                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


MARY BRUMSKILL
                                               MEMORANDUM OPINION *
v.   Record No. 0311-97-2                          PER CURIAM
                                                  JULY 29, 1997
AUSTIN E. BRUMSKILL


            FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
                     Richard S. Blanton, Judge

           (George H. Edwards, on brief), for appellant.
           (Phoebe P. Hall; Hall & Hall, on brief), for
           appellee.



     Mary Brumskill (wife) appeals the decision of the circuit

court denying her motion for reconsideration of its equitable

distribution decision.   Wife contends that the trial court (1)

erred in determining the amount of rent proceeds from the

parties' rental property subject to equitable distribution; (2)

erred by denying her motion for reconsideration and to set aside

the award for fraud; (3) erred by awarding her only twenty-five

percent of the marital share of the pension of Austin E.

Brumskill (husband); (4) erred by basing its equitable

distribution on fraudulent information; and (5) abused its

discretion by terminating her spousal support as a punitive

measure due to her counsel's withdrawal.   Wife withdrew several

issues asserting error in the court's granting a divorce on the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
ground that the parties lived separate and apart.   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.

                                I.

     Wife contends that the trial court erred by ordering her to

pay husband one-half the $10,350 in rent she retained from the

parties' jointly-owned rental property.   Wife argues that she

should be required to pay only one-half of $2,300, which was the

net profit she retained after payment of the mortgage on the

rental property.   However, the wife presented no evidence that

she had paid the mortgage from rent proceeds.   The trial court

did not allow either husband or wife to deduct any mortgage

payments they made on jointly-owned property.   Thus, while

husband paid the first and second mortgages of the marital

residence during the time wife continued to live there, he

received no corresponding credit for the property's increased

equity attributable to these post-separation payments.   We cannot

say the trial court's decision that each party bear a portion of

their shared debt and that they divide the rental income earned,

was plainly wrong.
     The trial judge did not abuse his discretion in refusing to

rehear this issue.   Following the evidentiary hearing, the

parties submitted memoranda concerning equitable distribution

issues.   No issue was raised at that time concerning the rents.




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  This issue was raised only after the judge's ruling.      In view

of the lack of proof concerning the source of the mortgage

payments, the trial judge did not err in refusing to reopen the

evidence.

                                 II.

     In Stipulation 24, under the section entitled "Wife's

Employment History," the parties stipulated that "[w]ife was

employed by Philip Morris doing night work, taking tobacco out of

a hoggie from 2/69 - 7/69."    Almost two months after issuance of

the court's opinion letter setting out its findings of fact, wife

filed a motion to set aside the court's decision on the basis of

fraud, contending that she never worked at Philip Morris.     We

find no error in the trial court's refusal to set aside its

decision.
     As the party seeking to set aside a final order on the basis

of fraud, wife had the burden of proving "'(1) a false

representation, (2) of a material fact, (3) made intentionally

and knowingly, (4) with intent to mislead, (5) reliance by the

party misled, and (6) resulting damage to the party misled.'"

Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723

(1991) (citation omitted). 1
     1
      Wife did not clearly indicate either before the trial court
or on appeal whether her argument was based on actual or
constructive fraud.

            [C]onstructive fraud . . . [requires] a
            showing by clear and convincing evidence that
            a false representation of a material fact was
            made innocently or negligently, and the



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     Wife relies on the text of Stipulation 40, which provided:
          The attached records were produced by the
          parties' employers and are hereby stipulated
          into evidence for purposes of showing the
          parties [sic] work histories, the dates and
          places of employment, the job performance,
          and the pay and benefits of the parties, as
          well as the reasons given by the employer or
          employee for any termination of employment by
          the employer or the employee and any
          disciplinary actions.


That stipulation referenced an Exhibit D.   Wife assigns fraud,

or, at a minimum, a significant mistake, to the fact that

Exhibit D did not reflect her employment at Philip Morris.
     However, the stipulation does not purport to encompass all

employment records.   It included an application, signed by wife

in 1986, listing Philip Morris employment from "2-69 [to] 07-69"

as previous work experience.   The wife does not allege that the

signature on the application was not her signature.   Thus, the

representation made in the exhibit was made by the wife.

     The trial court did not err in refusing to reopen the case.

These records were available for review by wife's counsel.

Counsel apparently failed to review the records until after

          injured party was damaged as a result of his
          reliance upon the misrepresentation. . . .
          Additionally, [it requires] . . . "clear and
          convincing evidence that one has represented
          as true what is really false, in such a way
          as to induce a reasonable person to believe
          it, with the intent that the person will act
          upon this representation."

Mortarino v. Consultant Eng'g Servs., Inc., 251 Va. 289, 295, 467
S.E.2d 778, 782 (1996) (citation omitted). We find no evidence
to support either element of constructive fraud.



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signing the stipulation.    Furthermore, the husband testified at

the September 20, 1996 hearing in some detail concerning the

efforts he made early in the marriage to obtain a job for wife at

Philip Morris.    Both the wife and her counsel were present.

Although wife's counsel cross-examined husband, the wife raised

no challenge to the husband's testimony concerning her brief

employment at Philip Morris.    The trial court found the husband's

testimony to be credible.
        We find no evidence supporting wife's allegations of fraud

and find no error in the trial court's refusal to reopen the

case.    For the reasons stated forth above, we find no error in

the trial court's reliance on the evidence submitted by the

parties.

                                 III.

        "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).    "Unless it appears from the record that

the trial judge has not considered or has misapplied one of the

statutory mandates, this Court will not reverse on appeal."

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989).    "Virginia's statutory scheme of equitable distribution

does not have a presumption favoring an equal distribution of

assets."     Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d 572,




                                   5
577 (1992).    See Papuchis v. Papuchis, 2 Va. App. 130, 132, 341

S.E.2d 829, 830 (1986).

     Under Code § 20-107.3(G), a trial court may not award more

than fifty percent of the marital share of a pension.   Here, the

trial court awarded the wife twenty-five percent of the marital

share of husband's pension and fifty percent of all other marital

assets.   The wife posits that the trial court relied on erroneous

evidence of her one-time employment at Philip Morris.   It is true

that the trial court noted wife's lost opportunity to earn a

retirement similar to that earned by husband.   The trial court

stated:
            In regards to the pension and profit sharing
            funds with Philip Morris, all of the monetary
            contributions were provided by the husband.
            While the wife had the same opportunity at
            Philip Morris, she chose to leave that
            employment. Additionally, the wife chose to
            cash in her retirement fund with the
            Commonwealth of Virginia. However, as
            previously discussed, the wife did maintain
            the home and care for the husband while he
            worked each day at Philip Morris.


     It is apparent that the trial court considered the parties'

respective monetary and nonmonetary contributions to the marriage

as well as other statutory factors, not just the wife's brief

Philip Morris employment, when making its equitable distribution

decision.   The court contrasted the husband's history of

employment against that of the wife, noting that the husband

"commuted approximately 100 miles round trip per day while

working shift work" and that "the vast majority of the monetary



                                  6
contributions were provided by the husband."   On the other hand,

the trial court found that the wife "held various jobs during the

marriage but none for a long period of time, . . . [m]any of the

jobs that the wife held during the marriage were part-time[, and

wife] . . . testified that she did not seek further full-time

employment because she 'didn't have to do so.'"   The parties were

married for over twenty-five years and had no children.

     We cannot say, based upon the record, that the trial court

failed to consider the statutory factors as they related to the

evidence.
                                IV.

     At the hearing scheduled for the presentation of evidence on

the issue of permanent spousal support, the wife presented no

evidence and wife's counsel withdrew.   The transcript indicates

that the court viewed the wife's motion for reconsideration as

groundless, noting that "with all the depositions that were

taken, with all the testimony that's been taken in this

courtroom, there was more than ample opportunity for [wife] to

deny that she worked at Philip Morris."   The court further noted

that "[i]t troubles me that this matter is not going to end today

because it should."   The trial court did not believe that "it's

in anybody's best interest for this litigation to continue."

Nonetheless, the trial court granted wife's counsel extensive

leeway to exercise whatever options she felt were ethically

required.




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     As the party seeking permanent spousal support, the wife

bore the burden to present evidence of her needs and expenses.

Wife and her counsel elected to seek a continuance rather than

present evidence at the scheduled hearing, thereby further

delaying a final resolution.   Unquestionably, by discontinuing

all support payments until further order, the trial court

intended to ensure that the wife would move quickly toward

resolution of the issue.   Under the circumstances, we do not find

this action to be punitive.    In the absence of proof by the wife

regarding her current needs, we cannot say the trial court abused

its discretion by suspending the payment of additional spousal

support until further order.
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                         Affirmed.




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