                    COURT OF APPEALS OF VIRGINIA


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


CHARLES WILLIAM HURT

v.   Record No. 0111-96-2

CATHERINE C. HURT                          MEMORANDUM OPINION * BY
                                            JUDGE MARVIN F. COLE
CATHERINE C. HURT                             JANUARY 21, 1997

v.   Record No. 0130-96-2
CHARLES WILLIAM HURT


           FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                  Paul M. Peatross, Jr., Judge

          Peter L. McCloud; Ronald R. Tweel (William C.
          Scott IV; Boyle & Bain; Michie, Hamlett,
          Lowry, Rasmussen & Tweel, on briefs), for
          Charles William Hurt.

          Robert C. Rice (Carrell & Rice, on brief),
          for Catherine C. Hurt.



     Charles William Hurt (husband) and Catherine C. Hurt (wife)

separately appeal the trial court's award of spousal support,

each contending that the trial court made numerous errors in the

trial requiring a reversal of the court's order.   We address

seriatim each issue raised in both appeals.   We affirm in part

and reverse in part and remand for a modification of the spousal

support order.



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

     Charles W. Hurt and Catherine C. Hurt were married on May

20, 1984, and separated on March 31, 1986, a marriage of

twenty-two (22) months.   Husband filed for a divorce upon a

charge of desertion on April 11, 1986.     Wife filed a cross-bill

alleging cruelty and desertion on husband's part.    The parties

were divorced by a final divorce decree entered June 17, 1987, on

the ground of one year separation.
     After several years of hearings, the trial court awarded

wife the sum of three hundred and fifty thousand dollars

($350,000) as equitable distribution to be paid in seven annual

installments of fifty thousand dollars ($50,000) without

interest.   By letter opinion dated February 21, 1991, the trial

court found that wife was barred from receiving spousal support

based upon her desertion of husband, even though the divorce had

already been granted based upon a one year separation.    Wife

appealed the equitable distribution award, the finding that she

deserted husband, and the bar of spousal support.

     In Hurt v. Hurt, 16 Va. App. 792, 433 S.E.2d 493 (1993),

this Court upheld the equitable distribution award.    We further

held that spousal support was barred only "if there exists in

such spouse's favor a ground of divorce under the provisions of

Code § 20-91(1), (3) or (6)."     Id. at 801, 433 S.E.2d at 499.

See Code 20-107.1 (Supp. 1986).    This decision found that husband

failed to corroborate his allegation that wife deserted the



                                  2
marriage, that husband's testimony alone was "insufficient as a

matter of law to establish a ground of divorce [and] . . . it

cannot operate to bar permanent spousal support to wife."      Hurt,

16 Va. App. at 801, 433 S.E.2d at 499.     The trial court's

decision on spousal support was reversed and remanded.

        On August 3, 1995, the issue of spousal support was heard in

the trial court.     In a letter opinion dated August 16, 1995,

embodied in an order entered on December 12, 1995, the trial

court awarded wife spousal support in the amount of one thousand

five hundred dollars ($1,500) per month retroactive to May 1,

1991.    The retroactive award created an immediate arrearage of

seventy-eight thousand dollars ($78,000) for the period from May

1, 1991 to August 1, 1995.     Husband was ordered to pay one-half

of the arrearage by December 1, 1995, and the balance by March 1,

1996, carrying interest at nine percent annually.
        Both parties separately appealed the decision of the trial

court, each asserting numerous errors of the trial court.      We

shall discuss each issue in the order presented.
               II.   Charles W. Hurt v. Catherine C. Hurt

        At the beginning of the hearings, husband moved the trial

judge to recuse himself from conducting the hearings because the

judge had formerly represented wife in a prior domestic relations

matter.    Husband contends that this created a conflict of

interest demanding that the judge recuse himself from hearing the

matter.



                                    3
     The record proves that in 1978, fourteen years prior to the

1992 hearing, the trial judge represented the wife (then

Catherine Kirtley) in a child support matter in a juvenile and

domestic relations court.   After their divorce was granted in

1978, Mr. Kirtley filed a petition in a juvenile and domestic

relations court to decrease the amount of child support.    Mrs.

Kirtley, represented by the trial judge, filed a petition asking

for an increase.   The trial judge indicated that he did not

recall anything that wife told him in confidence and that he had

"absolutely no knowledge of her current circumstances."     He

stated that "I don't know of anything that's pertinent in what I

would hear today that relates back to 1978 that tells me anything

about her current circumstances and need for support, or her

current medical condition."   He refused to disqualify himself.
     "It is within the trial judge's discretion to determine

whether he harbors bias or prejudice which will impair his

ability to give the defendant a fair trial."   Terrell v.
Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991).

Exactly when a judge's impartiality might reasonably be called

into question is a determination to be made by that judge in the

exercise of his or her sound discretion.   Justus v. Commonwealth,

222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), cert. denied, 455

U.S. 983 (1982).   See also Stamper v. Commonwealth, 228 Va. 707,

714, 324 S.E.2d 682, 686-87 (1985).

     There is no indication in the record that the trial judge



                                 4
abused his discretion, and we find no merit to this contention.

     The husband alleges that the trial judge determined the

issue of spousal support under Code § 20-107.1 in effect at the

date of hearing instead of the statute in effect when the case

was filed in 1986.    In its letter opinion, the trial judge did

state that the trial court was governed by Code § 20-107.1 in

effect in 1991.   Both parties agree that this was error and that

statutes are prospective in the absence of an express provision

to the contrary, and that the case is governed by the law in

existence in 1986 when the action was commenced.
     However, the provisions of Code § 20-107.1 governing the

trial court's determination of the amount of spousal support are

the same in both versions of the statute.   It is of no

consequence that the trial judge referred to the 1991 statute in

his letter opinion.   The error is harmless and furthermore, it

can be easily corrected on remand.

     Husband contends that the trial court erred when it failed

to consider all of the factors and circumstances enumerated in

Code § 20-107.1 which contributed to the dissolution of the

marriage, including wife's desertion.

     In his letter opinion dated August 16, 1995, the trial judge

discussed the factors to be considered in determining the amount

of spousal support. He stated:
          The other factor to be considered is the
          uncorroborated finding of desertion by this
          Court previously. The legal effect of this
          factor has been discussed based on the
          guidance of Barnes v. Barnes, [16 Va. App.


                                  5
             98, 428 S.E.2d 294 (1993),] supra.


     It is clear from this statement that the trial court did

consider fault under Code § 20-107.1(9) in determining the amount

of the spousal support.    The only "uncorroborated finding of

desertion" was the alleged desertion by wife, not any fault on

the part of husband.    Thus, the trial court may have improperly

considered evidence of the wife's desertion, but did not commit

any error with respect to the husband.    The trial court did not

commit reversible error with respect to the husband's case.      We

will further discuss this issue in wife's case against husband.
     Husband claims that the trial court erred when it considered

only wife's income and expense statement without giving effect to

her testimony, which contradicted the income and expense shown

thereon.   Wife asserts that her monthly expense statement

establishes her expenses to be $9,883 monthly.    Since the court

only awarded $1,500 monthly, it made a substantial reduction in

the amounts shown on the monthly expense statement, conclusively

showing that the trial judge did not rely only upon the expense

statement.    She further alleges that it is abundantly clear that

the award would have been substantially higher if the trial court

had only considered the calculations on the monthly expense

statement.

     The letter opinion of the trial judge dated August 16, 1995,

shows that in determining spousal support, he considered all of

the factors set forth in Code § 20-107.1, including earnings,



                                  6
earning capacity and financial resources, education and training

of the parties, standard of living, duration of the marriage, age

and health, contributions to the marriage (monetary and

non-monetary), and equitable distribution considerations.    We

find no merit in this issue raised by husband.

        Husband asserts that the evidence does not support the trial

court's finding that he made two to four million dollars in the

last two years, and the trial court was not justified in relying

upon the 1983 prenuptial agreement in determining his present

financial ability.
        In its letter opinion dated August 16, 1995, the trial court

said:
             He has been involved in the real estate
             business since 1955 and gave his full
             attention to real estate development
             beginning in approximately 1960. Since that
             time he has acquired property appraised at
             $40,325,985.00. . . . Dr. Hurt testified
             that in the last two years he sold from two
             to four million dollars worth of property and
             that he had either borrowed or used the sale
             proceeds to pay for his living expenses.
             This Court has considered his testimony as to
             his financial holding, his obligations, and
             his assessment of the value of his property
             at present.


        On January 1, 1994, husband prepared a financial statement

for banking purposes showing total assets of $40,202,809,

liabilities of $18,240,324, giving a net worth of $21,962,485.

The statement indicated that he had "cash on hand" of $734,655

and "accounts receivable" in the amount of $652,932.    The record

also contains a January 1, 1995 financial statement.    It is



                                   7
essentially the same as the 1994 statement, except that the asset

values have been reduced based upon seventy percent of appraised

value due to the results of an auction in Pennsylvania he

attended.

     Husband testified that "I sell two to four million dollars

worth of property a year."

     We find credible evidence in the record to support the

finding of the trial court.
     Husband claims that the trial court erred in relying upon

the 1983 prenuptial agreement to determine his present financial

ability to pay spousal support.   The prenuptial agreement was

introduced in evidence in 1986 by the husband himself as

Complainant's Exhibit 4.   Appellate courts will not permit a

party to use as a grounds for reversal an alleged trial court

error which the party invited.    See Commonwealth v. Kilgore, 15

Va. App. 684, 692, 426 S.E.2d 837, 841 (1993).    In addition, any

fact, however remote, that tends to establish the probability or

improbability of a fact in issue is admissible.   Charles E.

Friend, The Law of Evidence in Virginia, 4th ed., § 11-2, at 452
(1993).   The fact that husband admittedly had a gross income of

approximately two million dollars in 1983 is part of his history

of earnings and earning capacity and, therefore, is relevant in

some degree to prove current earning capacity.    The record does

not support the husband's allegation that the trial judge

considered that he made two million dollars a year in fixing




                                  8
spousal support.   The award of $1,500 a month negates such a

contention.   It is significant that the statement attributable to

the trial judge is placed under the section headed "Discussion of

Law" and not under the section where he considered the factors to

be considered under Code § 20-107.1.   We find no merit in this

claim.

     Husband contends that the trial judge erred in failing to

accord meaningful, substantive consideration to the short

duration of the marriage in determining wife's entitlement to

spousal support.   This contention is not supported by the record.

In his letter opinion, the trial judge stated that he considered

that the marriage only endured from May 20, 1984 until March 31,

1986, when the parties separated.    Thus, we find no merit to this

contention.
     Lastly, husband asserts that the trial court erred when it

awarded wife retroactive spousal support.   He acknowledges that

the trial court has discretion to enter an award of spousal

support effective any time after the date of the commencement of

the suit.   The trial judge commented that the temporary support

order in the amount of $2,600 monthly was terminated at the end

of April 1991.   He commenced the final order of permanent spousal

support on May 1, 1991.   Husband claims only that the spousal

support award was not "fair and just" and operates as an

"injustice" to him.   He has not identified any unfairness and

simply complains that he has paid enough in temporary support.




                                 9
We do not find that the trial judge abused his discretion.
           III.    Catherine C. Hurt v. Charles W. Hurt

     In her separate appeal, wife raises the following issues:

First, she asserts that the trial court erred when it improperly

considered evidence of her desertion in determining the amount of

spousal support.   She contends that the trial court, once it

concluded that spousal support should be awarded, was obligated

to determine the amount of spousal support based upon the nine

factors enumerated in Code § 20-107.1.   In its letter opinion

dated August 16, 1995, the trial court properly discussed the

first eight factors and further considered the following evidence

under paragraph nine (9) of that section:
          The other factor to be considered is the
          uncorroborated finding of desertion by this
          Court previously.


     It is clear from this statement that the trial court

considered fault in determining the amount of spousal support

under Code § 20-107.1(9).   The only "uncorroborated finding of

desertion" was the alleged desertion by wife and not any fault on

the part of husband.   Thus, the trial court may have improperly

considered wife's desertion, and committed error with respect to

the wife's case against her husband.

     Is fault a factor to be considered under Code § 20-107.1(9)

(Supp. 1986) in effect at the time this case was commenced?     We

find no Virginia law expressly addressing this issue.     The

statute provides:
          Any maintenance and support shall be subject


                                 10
           to the limitations set forth in § 20-109, and
           no permanent maintenance and support shall be
           awarded from a spouse if there exists in such
           spouse's favor a ground for divorce under any
           provision of § 20-91 (1), (3) or (6) or
           § 20-95. . . .

           The court, in determining support and
           maintenance for a spouse, shall consider the
           following:

                     *   *   *    *    *    *    *

           (9) Such other factors, including the tax
           consequences to each party, as are necessary
           to consider the equities between the parties.

     In Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208 (1986),

this Court explained the statutory scheme of Code § 20-107.1 as

follows:
           The determination of spousal support is a
           two-step process: first, the court must
           determine whether either of the parties is
           barred from receiving support due to the
           existence of a marital fault amounting to a
           statutory ground for divorce; and, second, if
           no fault ground exists, then the court must
           weigh the relative needs and abilities of the
           parties in accordance with the statutory
           factors enumerated in Code § 20-107.1.

Id. at 26, 341 S.E.2d at 210.    Thus, once the trial court has

determined that a spousal support award is appropriate, the only

factors the trial court may consider in determining the amount of

the award are the "relative needs and abilities of the parties in

accordance with the statutory factors enumerated in Code

§ 20-107.1."   Id.

     Wife alleges that the trial court gave improper

consideration to marital fault (her uncorroborated desertion)



                                 11
under paragraph nine (9) in Code § 20-107.1, which resulted in an

award to her of only $1,500 monthly.   Husband argued at trial,

and the court agreed, that evidence of marital fault and the

circumstances contributing to the dissolution of the marriage

were proper considerations under paragraph nine (9) of Code

§ 20-107.1.

     We find that marital fault is not a factor to be considered

under paragraph nine (9) of Code § 20-107.1.   If the General

Assembly intended for a court to consider circumstances and

factors contributing to the dissolution of the marriage in

determining the amount of the award, it would have stated so

expressly in the enumerated factors.   In Code § 20-107.3 the

General Assembly intended for a court to consider the

circumstances contributing to the dissolution of the marriage in

determining the division of the marital property.   The statute

expressly includes in the enumerated factors the court must

consider, "[t]he circumstances and factors which contributed to
the dissolution of the marriage . . . ."   Code § 20-107.3(E)(5)

(emphasis added).   It chose not to do so with respect to the

amount of spousal support.

     Without attempting to envision all of the factors that might

be included in paragraph nine (9), we conclude that paragraph (9)

refers to economic and financial factors and not to factors that

contributed to the dissolution of the marriage.   As stated in

Dukelow, upon the determination that a wife is entitled to




                                12
spousal support, "the only question was the extent of her need

for support when balanced against her husband's ability to pay."

 Dukelow, 2 Va. App. at 26, 341 S.E.2d at 211.   The trial court

erred in considering marital fault as a factor under paragraph

nine (9).

     Wife claims that the trial court improperly relied upon

evidence of the value of husband's assets based on auction prices

he observed in Pennsylvania.   Husband testified that he "attended

an auction for forty million dollars worth of property, similar

to my own property.   At the auction sale the properties did not

bring half of the county appraised value . . . ."   As a result of

this sale, husband reduced the value of his real estate to

seventy percent of its assessed value.   He inserted this reduced

value in a financial statement and the statement was introduced

in evidence.   Husband's testimony and the financial statement

showing the seventy percent reduction in value of the assets were

introduced in evidence without objection.
     The trial court in its August 16, 1995 letter opinion stated

"[t]he Court has also considered . . . all of the stipulated

exhibits regarding [husband's] financial resources and

obligations, and the testimony and exhibit concerning his opinion

as to the value of his current assets based upon 70% of appraised

value due to an auction he recently attended in Pennsylvania."

     We do not address the admissibility and weight to be

attached to this evidence.   It was introduced without objection.



                                13
No ruling of the trial court will be considered as a basis for

reversal unless the objection was stated together with the

grounds therefor at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.

Rule 5A:18.   This rule applies to law and equity cases, including

divorce.   See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,

737 (1991) (en banc).     A claimed error must be brought to the

trial court's attention so that the court may consider the issue

and take corrective action to avoid unnecessary appeals,

reversals and mistrials.    A matter not in dispute before the

trial court will not be considered for the first time on appeal.
 Connelly v. Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244,

246 (1992).   While this Court will take notice of error when

necessary to satisfy the "ends of justice" exception to the rule,

our review of the record in this case does not disclose any

miscarriage of justice.     Id.

     Wife asserts that the trial court erred in allowing the

testimony of Frank Kessler over her objection.    Wife never

objected to the entire testimony of Frank Kessler.    She did

object at trial to specific questions propounded to Kessler, but

in her brief she has not identified or alluded to specific

questions and answers which she considers to be objectionable.

     She states that Kessler "testified as to the loss [husband]

would suffer if he were forced to sell his real estate holdings

in a quick liquidation sale," citing the appendix pages 254-260.



                                  14
Within these pages the trial judge twice sustained objections to

this type of testimony, once based upon lack of a proper

foundation and once upon relevance.    Wife has not referred to

specific objectionable testimony within these seven pages.    No

argument and no authorities have been given in accord with Rule

5A:20.    Wife alleges that Kessler's testimony was in the nature

of expert testimony, yet he was never qualified as an expert and

his area of expertise was never identified, citing appendix
251-263.   She did not point out in her brief the specific

testimony to which she was referring and has given no argument or

authority to support the same.

     Wife further alleges that the trial court refused to permit

her counsel to cross-examine Kessler with respect to husband's

success in the real estate business, citing appendix pages

267-268.   We have reviewed these pages and do not find that the

trial judge refused to permit wife's counsel to cross-examine

Kessler.   We find the following:
     Q.    And, Charlie Hurt has done very well here since
           you have known him, hasn't he?

            Mr. Tweel: Objection, Your Honor.   No
            foundation.

     A.     I don't know how Charlie Hurt has done.   I
            know what I have done.

            Court: calls for hearsay unless it's
            something [husband] has told you. Sustain
            it. Let's go to the next question.


     From this record, we find no merit to the wife's assertions

concerning the testimony of Kessler.   "Statements unsupported by



                                 15
argument, authority, or citations to the record do not merit

appellate consideration.    We will not search the record for

errors in order to interpret [a party's] contention and correct

deficiencies in a brief."    Buchanan v. Buchanan, 14 Va. App. 53,

56, 415 S.E.2d 237, 239 (1992).

     Several of the wife's remaining contentions will be

considered together.   She contends that the trial court failed to

determine and accord meaningful, substantive consideration to

husband's earning capacity, to her earning capacity, to her

standard of living established during the marriage, and to her

financial needs in determining the amount of the spousal support

award.
               In awarding spousal support, the trial
          judge has broad discretion. . . . The trial
          judge must consider all the factors
          enumerated in Code § 20-107.1. Consideration
          entails more than a recitation in the record
          or decree that all factors have been
          considered. We believe that the
          legislature's inclusion in 1982 of specific
          factors in the statute envisioned meaningful
          substantive consideration in the decision-
          making process. When the court does not
          quantify or elaborate on what weight or
          consideration it has given each factor, we
          must examine the record to determine if the
          award is supported by evidence relevant to
          those factors.

Gibson v. Gibson, 5 Va. App. 426, 434-35, 364 S.E.2d 518, 523

(1988).

     The transcript of the evidence and the exhibits are replete

with substantial evidence relating to all of the factors

enumerated in Code § 20-107.1.    The trial judge outlined in



                                  16
detail much of the evidence in support of his opinion and stated

that he considered all of the factors enumerated in Code

§ 20-107.1.

     The statute requires that the trial judge consider "[t]he

earning capacity, obligations, needs and financial resources of

the parties."   Husband argued before the trial court and this

Court that the trial judge could consider only income and

earnings in determining spousal support.    The argument is not

sound.   The word "resources" encompasses money, property, wealth

and assets of all kinds.   Therefore, it was proper for the trial

court to consider the husband's net worth as shown in the

financial statements in evidence, which ranged from a low of

approximately six million dollars to a high of twenty million

dollars.
     The trial court imputed to wife an annual income of $53,460,

after reviewing in its letter opinion her prior earnings, her

equitable distribution and real estate holdings.   Although the

trial judge did not specifically state the exact amount of

husband's earning capacity, the record contains ample evidence of

earning capacity to support his award of spousal support.

     In its letter opinion, the trial court reviewed the evidence

concerning the standard of living of the parties during the

marriage, and wife's financial needs as shown in the record.      The

judge discussed these factors in his letter opinion and obviously

considered them in reaching his decision.




                                17
     We conclude that there is meaningful substantive evidence in

the record to support each factor set forth in Code § 20-107.1

and that the trial court did consider all of the factors and

accorded them proper weight within the bounds of his discretion.

     Lastly, wife contends that the trial court erred when it

failed to order a lump sum spousal support award.   Code

§ 20-107.1 provides that "[t]he Court, in its discretion, may

decree that maintenance and support of a spouse be made in

periodic payments, or in a lump sum award, or both."      Although

the statute grants the trial judge discretion in deciding whether

to order periodic or lump sum payments, periodic payments are

generally the preferred form.    See Blank v. Blank, 10 Va. App. 1,

5, 389 S.E.2d 723, 725 (1990).   As we stated in Blank, "when

courts do make lump sum spousal support awards they do so because

of special circumstances or compelling reasons."    Id.    See also

Mosley v. Mosley, 19 Va. App. 192, 197, 450 S.E.2d 161, 164

(1994).   We find no abuse of discretion in the award of periodic

spousal support.

     In summary, whether spousal support should be paid is

largely a matter within the sound discretion of the trial court,

but it is a discretion to be exercised with reference to Code

§ 20-107.1 and established guidelines.   The record in this case

discloses that the trial court considered all of the factors

enumerated in the statute, except it should not have included the

wife's marital fault as a consideration under paragraph nine (9).



                                 18
We remand this case to the trial court with instructions that it

reconsider the $1,500 per month award of spousal support and

modify the award to the extent that the wife's "uncorroborated

desertion" may have affected the amount of the award.   In all

other respects, the decision of the trial court is affirmed.
                                        Affirmed in part,
                                        reversed and remanded
                                        in part.




                               19
