                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia


JAMES J. MORTIMER

v.        Record No. 0418-95-4          MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
TERI L. MORTIMER                          DECEMBER 29, 1995


              FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                         James L. Berry, Judge
          Marilyn Ann Solomon for appellant.

          Mark Allen Vann (Chasler, Adrian and Bowman,
          P.L.C., on brief), for appellee.



     On appeal from the trial court's decree of January 24, 1995,

granting James Mortimer and Teri Mortimer a divorce a vinculo

matrimonii, James Mortimer contends that the trial court erred

(1) in awarding custody of the parties' two minor children to Ms.

Mortimer, (2) in awarding spousal support to Ms. Mortimer, (3) in

determining the equitable distribution award, and (4) in awarding

attorney's fees to Ms. Mortimer.    We find no error and affirm the

judgment of the trial court.

     Mr. and Ms. Mortimer were married on August 25, 1984 in

California.    At the time of their separation on October 16, 1992,

they had two minor children, Ashlee age 6 and Justin age 3.

     On January 22, 1993, the parties entered into a joint

consent decree giving both parents legal custody and Ms. Mortimer

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
physical custody.   Under the decree, Mr. Mortimer was required to

pay $650 a month in child support.

     In June, 1993, Ms. Mortimer moved with the children to

California without giving notice to Mr. Mortimer.    Mr. Mortimer

petitioned for a change in custody because Ms. Mortimer had taken

the children out of the state in violation of his right to joint

custody.   The Juvenile and Domestic Relations District Court of

Frederick County entered an order on November 24, 1993, giving

both parents legal custody, but retaining physical custody with

Ms. Mortimer.
     On January 24, 1995, the parties were divorced a vinculo

matrimonii on the ground of a one year separation.    The court

awarded Ms. Mortimer physical and legal custody of the minor

children, $758 a month in child support, $100 a month in spousal

support, $1,564 lump sum payment, and $2,025 in attorney's fees.

     First, Mr. Mortimer contends the trial court failed to

properly apply Code § 20-124.3 in determining custody of Ashlee

and Justin.   He contends that Ms. Mortimer's moving to California

with the children was a material change in circumstances

justifying a change in custody to him.   He argues that it is in

the children's best interests to live with him and that they have

suffered since their move to California.

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

Ms. Mortimer pursuant to Code § 20-124.3.   The trial court

applied the factors from Code § 20-124.3 and "found none



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significantly negative or overwhelmingly positive as regards to

this matter to disturb the status quo."   "Whether a change of

circumstances exists is a factual finding that will not be

disturbed on appeal if the finding is supported by credible

evidence."    Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40,

41 (1986).

     Second, Mr. Mortimer contends the trial court erred in

awarding $100 a month spousal support to Ms. Mortimer.    He argues

that Ms. Mortimer is not entitled to spousal support because she

caused the marriage breakup and she gave up a well-paying job

with benefits to move to California.    He additionally argues that

he is unable to pay spousal support.    We disagree.
     The trial court considered all the factors in Code

§ 20-107.1 and found no disqualifying circumstances barring an

award.    It further found that Mr. Mortimer had the ability to pay

spousal support and that Ms. Mortimer needed support.    "When the

record discloses that the trial court considered all of the

statutory factors, the court's ruling will not be disturbed on

appeal unless there has been a clear abuse of discretion."
Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644

(1992).

     Third, Mr. Mortimer contends the trial court erred in

determining the equitable distribution of the parties' marital

property.    "Fashioning an equitable distribution award lies

within the sound discretion of the trial judge and that award




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will not be set aside unless plainly wrong or without evidence to

support it.    Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990) (citation omitted).   The trial court found

the marital assets received by Mr. Mortimer equaled $18,550 and

the marital assets received by Ms. Mortimer equaled $8,950.    The

trial court ordered Mr. Mortimer to pay $6,471 in marital debts

and a $1,564.50 lump sum payment to Ms. Mortimer to equalize the

marital assets.   This gave each party $10,514.50 of the marital

assets.   We find no error in the trial court's award.
     Fourth, Mr. Mortimer contends the trial court erred in

awarding Ms. Mortimer attorney's fees.   He argues that he was

punished for not accepting Ms. Mortimer's "Offer and Compromise."

We disagree.

     A trial court has authority pursuant to Code § 20-103 to

award attorney's fees to enable a spouse to maintain a suit.     "An

award of attorney's fees is a matter submitted to the trial

court's sound discretion and is reviewable on appeal only for an

abuse of discretion."    Graves v. Graves, 4 Va. App. 326, 333, 357

S.E.2d 554, 558 (1987) (citation omitted).   An award of

attorney's fees was appropriate under the circumstances because

Mr. Mortimer refused the "Offer and Compromise" when he knew that

he had insufficient evidence to warrant a change of custody.     He

thereby prolonged the litigation knowing Ms. Mortimer could ill

afford additional attorney's fees.

     We affirm the judgment of the trial court.




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        Affirmed.




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