                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bumgardner, Humphreys and Senior Judge Hodges


FREDERICK M. SAXTON
                                            MEMORANDUM OPINION *
v.   Record No. 3179-01-1                       PER CURIAM
                                              APRIL 30, 2002
SHERRI J. SAXTON


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   Everett A. Martin, Jr., Judge

           (Michael S. Weisberg; Weisberg & Zaleski,
           P.C., on brief), for appellant.

           (J. Roger Griffin, Jr.; George A. Christie;
           Christie & Kantor, P.C., on brief), for
           appellee.


     By decree dated October 23, 2001, the trial court awarded

Sherri J. Saxton (wife) a divorce a vinculo matrimonii on the

ground of adultery committed by Frederick M. Saxton (husband).     On

appeal, husband contends the trial court erred in:     (1) awarding

the marital residence to wife; (2) holding husband solely

responsible for paying the second mortgage; (3) allotting wife

fifty percent of the "Mainstay" investments and requiring payment

within twelve months; (4) failing to apportion to husband any

tangible personal property in the residence; and (5) requiring

husband to pay attorney's fees and costs.   Upon reviewing the

record and the parties' briefs, we conclude that this appeal is


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit.   Accordingly, we summarily affirm the decision of

the trial court.   Rule 5A:27.

                             BACKGROUND

     On appeal, "we view the evidence and all reasonable

inferences in the light most favorable to the prevailing party

below . . . ."   Lutes v. Alexander, 14 Va. App. 1075, 1077, 421

S.E.2d 857, 859 (1992).   So viewed, the evidence proved that the

parties were married in 1980.    Two children were born of that

marriage, one of whom is still a minor.     The parties separated on

December 21, 1998, when husband left the marital residence.       On

January 21, 1999, wife filed a bill of complaint seeking a divorce

on the ground of, inter alia, adultery.

     On July 25, 2000, a commissioner in chancery conducted an ore

tenus hearing.   He filed his report on June 12, 2001.   In it, he

found by clear and convincing evidence that husband committed

adultery with Jeanne Evans, one of his employees, and

recommended wife be granted a divorce on that basis.      The

commissioner further recommended that the marital residence be

deeded to wife, that wife be solely responsible for payment of

the first mortgage, that husband be solely responsible for

payment of the second mortgage, that wife not receive spousal

support, and that the Mainstay accounts, which husband

unilaterally redeemed, be equally divided and that husband pay

wife her share within twelve months.      The commissioner also



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recommended that husband pay wife nearly half of her attorney's

fees and costs.

     On June 19, 2001, husband filed written exceptions to the

commissioner's recommendations regarding the marital residence,

the second mortgage, the Mainstay investments and repayment

schedule, and attorney's fees and costs.    On June 21, 2001,

husband filed the following additional exception:

          The Defendant objects and excepts to the
          Commissioner's failure to address the
          equitable distribution of tangible marital
          property in the marital residence in the
          context of the other recommendations by the
          Commissioner relative to the division of the
          marital property.

     Wife excepted to the failure to recommend spousal support.

She also contended the recommended amount for attorney's fees

and costs was inadequate.

     By letter opinion dated August 17, 2001, the trial court

overruled all exceptions other than husband's exception relating

to the distribution of the personalty in the residence.   The

trial court sustained that exception and directed the

commissioner to "file a supplemental report on this issue"

without hearing further evidence.   On August 29, 2001, the

commissioner filed a supplemental report.   On October 23, 2001,

the trial court entered a final order nunc pro tunc September

28, 2001, confirming and adopting the commissioner's

recommendations.



                              - 3 -
                              ANALYSIS

     Husband combined his arguments relating to the first three

issues, namely, awarding the marital residence to wife, holding

husband solely responsible for the second mortgage and awarding

wife fifty percent of the Mainstay investment accounts.    Husband

characterized those decisions as punitive.

     Code § 20-107.3(C) authorizes the court to order the

transfer of jointly owned marital property based upon a

consideration of the factors listed in subsection (E) of that

statute.   "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).

                              The House

     In overruling husband's exception to the recommendation

that wife be awarded the marital residence, the trial court

noted, inter alia, "the twenty-year marriage," wife's "role as

homemaker and primary caretaker of the children, her other

substantial non-monetary contributions to the marriage," the

effect husband's "pre-separation adultery had on the marriage"

                                - 4 -
and the fact that wife and children have occupied the house

since separation.

     The marital residence had a value of $120,000, with a balance

of $60,000 remaining on the mortgage.   In its decree, the trial

court explained that it "considered each of the elements in

Section 20-107.3(E)" prior to awarding the marital residence to

wife, who was to "be solely responsible for payment of the first

mortgage and all other household related expenses."

                      Second Mortgage Liability

     Code § 20-107.3(C) provides, in part, that "[t]he court

shall also have the authority 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."    "The purpose and nature of

the debt, and for and by whom any funds were used, should be

considered in deciding whether and how to credit or allot debt."

Gamer v. Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623

(1993).

     Husband admitted in his testimony before the commissioner

that he did not ask wife if he could sign her name to the 1997

second mortgage.    The commissioner found that husband was not a

credible witness and that he obtained the proceeds from the second

mortgage without the knowledge or implied consent of wife.    In

upholding the recommendation and overruling husband's exception,

the trial court relied, in part, on husband's "inability to

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account for his use of the proceeds from the second deed of

trust."    The trial court also relied upon evidence suggesting that

husband appropriated those funds for non-marital purposes

constituting waste.

                    Division of Mainstay Accounts

     The evidence demonstrated that husband redeemed six

Mainstay investment accounts valued at $38,533.09.     The

commissioner ruled that the accounts were marital property.

After hearing evidence and considering the "timing of

[husband's] use of the assets and his [extramarital] affair,"

the commissioner found that husband's use of those funds

amounted to "a waste of marital assets" in that there was

"simply no proof that he used these funds to in any way assist

[wife]."    As a result, the commissioner recommended that wife

was entitled to fifty percent of the value of the redeemed

accounts and that husband pay her within twelve months of the

entry of the final decree.

     In overruling husband's objection to the commissioner's

recommendation, the trial court remarked on the commissioner's

observation that husband's testimony lacked credibility and

agreed with the commissioner's findings after "[h]aving read the

transcript."    "[T]he 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



                                - 6 -
witness' testimony."    Anderson v. Anderson, 29 Va. App. 673,

686, 514 S.E.2d 369, 376 (1999).

     The trial court's decision regarding the above-referenced

subjects was an exercise of sound discretion.     There is no

presumption favoring an equal division of marital property.       See

Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831

(1986).   We recognize that "the trial court's job [in reviewing

an equitable distribution award] is a difficult one, and we rely

heavily on the discretion of the trial judge in weighing the

many considerations and circumstances that are presented in each

case."    Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,

870 (1990).

     The trial court stated that it considered all of the factors

contained in Code § 20-107.3(E) and indicated its approval of an

award equaling "about an 80/20 division."   Moreover, in overruling

objections to the commissioner's report, the trial court did not

find "the overall distribution of the marital property to be

punitive."    The award was supported by the evidence and was not

plainly wrong.    Accordingly, the trial court did not abuse its

discretion or commit reversible error.

                     Tangible Personal Property

     In ruling on husband's exception to the commissioner's

report regarding personalty in the marital residence, the trial

court explained:



                                - 7 -
          Only four items of tangible personalty were
          mentioned during the hearing: a couch in
          need of re-upholstering and a table in need
          of refinishing, a "depression" glass
          collection of unknown extent or value, and
          some sunroom furniture that was purchased
          four or five years ago for $3500. [Husband's
          attorney] is correct that the Commissioner
          made no specific recommendation about this
          property. Perhaps the Commissioner intended
          it go to [wife] with the residence. Perhaps
          he applied the maxim de minimis non curat
          lex. Perhaps he made no recommendation
          because he did not believe this to be an
          issue in the suit.

(Citations to transcript pages omitted).

     Because the commissioner failed to apportion these items,

the trial court sustained husband's objection and directed the

commissioner to file a supplemental report.   In it, the

commissioner stated:

               Your Commissioner in his consideration
          of this case, considered this particular
          matter to be a non-issue since there was no
          evidence presented by either side as to the
          current value, if any, of these items which
          were purchased a number of years ago.
               Your Commissioner sees no reason to
          have these items removed from the marital
          residence and so recommends.

     As a result, the trial court ordered in the final decree

that wife retain all furnishings in the marital home.

          In considering valuation of the marital
          estate, we have held that Code § 20-107.3
          "'mandates' that trial courts determine the
          ownership and value of all real and personal
          property of the parties." Nevertheless,
          "consistent with established Virginia
          jurisprudence, the litigants have the burden
          to present evidence sufficient for the court
          to discharge its duty."

                              - 8 -
Johnson v. Johnson, 25 Va. App. 368, 373, 488 S.E.2d 659, 662

(1997) (quoting Bowers v. Bowers, 4 Va. App. 610, 617, 359

S.E.2d 546, 550 (1987)).

     Husband presented no evidence at the ore tenus hearing as

to how many and what items of marital personal property were in

the house and their present value.     Therefore, the commissioner

and trial court were unable to classify, valuate, consider and

distribute that property.   Accordingly, the trial court did not

abuse its discretion in ordering the unnamed, unvalued

personalty to remain in the marital residence.

                     Attorney's Fees and Costs

     Any award of attorney's fees and costs to a party rests

with the sound discretion of the trial court and will only be

disturbed where there has been an abuse of discretion.     See

Rowand v. Rowand, 215 Va. 344, 346-47, 210 S.E.2d 149, 151

(1974).

     Wife is a teacher, and husband owns a restaurant.     Although

the record indicated that the parties earn substantially similar

annual incomes, the commissioner believed husband's "probable

income is greater than that" reported to the IRS.    In

recommending the award, the commissioner relied heavily on the

fact that husband was at fault for the dissolution of the

marriage.   In ruling on the parties' exceptions, the trial court

noted "[t]here was evidence that would have supported a finding

that [husband uses his business as a] private bank and that his

                               - 9 -
income is much higher than he claims."   The trial court found

there was sufficient evidence of income and expenses to support

the commissioner's recommendation that husband pay a portion of

wife's fees and costs.   Based upon our examination of the

record, we find no abuse of discretion in the trial court's

decision to order husband to pay nearly one-half of wife's

attorney's fees and costs.

                          Spousal Support

     Wife contends the trial court erred in failing to award her

spousal support.

     "A spousal support award is subject to the trial court's

discretion and will not be disturbed on appeal unless plainly

wrong or without evidence to support it."   Howell v. Howell, 31

Va. App. 332, 351, 523 S.E.2d 514, 524 (2000).

     After "consider[ing] all of the factors enunciated in

§ 20-107.1," the commissioner recommended that although wife is

"entitled to spousal support, none should be paid" in view of

the parties' apparently similar salaries and his other

recommendations.   Because the commissioner found that the

parties' incomes were substantially similar, the trial court

denied spousal support to wife, but reserved her right to later

seek it.   That decision was supported by credible evidence and

was not plainly wrong.




                              - 10 -
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                       Affirmed.




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