhoun, 417 S.E.2d 604, 606 (S.C. Ct. App. 1992).

     The evidence proved that the wife was not employed during

the marriage.   She made no monetary contribution to the

acquisition or maintenance of the marital property.

     The evidence also proved that the wife's non-monetary




                               -27-
contributions to the well-being of the family during the last

eighteen years of the marriage were negligible.   The wife is an

alcoholic, who was in confined treatment on three occasions and

was jailed three times as a result of her alcoholism.

Tragically, she had serious difficulty with alcohol for eighteen

of the twenty-six years that the parties were married.   The

record overwhelmingly establishes that her alcoholism negatively

affected the home lives of her husband and her children during a

substantial portion of the marriage.   The evidence also proved

that the wife's alcoholism on occasion negatively affected the

husband's career and his ability to develop business

opportunities.   Thus, the evidence tends to prove that the wife's

condition had a direct bearing on both the well-being of the

family and the ability of the parties to accumulate and maintain

assets during the marriage.
     Simply put, the trial judge's emphasis on fault failed to

address the relevant issue.   Evidence proving that "[d]ue to her

illness and the attendant hospitalization [a spouse was] able to

function only sporadically," establishes factors that are

properly used to make an unequal property award in favor of the

other spouse.    See In re Marriage of Milsten, 598 P.2d 1268, 1269

(Or. Ct. App. 1979).

     The record raises substantial doubt that the trial judge

properly applied the equitable distribution factors set forth in

Code § 20-107.3.   The principle is long standing that a trial




                                -28-
judge's misapplication of one of the statutory factors is ground

for reversal on appeal.   See Ellington v. Ellington, 8 Va. App.

48, 56, 378 S.E.2d 626, 630 (1989).   Thus, I would reverse the

equitable distribution decision and remand that issue to the

trial judge for reconsideration.




                               -29-
                                  D.

     I also would reverse the spousal support award and remand

for reconsideration.   The wife listed her total monthly expenses

as $10,995.   However, her own testimony proved that those

expenses were grossly overinflated.     For example, she listed

$1,200 for gifts, $200 for a property tax that was already

accounted for in the mortgage payment, $500 for telephone bills,

$1,000 for automobile expenses and insurance even though she is

an habitual offender and is barred from driving, $500 for health

insurance that was proved to be $195, $300 for eyeglasses, $850

for vacations, and $200 for gas utilities even though her

residence has no such utility.
     I find no evidence in the record that in making the spousal

support award the trial judge factored in these and other grossly

inflated items that the wife listed as monthly expenses.     I

believe that when these monthly expenses and others are adjusted,

the evidence does not support an alimony award of $7,500 per

month.

     For these reasons, I would also reverse the spousal support

award and remand for reconsideration.




                                 -30-
