                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


BARBARA FAYE COX

v.    Record No. 2576-98-1

WILLIAM COX
                                               MEMORANDUM OPINION *
AND                                                PER CURIAM
                                                  JUNE 8, 1999
WILLIAM COX

v.    Record No. 2589-98-1

BARBARA FAYE COX


        FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                   H. Thomas Padrick, Jr., Judge

           (Mark S. Smith; Christie & Kantor, P.L.C., on
           briefs), for Barbara Faye Cox.

           (Steven C. Frucci; Brydges, Mahan, O’Brien &
           Frucci, P.C., on briefs), for William Cox.


      William Cox (husband) appeals the decision of the circuit

court awarding Barbara Faye Cox (wife) spousal support and

attorney’s fees and distributing the parties’ marital assets.

Husband contends that the trial court erred by (1) failing to

consider wife’s ability to work, her income from his retirement

benefits, and his actual income when setting the amount of spousal

support; (2) awarding wife attorney’s fees and costs; and (3)



    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
valuing the marital oil business.    Wife also appeals the decision

of the circuit court, contending that the court erred by failing

to award her greater monthly spousal support than recommended by

the commissioner in chancery.    Upon reviewing the record and

briefs of the parties, we conclude that these appeals are without

merit.   Accordingly, we summarily affirm the decision of the trial

court.   See Rule 5A:27.

                           Standard of Review

     The evidence was heard by the commissioner in chancery, whose

report was sustained by the trial court.

           [T]he commissioner's report is deemed to be
           prima facie correct. The commissioner has
           the authority to resolve conflicts in the
           evidence and to make factual findings. When
           the commissioner's findings are based upon
           ore tenus evidence, “due regard [must be
           given] to the commissioner's ability . . .
           to see, hear and evaluate the witness at
           first hand.” Because of the presumption of
           correctness, the trial judge ordinarily must
           sustain the commissioner's report unless the
           trial judge concludes that it is not
           supported by the evidence.

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)

(citations omitted).

                            Spousal Support

     Both parties contend that the trial court erred when it

denied their exceptions to the commissioner’s recommendation that

wife receive $1,000 in monthly spousal support.

                In awarding spousal support, the
           chancellor must consider the relative needs

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           and abilities of the parties. He is guided
           by the nine factors that are set forth in
           Code § 20-107.1. When the chancellor has
           given due consideration to these factors,
           his determination will not be disturbed on
           appeal except for a clear abuse of
           discretion.

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986).   Husband argues that the trial court failed to consider

wife’s ability to work.   However, husband presented no evidence of

any employment opportunities for which wife was qualified but

failed to apply.   In fact, husband testified that wife could not

take oil orders properly when she worked for the parties’ fuel oil

business shortly before the final separation.   Husband also

described several incidents where wife was hospitalized due to her

bi-polar disease, and admitted that from October to January each

year she went through a manic phase.   While husband opined that

wife could work in cosmetology, computers, or telephone

solicitation, wife testified that she was not licensed for

cosmetology and had not done secretarial or computer work since

1986.   She also testified that she was feeling better, but was

unsure if she could handle stress caused by working, although she

admitted that her doctor asked her if she was ready to find work.

Wife qualified for Social Security disability due to her illness,

for which she received $566 monthly.   Substantial evidence in the

record supports wife’s contention that, at the time of the




                               - 3 -
hearing, she was not able to work.     Husband presented nothing

beyond speculation to support his claims to the contrary.

     Husband also challenged wife’s contention that husband

received approximately $1,000 in unreported income from AAA Fuel

Oil Business.   Wife testified that husband withdrew that amount,

based upon her knowledge of husband’s previous practice, an

assertion denied by husband.   Such additional income was reported

by the commissioner and implicitly considered by the commissioner

and the court in a determination of spousal support payable by

husband to wife.   Notwithstanding husband’s denial of the alleged

unreported income, wife’s testimony, together with her familiarity

with husband’s financial affairs, provides sufficient support in

the record for both consideration of the monies and related award

of spousal support.

     Husband also contends that the trial court failed to include

in wife’s monthly income her share of husband’s monthly retirement

benefit.   The commissioner’s report indicated that he “considered

all the statutory factors and the circumstances of this case,

including the monetary award herein recommended” when recommending

the spousal support award.   As set out in the report, the

calculations of the recommended monetary award followed almost

immediately after the commissioner’s determination that wife’s

8.75% share of husband’s retirement “will produce gross income to

the wife of approximately $153.00 per month.”    Husband has not


                               - 4 -
demonstrated that the trial court failed to consider this portion

of the commissioner’s report when accepting the recommended

spousal support award.

     In her appeal, wife argues that the evidence demonstrated

that her need for spousal support exceeded the amount awarded.

She noted in particular that the loss of CHAMPUS coverage upon

divorce left her with monthly uninsured medical expenses,

including $500 in monthly prescription costs.

     The record demonstrates that the trial court considered the

evidence, the statutory factors, and the parties’ exceptions to

the commissioner’s report.   We find no error in the trial court’s

decision to accept the commissioner’s recommendation to award wife

$1,000 in monthly spousal support.

                          Attorney’s Fees

     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

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

326, 333, 357 S.E.2d 554, 558 (1987).   The key to a proper award

of counsel fees is reasonableness under all the circumstances.

See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).   Wife was unemployed, with substantially less monthly

income than husband, and with serious health concerns.   Husband

continued to have the greater earning and employment capacity.

Based on the respective abilities of the parties to pay, we cannot


                               - 5 -
say that the award was unreasonable or that the trial judge abused

his discretion in making the award.

                       Valuation of Oil Business

     Finally, husband contends that the trial court erred by

accepting the value placed on the marital oil business by wife’s

expert.   Husband valued the business at $10,000.   Wife’s expert

valued the business at $52,000.    The expert testified at the

commissioner’s hearing, subject to husband’s cross-examination.

In his testimony, the expert noted that he discounted the gross

value he initially reached by forty percent, and also used a

more conservative thirty percent profit margin.     The expert also

noted that he did not include any value for equipment, as the

oil business operated with a single, older truck.

     “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).    The commissioner was entitled to

accept the testimony of wife’s expert as to the value of the

ongoing oil business.    Because the value assigned to the

business was supported by credible evidence, we find no error.

     It was uncontested that the oil business was marital

property and that both husband and wife helped start the

business.   While Virginia law has no presumption favoring an


                                 - 6 -
equal division of marital property, we cannot say that the trial

court abused its discretion by awarding each party one-half the

value of the oil business.   See Papuchis v. Papuchis, 2 Va. App.

130, 132, 341 S.E.2d 829, 830-31 (1986).

     Wife’s motions for attorney’s fees and costs incurred on

these appeals are denied.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                         Affirmed.




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