                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Baker, Elder and Fitzpatrick


JO ANNE PHELPS, F/K/A
 JO ANNE GRAZEL
                                               MEMORANDUM OPINION *
v.   Record No. 2511-96-1                          PER CURIAM
                                                 APRIL 22, 1997
CHRISTOPHER P. GRAZEL


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                         John K. Moore, Judge
            (Jo Anne Phelps, pro se, on briefs).

            (James A. Evans; Dinsmore, Evans & Bryant, on
            brief), for appellee.



     Jo Anne Phelps (wife) appeals the decision of the circuit

court setting awards of child and spousal support, equitable

distribution, attorney's fees and costs.    Christopher P. Grazel

(husband) was ordered to make monthly payments of $1,000 in

spousal support and $1,057 in child support.      Wife contends the

trial court erred by: (1) accepting and considering the parties'

December 1, 1995 stipulation; (2) ruling on issues already

resolved through the parties' previously incorporated agreements;

(3) failing to follow the statutes on classification and

valuation of property, legal fees, costs and sanctions; (4)

interpreting the parties' agreement as limiting the court's

ability to receive evidence on child and spousal support

statutory factors; (5) interpreting the parties' agreement as
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
limiting an award of interest on husband's financial accounts;

(6) failing to apply the proper version of the statute; and (7)

allowing husband to exempt tax-deferred income from inclusion in

child support calculations.   Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit.

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

Rule 5A:27.

     Husband commenced this action by filing of a bill of

complaint on September 5, 1989.   On April 1, 1993, the parties

executed a hand-written agreement addressing property and support

issues.   The trial court incorporated that agreement into a

decree entered March 11, 1994.    That decree referred to a

commissioner in chancery the determination of "financial

accounts" set out in paragraph 13 of the agreement.   The parties

executed a second hand-written agreement on June 3, 1994.     The

trial court incorporated both agreements into the final decree of

divorce entered September 13, 1996.   In addition, the parties

entered into a stipulation which was read into evidence before

the commissioner on December 1, 1995.
     The commissioner in chancery received evidence ore tenus,

and "due regard [must be given] to the commissioner's ability

. . . to see, hear, and evaluate the witness at first hand."

Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 297 (1984).      Both

parties filed exceptions to the commissioner's report, some of

which were sustained.
          The chancellor is necessarily vested with


                                  2
          broad discretion in the discharge of the
          duties . . . [Code § 20-107.3] imposes upon
          him. Unless it appears from the record that
          the chancellor has abused his discretion,
          that he has not considered or has misapplied
          one of the statutory mandates, or that the
          evidence fails to support the findings of
          fact underlying his resolution of the
          conflict in the equities, the chancellor's
          equitable distribution award will not be
          reversed on appeal.


Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368

(1987) (citation omitted).
                                Issue 1

     Wife challenges the court's reliance upon the parties'

December 1, 1995 stipulation.    Appellate courts in Virginia look

"with favor upon the use of stipulations . . . which are designed

to narrow the issues and expedite the trial or settlement of

litigation."   McLaughlin v. Gholson, 210 Va. 498, 500, 171 S.E.2d

816, 817 (1970).   Wife made no objection to the stipulation which

set out the parties' agreement, when it was read into evidence

before the commissioner, and there is no allegation that her

attorney's actions were unauthorized, therefore, the stipulation

was binding upon the parties.     See Parker v. DeBose, 206 Va. 220,

223-24, 142 S.E.2d 510, 512-13 (1965).    Wife's evidentiary

challenges to the stipulation are without merit.

                                Issue 2

     Wife questions whether "the parties could enter into an

additional agreement to change or encumber this 1993 court order,

by virtue of agreements incorporation, award of support."




                                   3
Nothing in the first agreement or the decree incorporating the

first agreement barred the parties from further negotiating the

issues outstanding between them.       This contention is without

merit.

                                Issue 3

        "Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it."     Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990).    In determining the equitable

distribution of property, the trial court must first classify the

property as separate or marital, then value the property, and,

finally, determine the distribution of the property upon

consideration of the factors found in Code § 20-107.3(E).       See

Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436

(1991).    The most appropriate date for classification is the date

of the parties' last separation.       See Price v. Price, 4 Va. App.

224, 231, 355 S.E.2d 905, 909 (1987).      The most suitable date for

valuation is generally the evidentiary hearing date or trial

date.     Id. at 232, 355 S.E.2d at 910.    However, the parties may

agree to an alternative valuation date.

        The record indicates that, in the December 1995 stipulation,

the parties agreed to use April 1, 1993 as the valuation date for

husband's net worth.    Wife's contention that the commissioner

erred by failing to use 1995 or later valuation date is contrary




                                   4
to the evidence.

     Wife contends that husband knowingly commingled his separate

property with marital assets, thereby transmuting these separate

assets into marital property to which, by agreement, wife is

entitled to a fifty percent share.    We agree that under the law

in effect when this matter was commenced, Code § 20-107.3 did not

"'recognize a hybrid species of property.'"    Ellington v.

Ellington, 8 Va. App. 48, 53, 378 S.E.2d 626, 628 (1989) (quoting
Smoot v. Smoot, 233 Va. 435, 441, 357 S.E.2d 728, 731 (1987)).

"Property must be classified as either all marital or all

separate, not both."   Id.   However, the record reflects that,

pursuant to the terms of the parties' agreement, husband received

a credit of $44,895 for his premarital separate accounts.     The

remaining items were found to be marital property equally divided

between the parties.   We find no error.

     Wife also challenges the court's distribution of the

parties' Indvidual Retirement Accounts (IRAs).   Under the 1993

agreement, the parties agreed to split the IRAs equally as of the

date of separation, excluding post-separation contributions.      The

reference in the 1994 agreement to the waiver of interest on

financial accounts excluding IRAs did not modify this original

agreement.   Therefore, the trial court's order complies with the

terms of the parties' agreement and wife's challenge is without

merit.

     The record reflects the fact that the parties presented



                                  5
substantial evidence before the commissioner.      Wife presented her

evidence related to the commingling and transmutation of assets.

Numerous exceptions based upon challenges to the valuation of

assets were filed by both parties and were considered by the

court.   The court sustained several of wife's exceptions.     As the

trial court's decision is supported by evidence, we find no

reversible error in the court's valuation or classification of

these assets.
     Awards of costs or attorney's fees are submitted to the

sound discretion of the trial court and are 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).   The parties agreed husband would pay

$2,500 in wife's attorney's fees.      The court also ordered husband

to pay seventy-five percent of the costs.      Based on the number of

issues involved and the respective abilities of the parties to

pay, we cannot say that the award was unreasonable or that the

trial judge abused his discretion in making the award.      We find

no grounds for sanctions against husband.
                              Issue 4

     In the 1994 agreement, the parties agreed that, for the

period April 1, 1993 through March 31, 1994, spousal support was

$1,200 per month and child support was $811.      The December 1,



                                   6
1995 stipulation noted that there were no spousal support

arrearages through November 1995.    The court found no child

support arrearage, and wife's argument has failed to demonstrate

reversible error.

     Wife also alleges that the trial court erred by failing to

modify support in light of changed circumstances.   We find that

contention without merit.   We find no support for wife's

allegation that the commissioner prevented her from fully

presenting evidence as to the needs of the parties' child or that

the commissioner only considered husband's W-2 income.    As the

amount of spousal support comports with the terms of the parties'

agreement and the amount of child support was determined based

upon the presumptively correct statutory guidelines, we find no

error.
     Wife contends that the court erred in using the 1996

guidelines to determine child support.   We reject wife's

contention that the court was obligated to use the previous

guidelines.   As we stated in Cooke v. Cooke, 23 Va. App. 60, 474

S.E.2d 159 (1996):
          The wife and the trial court mistakenly rely
          on Gaynor v. Hird, 11 Va. App. 588, 400
          S.E.2d 788 (1991), to support the contention
          that the instant award is controlled by the
          guidelines which pertained when wife filed
          her petition. In Hird, we concluded that, in
          the absence of a contrary legislative intent,
          the authority of a trial court to order the
          transfer of property in equitable
          distribution was limited by the statute in
          effect at the commencement of that action.
          Id. at 590-91, 400 S.E.2d at 789. In
          contrast, the statutory scheme established by



                                 7
          Code §§ 20-107.2, -108, -108.1, and -108.2,
          and related enactments, manifest a clear
          legislative intent that the courts of this
          Commonwealth determine the issue of child
          support with contemporaneity, in
          consideration of prevailing circumstances and
          consistent with existing guidelines. The
          application of a repealed guideline schedule
          to ascertain a current award would subvert
          this legislative design.


Id. at 65, 474 S.E.2d at 161.    The parties agreed to compute

child support pursuant to "the guidelines."     Wife's contention

that the 1993 guidelines applied is without merit.
                                Issue 5

     Wife contends that paragraph 7 of the June 1994 agreement

improperly linked equitable distribution and spousal support.

Wife further contends that she could not legally waive her right

to interest earned on husband's financial accounts, and the trial

court erred by finding her waiver valid.

     No authority supports wife's contention.      The parties were

free to make whatever arrangements for support and distribution

they found mutually satisfactory.      Moreover, pursuant to the

parties' agreement, the trial court entered an order setting

spousal support separately from its equitable distribution

monetary award.   Therefore, wife's contention is without merit.

     Wife also contends that there was no evidence that she

agreed to waive her right to interest on these accounts beyond

the period of April 1, 1993 through March 31, 1994.     The trial

court found convincing evidence indicating wife made an

indeterminate waiver in exchange for the monthly spousal support


                                   8
payment of $1,200.   As the court's finding was supported by

evidence, we find no reversible error.

                               Issue 6

     Wife correctly notes that the court was required to apply

the version of Code § 20-107.3 in effect at the time this matter

commenced in 1989.   Both the commissioner and the trial court

applied the correct version.

                               Issue 7
     Wife challenges the court's decree excluding husband's

tax-deferred income from inclusion in the calculation for

purposes of child and spousal support.   Wife's references to the

record do not support her allegation that there were additional

sources of unaccounted income.   We find wife's argument without

merit.

     Wife's request for interest on judgment is denied.

     Accordingly, the decision of the circuit court is summarily

affirmed.
                                                          Affirmed.




                                  9
