                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Willis
Argued at Norfolk, Virginia


JOHN C. LUMPKIN

v.           Record No. 1660-94-1          MEMORANDUM OPINION*
                                        BY JUDGE JOSEPH E. BAKER
SUZANNE MARIE KAZMARSKI LUMPKIN               JULY 25, 1995


             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   N. Wescott Jacob, Judge Designate
             John C. Lumpkin, pro se.

             Henry M. Schwan for appellee.



        John C. Lumpkin (husband) appeals from a decree of the

Circuit Court of the City of Norfolk (trial court) that granted

Suzanne Marie Kazmarski Lumpkin (wife) a divorce on the grounds

of adultery and desertion and made support and equitable

distribution awards.    Husband contends that in making the various

awards, the trial court erroneously failed to impute income to

wife; wrongfully ordered him to pay an excessive amount of

spousal and child support; mistakenly accepted the testimony of

the less credible appraisal witness; and erroneously failed to

credit him for monies he gave wife to be applied to her attorney

fees.

        In a counter appeal, wife asserts that the trial court erred

when it failed to impute income to husband due by reason of

husband having paid an excessive amount of salary to a secretary

____________________

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


with whom wife alleges husband was having an affair, and by

failing to deviate from the child support guidelines in order to

account for the counseling needs of one of their two children.

Finding no reversible error, we affirm the judgment of the trial

court.

     As the parties are knowledgeable of the extensive record in

this case, we state only those facts essential to an

understanding of this opinion.    The divorce decree was entered on

August 5, 1994.   It found that husband had committed adultery

with the secretary who wife contends was paid an excessive amount

of salary as an employee in a business owned by husband.        In

1986, when wife became pregnant with the second child born of the

marriage, wife stopped working at her registered nurse

profession.   She testified that her continued unemployment was

due to the need to take care of the children.       Husband claims

that her refusal to work at her profession was caused by her

attorney's advice not to seek work until after the case was

completed.    In this appeal, husband does not contest the grounds

upon which the divorce was granted.
                    I.   Failure to Impute Income

     Husband argues that wife could earn in excess of $18,000

annually, yet she refuses to seek employment.       In addition, he

asserts that wife will be able to earn income from the property

she receives from her equitable distribution share.      Wife




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contends that the two children are at a tender age, and that one

child presently requires special attention due to an emotional

illness.   Further, she asserts, the amount of income, if any,

from property she may receive is not yet computable.    The trial

court reviewed the evidence and declined to impute any income to

wife "at this time."    Thus, that door remains open for future

change upon a showing that consideration should be given.    Upon

our review of the record, we cannot say that the trial court's

decision was plainly wrong or without evidence to support it.

See Code § 8.01-680; Thomas v. Thomas, 217 Va. 502, 504, 229

S.E.2d 887, 889 (1976).

     Wife contends that the secretary with whom husband was

having an affair was overpaid in relation to other secretaries

employed in husband's business.     Husband presented evidence that

the trial court found tended to show that the secretary had

earned her salary.     Upon review of the record, we cannot say that

judgment of the trial court was plainly wrong or without evidence

to support it.   Id.

                        II.   Rebuttal Evidence

     Husband advised the trial court that a witness would testify

that wife had been told by her attorney to not seek work until

the case had been completed, and proffered the witness to

corroborate that statement.     The trial court did not decline to

consider the proffered evidence but responded, "Good.    We won't

hear it.   That's fine.   That settles that one."   It is clear that




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the trial court was aware of the alleged statement and concluded

that upon the whole record, wife was justified in not seeking

employment "at that time."      Upon this record we find no

reversible error in the decision.

                III.      Inclusion of Spousal Support

     Husband concedes that Code § 20-108.2(C) permits spousal

support to be considered as income to the recipient in

calculating the child support obligations of the parties only if

the spousal support is paid pursuant to a preexisting order or

written agreement.     Neither of these conditions are shown to be

relevant to this case.      Accordingly, the trial court did not err

in refusing to consider the amount of spousal support awarded to

wife when it determined the appropriate child support award.
                    IV.    Spousal and Child Support

     Husband further contends that the support awards were

excessive based upon the trial court's finding that his average

annual income was $72,000.      Wife argues that the awards were

within the guidelines and reasonable based upon husband's actual

income.   She bases that claim upon evidence that shows husband's

annual income has been on the rise for the past five years, and

that his latest annual income was $93,000.

     Premised upon an income of $6,000 per month, the trial court

ordered husband to pay spousal support of $18,000 annually, or

$1,500 per month.    Based upon $6,000 gross monthly income, the

guidelines disclose that an award of support for two children




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should be $1,186.   There is evidence in the record concerning one

child's health that justified the trial court's actual child

support award of $1,255 per month plus health insurance coverage.

A trial court is vested with broad discretion in fixing the

amount of support, and its decision will not be disturbed unless

it is clear that some injustice has been done.    Lapidus v.

Lapidus, 226 Va. 575, 580, 311 S.E.2d 786, 789 (1984).    We find

no abuse of trial court discretion in making the support awards.

     V.   Credit for Attorney Fees
     Husband testified that he gave wife $4,500 to be applied to

his attorney fees obligation.   Wife testified that husband had

agreed the children were to attend private school and that

without warning husband stopped paying tuition.   She further

testified, and husband agreed, that he knew wife used the $4,500

to make the tuition payments.   We cannot say that the trial court

was plainly wrong when it denied husband credit of $4,500 toward

his attorney fees obligation.

     Accordingly, for the reasons stated, the judgment of the

trial court is affirmed.
                                              Affirmed.




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