                     COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


EDWARD H. HABBOUSH
                                          MEMORANDUM OPINION * BY
v.   Record No. 2145-99-2                JUDGE ROBERT J. HUMPHREYS
                                               JUNE 13, 2000
ELIZABETH H. WALSH, F/K/A
 ELIZABETH H. HABBOUSH


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       L.A. Harris, Jr., Judge

          S. Keith Barker (S. Keith Barker, P.C., on
          briefs), for appellant.

          Thomas O. Bondurant, Jr., for appellee.


     Edward H. Habboush (father) appeals the decision of the

trial court denying his motions for child support, modification

of visitation and attorney's fees.    He contends that the trial

court specifically erred in failing to order child support nunc

pro tunc as of November 21, 1997; failing to further limit

Elizabeth H. Walsh's (mother) visitation; failing to order the

payment of attorney's fees for expenses incurred in seeking

information on mother's income; and failing to accept

depositions into evidence.

     For the reasons that follow, we affirm the decision of the

trial court.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to the

disposition of the appeal.

     On appeal, we review the evidence and all reasonable

inferences in the light most favorable to the party prevailing

below.   The trial court's finding will not be disturbed on

appeal unless plainly wrong or without evidence to support it.

See Martin v. Pittsylvania County Department of Social Services,

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

                          SUPPORT NUNC PRO TUNC

     "[D]ecisions concerning child support rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by evidence."    Barnhill v.

Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993)

(citation omitted).

     Based upon the evidence presented at the June 7, 1999

hearing, the trial court imputed $583 in monthly income to

mother and ordered her to pay $550 in monthly child support,

effective June 1, 1999.   Father contends that the trial court

erred when it refused to order mother to pay this same amount of

child support retroactive to November 21, 1997.   In support of

this contention, father relies upon an order entered by another

judge of the circuit who had responsibility for this case before

his retirement from the bench.    That order, entered December 2,

1997, directed the parties to

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          forthwith meet and confer as to the amount
          of child support to be paid to the custodial
          parent [father] by the non-custodial parent
          [mother], and submit an endorsed decree
          fixing the same upon reaching an agreement,
          and only if an agreement cannot be reached
          and it becomes necessary to do so, to
          schedule a hearing to set the support
          amount, nunc pro tunc November 21, 1997.

     Father argues that, because no decree setting an amount of

support was subsequently entered, he was entitled to child

support retroactive to November 21, 1997.   However, at the

June 7, 1999 hearing, mother presented evidence, which was

accepted by the trial court, that beginning in 1998 she paid

father $185 in monthly child support pursuant to an agreement

between the parties which was presented to and approved by the

judge previously assigned to the case but never reduced to a

written order.

     The evidence established that mother paid monthly child

support pursuant to the parties' agreement from 1998 until the

time of the June 7, 1999 hearing.   "'Any child support must be

based on circumstances existing at the time the award is made.'"

Sargent v. Sargent, 20 Va. App. 694, 703, 460 S.E.2d 596, 600

(1995) (citation omitted).

     We find no error in the trial court's refusal to order

mother to pay the increased amount of child support retroactive

to November 1997.




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                   MODIFICATION OF VISITATION

     Father contends that the trial court erred when it refused

to modify mother's visitation rights or to hold her in contempt

for violating the court's visitation order.     "In matters

concerning custody and visitation, the welfare and best

interests of the child are the 'primary, paramount and

controlling consideration[s].'"     Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (quoting Mullen v. Mullen,

188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)).     The trial court

is vested with broad discretion to make the decisions necessary

to safeguard and promote the child's best interests, and its

decision will not be set aside unless plainly wrong or without

evidence to support it.   See Farley v. Farley, 9 Va. App. 326,

327-28, 387 S.E.2d 794, 795 (1990).

     Father testified that mother was repeatedly late in

returning the children from visitation, that she failed to

return the children's clothing after visitation and that she had

appeared at a skating rink with her new husband although it was

father's weekend with the children.      The trial court had the

opportunity to hear both parties testify, and instructed both

parties to comply with the existing visitation order, but did

not modify visitation or hold mother in contempt.     We cannot say

that the decision of the trial court to handle these issues in

that manner was plainly wrong.



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                            ATTORNEY'S FEES

        Father argues that the trial court erred when it refused to

award him attorney's fees he incurred in trying to ascertain

mother's income and financial resources.      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 award of counsel

fees is reasonableness under all of the circumstances revealed

by the record.     See McGinnis v. McGinnis, 1 Va. App. 272, 277,

338 S.E.2d 159, 162 (1985).

        The trial court ruled that both parties had pursued

legitimate issues and ordered each to bear their own attorney's

fees.    We cannot say that the trial court's decision was

unreasonable or that the court abused its discretion in refusing

to make an award of attorney's fees to father.

                        REFUSAL TO ADMIT DEPOSITIONS

        Father contends that the trial court erred when it refused

his request to admit mother's deposition into evidence.       While

the trial court denied father's request to introduce the

transcript and videotape of mother's deposition, the court gave

father the opportunity to call mother as a witness and to put on

through live testimony any evidence contained in the deposition.

        As authority for his position, father relies on Rules 4:0,

4:7(a) and Horne v. Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983).

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His reliance on these authorities is misplaced.     In Horne, the

plaintiff sought to introduce the defendant's deposition at

trial, pursuant to Rule 4:7(a)(3).      That rule states:

                The deposition of a party or of anyone
           who at the time of taking the deposition was
           an officer, director, or managing agent, or
           a person designated under Rule 4:5(b)(6) or
           4:6(a) to testify on behalf of a public or
           private corporation, partnership or
           association or governmental agency which is
           a party may be used by an adverse party for
           any purpose.

Id.   The trial court found that Rule 4:7(a)(3) was inapplicable,

thereby forcing the plaintiff to call the defendant as an

adverse witness.    The Supreme Court of Virginia reversed,

finding that the trial court erred by barring the plaintiff from

introducing the adverse party's deposition.      See Horne, 226 Va.

at 138, 306 S.E.2d at 895.

      However, Horne was an action at law arising in a wrongful

death case.   This case, involving as it does issues of child

support and visitation, is a suit in equity.

      Subsection (1) of Rule 4:7(a) provides that

                [a]ny deposition taken in a suit in
           equity may be used for any purpose;
           provided, however, that such a deposition
           may be used on an issue out of chancery or a
           hearing ore tenus only as provided by
           subdivision (a)(4) of this Rule.

(Emphasis added.)   Subsection (a)(4) of Rule 4:7 in turn

provides, in pertinent part:

                The deposition of a witness, whether or
           not a party, may be used by any party for

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          any purpose in any action at law, issue out
          of chancery or hearing ore tenus in equity
          if the court finds: (A) that the witness is
          dead; or (B) that the witness is at a
          greater distance than 100 miles from the
          place of trial or hearing, or is out of this
          Commonwealth, unless it appears that the
          absence of the witness was procured by the
          party offering the deposition; or (C) that
          the witness is unable to attend or testify
          because of age, illness, infirmity, or
          imprisonment; or (D) that the party offering
          the deposition has been unable to procure
          the attendance of the witness by subpoena;
          . . . or (F) upon application and notice,
          that such exceptional circumstances exist as
          to make it desirable, in the interest of
          justice and with due regard to the
          importance of presenting the testimony of
          witnesses orally in open court, to allow the
          deposition to be used.

Since this was an ore tenus hearing of a suit in equity, the

deposition of an adverse party was only admissible, other than

for impeachment purposes, where the party was unavailable to be

called as a witness or where "exceptional circumstances" existed

as specified in Rule 4:7(a)(4).   Because mother was available to

testify and indeed did so, and because father made no showing of

"exceptional circumstances" as required by Rule 4:7(a)(4)(F), we

find no error in the trial court's refusal to admit the

deposition.

                                                          Affirmed.




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