                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia


ANTOINETTE J. FERRIS

v.        Record No. 1617-94-2         MEMORANDUM OPINION * BY
                                    JUDGE JOHANNA L. FITZPATRICK
CHARLES W. FERRIS, III                     MARCH 5, 1996


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge
          James Emmett Anderson, for appellant.

          Denis F. Soden (Michael S. Huberman;
          Spinella, Owings & Shaia, on brief), for
          appellee.


     In this domestic appeal, Antoinette J. Ferris (wife) argues

that the trial court erred in:   (1) awarding wife only twenty

percent of the marital assets; (2) ordering wife to reimburse

Charles W. Ferris, III (husband) for payments made by husband on

marital assets during the pendency of the divorce; (3)

classifying the parties' antique wooden bed as husband's separate

property; (4) refusing to grant wife a continuance; (5) excluding

husband's retirement plans from the marital estate and failing to

award wife a percentage of those plans; (6) valuing the parties'

condominium at the tax assessment value; (7) ordering wife to pay

husband twenty percent of the negative equity in the parties'

condominium; and (8) failing to award wife spousal support and

attorney's fees.   For the reasons that follow, we affirm the
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
trial court.
                              BACKGROUND

     The parties married on July 8, 1988 in Chesterfield County.

After the marriage, wife adopted husband's daughter, Betsy, and

husband adopted wife's daughter, Rachel.      The parties separated

on January 23, 1992, when husband left the marital residence.

     Before the marriage, wife worked full time as a hairdresser

and earned $20,000 in 1987.    Her assets included a 1988 Ford

Escort and some antique furniture.    Husband worked as an engineer

for C&P Telephone Co., earning a salary of $56,000 per year.

Husband's assets at the time of the marriage included a house on

Ewes Court in Richmond, assessed at $112,200; a stock option

plan; a 401(k) plan; a Bell Atlantic retirement plan; and

insurance proceeds and settlement proceeds of over $490,000

received after the death of his first wife.
     During the marriage, the parties acquired three additional

properties:    a house on Stuart Avenue in Richmond, assessed at

$216,000; a condominium in Ocean View, assessed at $79,470; and a

lakefront property in Louisa County, assessed at $108,000.      Both

parties purchased the Stuart Avenue and Louisa County properties

and owned them as tenants by the entirety.      Husband began

purchasing the condominium before the marriage, and the original

deed of trust is solely in his name.       After the marriage, husband

gifted the condominium to himself and wife as tenants by the

entirety.




                                  2
     Husband was the primary source of income, and wife

maintained the household and cared for the children.   After

quitting her full-time job in August 1988, wife continued to work

part time at home.   Husband testified that she made between $150

to $200 per month cutting hair at home while wife testified that

she brought in about $500 per month.   Wife also participated in

renovating the Stuart Avenue house.

     After the parties separated, husband continued making

mortgage, insurance, tax, and utility payments on the parties'

properties.   Husband testified that the mortgage obligations

alone totaled over $70,000 during the period of separation.

Additionally, husband paid off the parties' credit card debt,

which totaled over $7,300.   Although wife did not make any

mortgage, insurance, or tax payments, she paid utility bills on

the Stuart Avenue property, where she was living, beginning in

June 1992.    She also paid some utility bills on the Louisa County

and Ocean View properties.   After the parties separated, wife

obtained full-time employment at a car dealership, where she

averages $1,100 per month.
     Husband presented numerous exhibits detailing the parties'

assets.   Husband estimated that his monetary contributions

represented ninety-seven percent of the total financial

contributions and that his nonmonetary contributions were

sixty-one percent.   Husband's nonmonetary contributions included

performing repairs on the parties' properties, keeping financial




                                  3
records, helping the children with their homework, and helping

the children get ready for bed and school.    Wife's testimony was

that her nonmonetary contributions to the marriage included

housekeeping, child care, and helping to renovate the parties'

Stuart Avenue home.

     In a letter opinion dated February 1, 1994, the trial court

awarded husband a divorce based on separation for more than one

year; granted husband eighty percent and wife twenty percent of

the marital assets; ordered wife to pay twenty percent of the

negative equity on the Ocean View condominium; ordered wife to

reimburse husband for fifty percent of maintenance payments made

during the pendency of the divorce; and awarded husband his

401(k) plan and Bell Atlantic retirement plan.     In a July 25,

1994 order, the trial court offset the sums owed by wife against

her twenty percent share of the marital estate; credited her with

one-half of the tax benefits on the marital property and the

utility bills she paid; and ordered husband to pay wife a

monetary award of $16,370.55.
                      DIVISION OF MARITAL ASSETS

     Wife argues that the trial court erred in awarding her only

twenty percent of the marital assets in light of her substantial

contributions to the marriage.

     In dividing marital property and determining the amount of

any monetary award, the trial court must consider the factors in

Code § 20-107.3(E).    Alphin v. Alphin, 15 Va. App. 395, 403, 424




                                  4
S.E.2d 572, 576 (1992).   "Unless it appears from the record that

the chancellor has abused his discretion or has failed to

consider or has misapplied one of the statutory factors, his

determination will not be reversed on appeal."       Klein v. Klein,

11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990).      Virginia law

does not require an equal division of marital assets.       Papuchis

v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830-31 (1986).

     In this case, the record supports the trial court's division

of the marital property--eighty percent to husband and twenty

percent to wife.    The duration of this marriage was only
three-and-one-half years.   The evidence established that

husband's monetary contributions to the marriage and the

acquisition and maintenance of marital property were

substantially greater than wife's.      Specifically, husband

contributed significant amounts of his separate property to buy

the Stuart Avenue house, the Louisa County house, and the Ocean

View condominium.   Husband's nonmonetary contributions to the

marriage were also significant in that he performed repairs, kept

the parties' financial records, and also cared for the children.

Wife's monetary contributions to the marriage were minimal, and

her nonmonetary contributions included caring for the children

and performing household duties.       Under these circumstances, the

trial court did not abuse its discretion in determining the

weight to be accorded to the parties' contributions and in

dividing the marital estate.



                                   5
             REIMBURSEMENT OF POST-SEPARATION EXPENSES

     Wife next argues that the trial court erred in ordering her

to reimburse husband for fifty percent of mortgage, insurance,

tax, and utility payments made by husband on marital property

during the pendency of the divorce.    We disagree.

     A trial court must consider "[t]he contributions, monetary

and nonmonetary, of each party in the acquisition and care and

maintenance of such marital property of the parties" in

determining the amount of any monetary award.    Code
§ 20-107.3(E)(2) (emphasis added).     Additionally, Code

§ 20-107.3(C) provides that the trial court has 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

marriage."   No abuse of discretion occurred in this case because

the trial court also credited wife with utility payments she made

on the parties' properties in determining the amount of the

monetary award.   Wife's argument that husband used marital funds

to pay post-separation expenses is without merit as the evidence

clearly established that husband used his separate,

post-separation earnings to make payments on the marital

property.
               CLASSIFICATION OF ANTIQUE WOODEN BED


     Wife asserts that the trial court misclassified an antique

wooden bed owned by the parties.

     On August 28, 1989, the parties purchased an antique wooden


                                   6
bed from Gates Antiques for $3,807.50 with marital funds.

Husband estimated the value of the bed at $3,500 and admitted

that the bed was marital property.    The trial court classified

the bed as husband's separate property and awarded the bed to

him.   Additionally, during the marriage, husband bought wife a

diamond ring for $8,710.32 on July 5, 1989, with marital funds.

The trial court found that the ring was wife's separate property

and awarded the ring to her.
       "Property acquired during the marriage is presumed to be

marital property, unless there is sufficient evidence that it is

separate property."    Lee v. Lee, 13 Va. App. 118, 121-22, 408

S.E.2d 769, 771 (1991).   The trial court erred in classifying

these properties as separate.   The antique wooden bed and the

diamond ring were clearly marital property because they were

acquired during the marriage with marital funds and before the

parties separated.    However, the errors become harmless when

viewed together, as the trial court awarded wife the value of the

diamond ring, which exceeded that of the bed.
                        DENIAL OF CONTINUANCE

       Wife next contends that the trial court erred in refusing to

grant a continuance so that wife's new attorney could prepare for

the equitable distribution hearing.

       The record establishes that the trial court approved the

withdrawal of wife's first attorney on June 29, 1993.   Wife did

not hire another attorney until October 19, 1993, two weeks



                                  7
before the equitable distribution hearing scheduled for

November 3, 1993.   In denying wife's attorney's request for a

continuance of the trial date, the trial judge stated as follows:
          The Court has set deadlines, and the fact
          that you came into it late is an unfortunate
          one. If one party sits and doesn't do
          anything until the deadline and then gets it
          extended, we would never get anything done
          that way. . . . When you get into the case
          you have to be aware of the trial
          proceedings, pretrial orders that have been
          entered with reference to deadlines for
          putting in evidence, and if you can't comply
          with it, you ought not get into it.

     "The decision whether to grant a continuance is a matter

within the sound discretion of the trial court.      Abuse of

discretion and prejudice to the complaining party are essential

to reversal."   Venable v. Venable, 2 Va. App. 178, 181, 342

S.E.2d 646, 648 (1986).   In the instant case, wife delayed for

over three months after the withdrawal of her first attorney

before retaining a new attorney.       Her failure to designate a new

attorney until immediately before the scheduled hearing resulted

in the lack of preparation time, not the trial court's refusal to

grant a continuance.
         EXCLUSION OF RETIREMENT PLANS FROM MARITAL ESTATE

     Wife also argues that the trial court erred in excluding

husband's 401(k) plan and Bell Atlantic retirement plan from the

marital estate and in failing to award her a percentage of those

plans.

     Husband participated in a 401(k) plan with his employer both



                                   8
before and during the marriage.   Husband's evidence established

that the value of the plan in December 1989 was $31,762.20 and

that the value in December 1991 was $21,703.38.   Thus, when the

parties separated in January 1992, the plan had decreased in

value approximately $10,000 due to the parties' withdrawal of

$20,000 from the plan in 1991 to pay for household, tuition, and

mortgage expenses.   Husband's evidence also showed that his Bell

Atlantic retirement plan increased in value approximately $8,200

between the date of marriage and the date of separation.

Pursuant to Code § 20-107.3(G)(1), the trial judge found "it

equitable to award the 401-K Plan and the Bell Atlantic

Management Pension Plan to [husband]."
     "Code § 20-107.3(G) provides that, upon consideration of the

factors set forth in Code § 20-107.3(E), the court may direct

payment of up to fifty percent of the 'marital share' of a

party's pension [or retirement benefits]."    Gamer v. Gamer, 16

Va. App. 335, 342, 429 S.E.2d 618, 624 (1993) (emphasis added).

This Court relies "on the trial judge's discretion in weighing

the particular circumstances of each case" in determining whether

a distribution of pension assets is fair.    Aster v. Gross, 7 Va.

App. 1, 7-8, 371 S.E.2d 833, 837 (1988).

     Although husband's pension assets were not specifically

listed as marital property, neither were they classified as

husband's separate property.   The trial judge's treatment of

husband's pension assets in a separate paragraph of his letter




                                  9
opinion was done in a manner that indicated he considered

husband's pension assets as marital property, but did not award

wife a portion of them.    Husband's evidence established that wife

benefitted from the $20,000 withdrawn from his 401(k) account

during the marriage and that his 401(k) plan decreased in value

in excess of the increase in value of his Bell Atlantic

retirement plan.    Thus, the trial court did not err in failing to

award wife an additional percentage of husband's pension assets.
                  VALUATION OF OCEAN VIEW CONDOMINIUM

        Next, wife contends that the trial court erred in valuing

the Ocean View condominium at its tax assessed value of $79,470.

        The evidence established that the tax assessment value of

the condominium decreased from $114,000 in 1992 to $79,470 in

1993.    In her deposition, wife testified that the parties

purchased the condominium for $120,000 and that its value "might

have stayed the same, but it wouldn't have gone down that

severe."    The only other evidence of the condominium's value in

the record was a 1993 listing agreement with a realtor,

indicating a sale price of $126,300.

        In this case, the trial court was not plainly wrong in

accepting the 1993 tax assessment value as evidence of the value

of the condominium and in giving less weight to wife's testimony

and the listing agreement.    A party claiming an interest in

marital property or claiming that the trial court erred in

evaluating an item of marital property has the duty to prove the




                                  10
value of the property.   See Bowers v. Bowers, 4 Va. App. 610,

617, 359 S.E.2d 546, 550 (1987).     Wife offered no reliable

evidence of value and did not object to using the tax assessment

value for other marital property.
               MORTGAGE ON OCEAN VIEW CONDOMINIUM

     Husband's evidence proved that the Ocean View condominium

had a tax assessment value of $79,470 in 1993 and an outstanding

mortgage with a principal balance of $91,748.42.    Thus, the

negative equity in the condominium was approximately $12,278.

The parties owned the condominium as tenants by the entirety, and

each assumed the risk that the asset might increase or decrease

in value during the marriage.
     The trial court accepted husband's value of the condominium

and determined that the negative equity in the condominium should

be apportioned between the two parties.    Because the court had

the authority to divide "the debts of the parties . . . incurred

prior to the dissolution of marriage," Code § 20-107.3(C), it did

not err in finding that wife was responsible for twenty percent

of the negative equity in the condominium.
       FAILURE TO AWARD SPOUSAL SUPPORT OR ATTORNEY'S FEES

     Wife contends that the trial court erred in failing to

consider her request for spousal support and in denying her

attorney's fees.   She also argues that the trial court should

have considered husband's adulterous behavior in determining

spousal support and her inability to pay her attorney's fees.



                                11
        In wife's cross-bill of November 1992, she requested spousal

support and attorney's fees.    However, at the final hearing held

November 3, 1993, wife failed to request the trial court to award

spousal support or attorney's fees.     In arguing attorney's fees,

wife's counsel acknowledged that "[t]he parties should bear their

own expenses."    Wife requested the Louisa County property and

$50,000 cash as a "fair resolution of this case."     In its letter

opinion of February 1, 1994, the trial court ruled that the

parties were responsible for their own attorney's fees and did

not address the issue of spousal support.     Wife filed exceptions

to the letter opinion on April 26, 1994, and objected to the

court's failure to award spousal support and attorney's fees.
        We hold that the trial court did not err in failing to award

wife spousal support or attorney's fees.     At the final hearing,

wife failed to raise the specific requests or arguments she now

raises on appeal.     See Rule 5A:18.   She did not request either

spousal support or a reservation of support.     Concerning

attorney's fees, wife acknowledged the parties' responsibility to

bear their own expenses in arguing against husband's request for

attorney's fees.

        Additionally, the record contains insufficient evidence to

determine wife's entitlement to spousal support and attorney's

fees.    In determining spousal support, a trial court must

consider "[t]he earning capacity, obligations, needs and

financial resources of the parties."     Code § 20-107.1(1).   Wife



                                  12
failed to present any evidence of her expenses and how much

support she needed.   She also failed to present any evidence of

the amount of attorney's fees incurred.
                       MOTION FOR SANCTIONS

     In relation to this appeal, wife filed a motion for

sanctions against husband pursuant to Rule 5A:25(g), arguing that

husband designated unnecessarily several hundred pages of

irrelevant documents for inclusion in the appendix.   We deny the

motion because the pages designated by husband were clearly

relevant to issues on appeal.
     Accordingly, the decision of the trial court is affirmed.
                                             Affirmed.




                                13
