                    COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia


CYNTHIA MARGOUPIS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1168-98-4                  JUDGE WILLIAM H. HODGES
                                              FEBRUARY 23, 1999
THOMAS MARGOUPIS


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         F. Bruce Bach, Judge

            Morgan Brooke-Devlin for appellant.

            David E. Jones for appellee.


     Cynthia Margoupis (wife) appeals the decision of the circuit

court vacating its original decree of divorce and granting Thomas

Margoupis (husband) a new trial based upon newly-discovered

evidence.    Wife raises the following issues on appeal:

     (1)    whether the trial court erred by vacating the first
            final decree of divorce and granting husband a new
            trial;
     (2)    whether the trial court erred by granting husband's
            motion for suspension of support pending appeal;
     (3)    whether evidence supports the trial court's award of
            equitable distribution, spousal support, and child
            support;
     (4)    whether the trial court abused its discretion in
            awarding husband attorney's fees and denying her
            attorney's fees when husband failed to sustain his
            burden of proof at the retrial; and
     (5)    whether wife should be awarded attorney's fees and
            costs incurred in this appeal.
In his response, husband raises two additional issues.     Husband

contends that the trial court erred (1) in granting a divorce on

the ground of a one-year separation despite the fact that no

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
evidence supported wife's exceptions to the commissioner's

finding that she deserted the marriage; and (2) by awarding wife

spousal support.    Husband also contends that wife's request for

appellate attorney's fees is not justiciable.    We find no error,

and affirm the decision of the trial court.

     Evidence on the grounds for divorce was heard by a

commissioner in chancery.    The trial court received the

additional evidence ore tenus.     On appeal, under familiar

principles,

            we view [the] evidence and all reasonable
            inferences in the light most favorable to the
            prevailing party below. Where, as here, the
            court hears the evidence ore tenus, its
            finding is entitled to great weight and will
            not be disturbed on appeal unless plainly
            wrong or without evidence to support it.

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.

15, 20, 348 S.E.2d 13, 16 (1986).

           Vacation of Divorce Decree and Grant of New Trial

     The party seeking a new trial based upon a claim of

newly-discovered evidence has the burden of establishing that the

evidence

            (1) appears to have been discovered
            subsequent to the trial; (2) could not have
            been secured for use at the trial in the
            exercise of reasonable diligence by the
            movant; (3) is not merely cumulative,
            corroborative or collateral; and (4) is
            material, and such as should produce opposite
            results on the merits at another trial.

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
(1983).    See Carter v. Commonwealth, 10 Va. App. 507, 512-13, 393




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S.E.2d 639, 642 (1990).   The granting of such a motion is not

favored, considered with special care and caution, and awarded

with great reluctance.    See Odum, 225 Va. at 130, 301 S.E.2d at

149.   Whether a new trial will be granted is a matter committed

to the sound discretion of the trial court, and its decision will

not be reversed except for an abuse of discretion.     See Carter,

10 Va. App. at 514, 393 S.E.2d at 642.

       In a motion filed within twenty-one days of the entry of the

final divorce decree, husband alleged that newly-discovered

photographs demonstrated that wife misrepresented the nature of

her relationship with Mountain Kim.     Husband supported his motion

with an affidavit.   The trial court ruled that the allegations,

if true, could have a bearing on the spousal support and

equitable distribution trial, and vacated the final decree.     We

find no error in the trial court's action to preserve the matter

for further consideration of husband's allegation.

       We also find no merit in wife's contention that the trial

court erred as a matter of law by failing to make the necessary

findings prior to ordering a new trial.     Both the transcript of

the hearing on husband's motion and the court's order of January

24, 1997, demonstrated that the trial court made sufficient

findings.

       Throughout the first proceeding, wife denied any financial

or romantic relationship with Kim.      She testified that she paid

Kim rent, that she received no money from him, that they took two

specific trips together, and that they were not romantically



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involved.   At the second trial, after the photographs were

discovered but returned to wife in settlement of the criminal

complaint she registered against Kim's son, wife asserted her

Fifth Amendment rights in response to questions concerning her

relationship with Kim and their travels.   Evidence presented at

the second trial demonstrated that payments to Kim's business

were endorsed to wife, who then deposited the checks into her

account.

     Contrary to wife's contentions on appeal, the

after-discovered evidence was relevant to the accuracy of wife's

testimony at the first trial and to her claimed expenses.     We

find no error in the trial court's decision to grant husband's

motion for a new trial.

                       Suspension of Support

     Wife contends that the trial court erred when it suspended

wife's spousal support while she appealed its order vacating the

final decree.   We disagree.   "The orderly administration of

justice demands that when an appellate court acquires

jurisdiction over the parties involved in litigation and the

subject matter of their controversy, the jurisdiction of the

trial court from which the appeal was taken must cease."    Greene
v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982).      After

the appellate court acquires jurisdiction over a matter,

modifications can be made only with leave of the appellate court.

See id.




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     However, modification of an order is distinct from

suspension of the order.    Code § 8.01-676.1 provides that "[t]he

court from which an appeal is sought may refuse to suspend the

execution of decrees for support and custody, and may also refuse

suspension when a judgment refuses, grants, modifies, or

dissolves an injunction."   The Supreme Court noted that

          the General Assembly specifically has
          addressed the suspension of a support order
          pending appeal. Generally, a party appealing
          an ordinary judgment is entitled to have the
          execution of the judgment suspended pending
          an appeal upon the filing of a sufficient
          appeal bond or irrevocable letter of credit.
          Code § 8.01-676.1(C). In contrast, a party
          is not entitled as a matter of course to
          suspension of a judgment for spousal support
          pending appeal. Code § 8.01-676.1(D)
          authorizes a court to refuse to suspend such
          orders.

Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993).

Thus, a trial court may, but is not required to, refuse to

suspend an award of spousal support pending appeal.   This Court

noted that Code § 8.01-676.1(D) empowers "the trial court in a

civil proceeding . . . to suspend or refuse to suspend the

execution of its judgment, decree or order during the pendency of

an appeal."   Decker v. Decker, 17 Va. App. 562, 564, 440 S.E.2d
411, 412 (1994) (emphasis added).

     The trial court's final decree was vacated by order entered

January 24, 1997.   The trial court lost jurisdiction to modify

this order when wife's appeal was filed with this Court.

However, the trial court retained authority to suspend its order




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of spousal support during the pendency of the appeal.        Code

§ 8.01-676.1(D).

                        Sufficient Evidence

     Wife contends that insufficient evidence supports the trial

court's decision on equitable distribution, spousal support, and

child support.   We disagree.   The trial court found that evidence

presented by husband at trial was sufficient to demonstrate that

wife failed to truthfully describe the nature of her relationship

with Kim.   The trial court specifically found that it did not

believe wife's testimony concerning the payments she received

from Kim:   "As far as spous[al] support, I've reconsidered

spous[al] support, enlightened by my findings of what your real

expenses were as opposed to what you testified to, and I am

setting spous[al] support at One Hundred Fifty Dollars per

month."   The trial court considered the evidence presented by

husband concerning the financial benefits wife received from Kim

and whether those benefits affected the amount of spousal support

to which wife was entitled.     See Collier v. Collier, 2 Va. App.

125, 129, 341 S.E.2d 827, 829 (1986).     Evidence in the record

supports the trial court's decision to adjust the amount of

spousal support previously ordered.      We find no error.

     Because the amount of child support was readjusted pursuant

to the modified spousal support award, we also find no error in

the child support award.

     The trial court granted husband an additional five percent

share of his 401(k) pension plan as reimbursement for earnings



                                 - 6 -
lost due to a loan taken from the pension during the marriage.

While on appeal wife objects to this ruling, she did not specify

how it was erroneous.    "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).    Evidence supports the trial

court's equitable distribution decision, as modified.

     There was no error in the trial court's decision to limit

the issues on retrial to those possibly tainted by wife's failure

to testify accurately.    While wife alleged that husband's income

was underreported, she did not file a motion to bring that issue

before the court and the trial court ruled that it would not

consider that issue in the absence of any motion.    The trial

court considered the evidence before it.     Therefore, the trial

court's decision on equitable distribution, spousal support and

child support will not be set aside.

                           Attorney's Fees
     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is 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



                                - 7 -
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).

     Wife contends that the trial court erred by awarding husband

attorney's fees incurred in the second trial while denying her

additional fees.    We disagree.    Wife's misrepresentations on

material and relevant facts warranted the new trial.        Contrary to

wife's assertion on appeal, the trial court found that husband's

allegations were meritorious.      We cannot say that the award was

unreasonable or that the trial judge abused his discretion in

making the award.

                      Attorney's Fees on Appeal

     We find no merit in wife's appeal.        Therefore, we decline

her request for appellate attorney's fees.        However, we reject

husband's contention that wife raised a non-justiciable matter by

seeking appellate attorney's fees.         See O'Loughlin v. O'Loughlin,

23 Va. App. 690, 479 S.E.2d 98 (1996).

                         Grounds for Divorce

     The trial court granted the parties a divorce on the basis

of a one-year separation.   Husband contends that the trial court

abused its discretion by rejecting the commissioner's finding

that husband proved wife deserted the marriage because there was

no factual basis for wife's exceptions to the commissioner's

report.   "It is well established that 'where dual or multiple

grounds for divorce exist, the trial judge can use his sound

discretion to select the grounds upon which he will grant the



                                   - 8 -
divorce.'"    Williams v. Williams, 14 Va. App. 217, 220, 415

S.E.2d 252, 253 (1992) (citation omitted).   Evidence supported

the ground on which the trial court granted the divorce.    We find

no abuse of discretion in the trial court's decision not to award

husband a divorce on the ground of desertion.

                      Award of Spousal Support

     Husband also contends that the trial court erred by awarding

wife any spousal support in light of the evidence that she

deserted the marriage.   Assuming without deciding that the

evidence supported a finding of desertion by wife, her fault

would not necessarily bar spousal support.   See Code § 20-107.1.

Wife testified she was working three jobs.   The trial court

reduced the amount of spousal support wife received after

determining she failed to accurately disclose her income and

expenses.    Based upon the evidence, the trial court found that

wife was entitled to $150 in monthly spousal support.   Husband

has failed to demonstrate that the trial court erred in making

that award.

     In conclusion, we affirm the decision of the trial court

granting husband a new trial, suspending spousal support pending

wife's first appeal and retrial, modifying spousal support and

child support, modifying the equitable distribution award, and

awarding husband attorney's fees incurred in the second trial.

We find no error in the trial court's decision to award the




                                - 9 -
parties a divorce on the ground of a one-year separation or to

award reduced spousal support to wife.

                                             Affirmed.




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