                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia


BRONSON F. BYRD
                                        MEMORANDUM OPINION * BY
v.   Record No. 2435-96-4            JUDGE RUDOLPH BUMGARDNER, III

RENATE M. BYRD


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    J. Howe Brown, Jr., Judge
          Wyatt B. Durrette, Jr. (Richard P. Kruegler;
          Durrette, Irvin & Bradshaw, P.C., on briefs),
          for appellant.

          Carol Ann Roop (Robert E. Shoun; Shoun &
          Bach, P.C., on brief), for appellee.



     This is an appeal from the Circuit Court of Fairfax County

ordering Mr. Byrd to pay combined spousal and child support of

$3,000 per month.   The court allocated the support as $1,168

child support and $1,832 spousal support.   The court also ordered

Mr. Byrd to pay $12,000 in attorney's fees.   He argues that the

trial court abused its discretion in setting support, erred in

awarding attorney's fees, and abused its discretion in ordering

support retroactively.   Finding evidence to support the decisions

and that all factors were considered in arriving at them, we

affirm.

     The parties entered a written agreement that settled most of

the issues between them.    The agreement provided that Mr. Byrd

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
would pay his wife, until they sold the marital home, $2,000

support per month, split evenly between child and spousal

support.   Upon the sale, the parties would attempt to negotiate

support, but if unsuccessful they could petition the court.      They

sold the house in January 1996, support stopped, and shortly

afterwards Mrs. Byrd moved the court to set support.   At the

conclusion of a two-day hearing, the trial judge ruled that Mr.

Byrd had annual income of $100,000 per year or $8,333.33 per

month.   His wife had monthly income of $2,083 per month.   In

addition to that, the court imputed income of $1,000 because she

chose not to work even part-time while attending nursing school.

The judge calculated the child support at $1,200 then set spousal

support at $1,800 for total support of $3,000 per month.    When

counsel appeared to present the written order, counsel for Mr.

Byrd asked the court to reconsider the calculations of child

support because he was providing health insurance at $130 per

month.   Mr. Byrd wanted to insure that he received the tax

benefit from having more of the combined support payment

allocated to spousal support.   The court adjusted the child

support down to $1,168 and increased the spousal support to

$1,832, maintaining the combined total at $3,000.   Mr. Byrd filed

a motion to reconsider which the court denied without further

hearing.
     In determining Mr. Byrd's net income, the trial court set

his expenses at 40 percent of his gross income.   He complains




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that the 40 percent figure is arbitrary and not based on the

evidence.   Evidence taken from tax returns show that Mr. Byrd

earned more than $130,000 from his law practice and investment

business each year from 1993 to 1995.   Mr. Byrd had the burden of

showing his reasonable business expenses to reduce his gross

income to the net income.   Code § 20-108.2.   The trial court

rejected many items claimed by Mr. Byrd as business expenses.    It

rejected his deductions of $50 per hour paid his fiancee for

paralegal help, rent claimed but not paid to his fiancee for

office space in the home where they resided, and more than

$14,000 in the legal fees that he claimed as business expenses,

but incurred in his divorce litigation.
     From the evidence presented, the trial court could have

computed Mr. Byrd's income with no deduction for expenses because

his evidence was not reasonable or credible.   He cannot complain

about the figure the court used because he failed to present

evidence that would support his burden of proof.   While an expert

did not state that the 40 percent figure was a reasonable figure

for law practices of Mr. Byrd's type, it is a figure that the

evidence presented supports.   After the court rejected

inappropriate claims, the remaining expenses totaled

approximately 40 percent of gross income.   Thus, we find the

evidence is sufficient to support the court's determination that

Mr. Byrd's business expenses were 40 percent of his gross income.

     Mr. Byrd complains that the trial court failed to consider




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all the factors in Code § 20-107.1 in fixing the spousal support.

Our review shows that the court addressed all factors.

     Appellant objects that the trial court failed to calculate

the child support correctly.   He argues that the court failed to

determine first equitable distribution, then to calculate spousal

support, and finally to determine child support.    He argues that

the decision in Frazer v. Frazer, 23 Va. App. 358, 477 S.E.2d 290

(1996), requires that a simultaneous decision fixing spousal

support be considered a pre-existing order and attributed to the

receiving spouse as income when calculating child support under

Code § 20-108.2.
     Frazer was decided after this trial, and neither the parties

nor the court had its ruling available to guide them.    As the

case was presented and argued, child support was calculated first

and then spousal support was figured.    The court's focus was

consistently on the total amount, child and spousal support

combined, that Mrs. Byrd would receive.    The approach conformed

to that taken in the support agreement in which the parties first

calculated the total needed and then allocated it between the two

types of support.   Mr. Byrd made no objection to the sequence

followed or the methodology used.     In fact, both parties

concurred in that approach as shown by Mr. Byrd's request that

the court adjust the amount attributed to child support because

he was entitled to a credit for providing health insurance.      Mr.

Byrd did not object to the sequence until the motion to



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reconsider when he had retained new counsel.   He will not be

heard to object to that in which he had previously acquiesced.

Rule 5A:18, Lee v. Lee, 12 Va. App. 512, 404 S.E.2d. 736 (1991).

     Mr. Byrd objects to his wife claiming her mortgage payment

as an expense in calculating her need for support.   He argues

that this results in double-dipping as proscribed in Gamble v.

Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992).    Pursuant to the

settlement agreement, Mrs. Byrd received one-half of the proceeds

from the sale of the marital residence.    She bought a new

residence with half the money and invested the balance.    She

obtained a mortgage to pay for the balance of the purchase price

and claimed the debt service on that loan as an expense.      She

included the income from the portion invested in the income

section of her income and expense sheet.
     In Gamble, the court disapproved considering the mortgage

obligations on marital property when determining both an

equitable distribution award under Code § 20-107.3 and a spousal

support award under Code § 20-107.1.   In that case, the husband

was ordered to pay spousal support in an amount nearly equal to

the mortgage payments on the property.    We found the trial court

erred in allowing the spouse to seek and obtain an encumbered

marital asset and then requiring the conveying spouse to pay off

the encumbrance.   In the present case, the mortgage expenses are

not calculated twice.

     If Mrs. Byrd had put all the money into buying a new house,



                                -5-
she would not have had a mortgage payment, but nor would she have

investment income.   If she had invested it all, and borrowed the

entire purchase price, she would have more investment income.

While the expense of borrowing may be greater than the income

received from many investments, the trial court should not

dictate how litigants conduct their financial affairs.    Mr. Byrd

would argue for the court to fashion a rule that all proceeds

from the sale of an encumbered home must be spent to buy a

replacement so that there would be no debt expense attributable

to that asset.   We decline to do so.
     Mr. Byrd objects to the award of attorney fees arguing that

the settlement agreement stated there would be no attorney's fees

except when enforcing the agreement against a defaulting party.

He argues that there was no evidence he was in default.   We

disagree with husband's reading of the agreement.   The agreement

does not exclude an award of attorney's fees when the wife

requests that support be fixed by the court.   Thus, the court has

discretion to set the fees under Code § 20-79(b).

     Mr. Byrd also complains that there was no expert evidence to

support the reasonableness of the attorneys fees claimed.    Mrs.

Byrd presented the detailed bills received from her attorney.

She also asked the court to recognize that those statements did

not reflect the time spent in court during the trial that was

still being held.    She testified that the fees were for services

requested and performed for that hearing, they were in fact




                                 -6-
rendered, they were consistent with the rates for her attorney

and his firm, and they were as agreed.    The exhibit was

introduced without objection, and she was not cross-examined

about the fees.   If there had been any issue raised or even

suggested that the fees were not reasonable, Mrs. Byrd's attorney

could easily have taken the stand and testified on that limited

point.

     Expert evidence is not necessary to establish the

reasonableness of attorney's fees.     Seyfarth, Shaw, Fairweather &

Geraldson v. Lake Fairfax Seven L.P., 253 Va. 93, 480 S.E.2d 471

(1997).   From the evidence presented and the inferences that the

trial court was entitled to draw while hearing the very matter

for which fees were being requested, we find that Mrs. Byrd made

a prima facie case of reasonableness of the fees.    Mr. Byrd

cannot complain when he waited until he was endorsing the written

order to raise the issue of reasonableness for the first time.

     Finally, Mr. Byrd objects that the court ordered spousal

support retroactively to the time when the motion was first

filed.    The agreement did not make provision for spousal support

between the time of the sale of the house and the fixing of a new

amount either by negotiation or decree.    The agreement being

silent on the point, the normal provisions apply.    Whether to

decree support retroactively is within the discretion of the

trial court.   Mr. Byrd concedes this point.   In this case, not

only was it not an abuse of discretion to grant it, it was an



                                 -7-
appropriate decision considering the general structure of the

settlement as established in the settlement agreement.

     We affirm the decisions of the trial court.

                                                   Affirmed.




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