                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia


JEFFREY K. MacNELLY

v.          Record No. 1985-94-4          MEMORANDUM OPINION *
                                       BY JUDGE JOSEPH E. BAKER
MARTHA S. MacNELLY                           JUNE 6, 1995


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Michael P. McWeeny, Judge
          Charles A. Trainum, Jr. (Trainum, Snowdon & Deane,
     P.C., on briefs), for appellant.

          Gregory L. Murphy (David C. Schroeder; Murphy,
          McGettigan, Richards & West, P.C., on brief), for
     appellee.



     Jeffrey K. MacNelly (husband) appeals from a decree entered

by the Circuit Court of Fairfax County (trial court).    The

primary issue presented is whether he is entitled to offset

spousal support payments made to Martha S. MacNelly (wife), after

her remarriage, against other debts he owes wife pursuant to a

Property, Custody and Support Settlement Agreement (PSA) approved

and incorporated into a decree of divorce that dissolved their

marriage.   Other issues raised by both husband and wife relate to

their respective claims concerning attorney fees.

     On appeal, the judgment of the trial court is presumed

correct.    Steinberg v. Steinberg, 11 Va. App. 323, 326, 398

S.E.2d 507, 508 (1990); Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
878, 879 (1966).   We are not fact finders, and this appeal should

not be resolved on the basis of our supposition that one set of

facts is more probable than another.     Lutes v. Alexander, 14 Va.

App. 1075, 1077, 421 S.E.2d 857, 859 (1992).    Here, the burden is

on the party who alleges reversible error to show by the record

that reversal is the remedy to which that party is entitled.

Kaufman v. Kaufman, 7 Va. App. 488, 489, 375 S.E.2d 374, 380

(1988); see also Crum, 206 Va. at 881, 146 S.E.2d at 879.
                                 FEES

     Matters of attorney fees are submitted to the sound

discretion of the trial court and are reviewable on appeal only

for an abuse of discretion.   Ingram v. Ingram, 217 Va. 27, 29,

225 S.E.2d 362, 364 (1976); Davis v. Davis, 8 Va. App. 12, 17,

377 S.E.2d 640, 643 (1989); Graves v. Graves, 4 Va. App. 326,

333, 357 S.E.2d 554, 558 (1987).    We have examined the record in

this case, reviewed both briefs and authorities cited and

conclude that neither party has met his or her burden to prove

abuse of trial court discretion relating to the award or denial

of requests for attorney fees.

                              OFFSET

     On appeal, we consider the evidence in the light most

favorable to the prevailing party below, and the trial court's

determination will not be disturbed unless plainly wrong or

without evidence to support it.     Furr v. Furr, 13 Va. App. 479,

481, 413 S.E.2d 72, 73 (1992); Clark v. Clark, 209 Va. 390, 395,



                                 - 2 -
164 S.E.2d 685, 689 (1968).



     As the parties are familiar with the record, we state

briefly only those facts necessary to an understanding of this

opinion.   The final decree of divorce, entered on March 20, 1990,

incorporated the terms of the PSA.      In relevant part, that decree

required husband to pay wife (1) $7,000 per month spousal support

until February 1, 1996, (2) $100,000 as her equitable share of

the marital assets, and (3) at least $400,000 by September 30,

1996 for her interest in the syndication and licensing rights in

the comic strip "Shoe."
     Following wife's December 5, 1991 remarriage, husband, on

January 29, 1992, ceased making the monthly spousal support

payments ordered by the divorce decree.     After a hearing on May

21, 1992, the trial court held that the PSA and divorce decree

required continuation of support payments after wife's

remarriage.   When the trial court made that finding, the

following colloquy occurred:
          [HUSBAND'S COUNSEL]: Your Honor, we're
          likely going to appeal this.

           THE COURT:   Of course.

           [HUSBAND'S COUNSEL]: And I'd like to make
           some arrangements that -- my client is
           fearful that if he pays the arrearage, that
           is continues to pay her when there is an
           appeal, he'll never see the money again if
           he's successful -- to have some bond set or
           something to take care of that.

           [WIFE'S COUNSEL]:   If I may address that,
           your Honor?



                                - 3 -
          THE COURT:   Yes, sir.

          [WIFE'S COUNSEL]: As Your Honor will
          recognize, there is a large sum that
          [husband] owes her marital property rights in
          1996. The amount of money he has to pay [in
          support payments] between now and then does
          not come close to the amount that he's going
          to have to pay in 1996. So, I can't
          understand him having that fear since he
          would obviously seek an offset at that point
          in time.

          THE COURT: Well, let me see. It does come
          close. Unless I've missed something, if [the
          spousal support] is paid out we're talking
          about $336,000 and --
          [WIFE'S COUNSEL]:   It's a minimum of
          $400,000.

          THE COURT:   It's a $400,000 minimum.

          [WIFE'S COUNSEL]: And he already owes
          another $150,000. So that brings it to
          $550,000 at this point. So he has a way to
          offset it if it ever should occur. That's my
          point.

          THE COURT: I think it is protected. I'm not
          going to require a specific bond in this
          matter. I will also not require an appeal
          bond on your behalf, sir.


     Husband appealed to this Court alleging that it was error to

require him to make spousal support payments to wife after she

had remarried; however, he continued to make the payments pending

that appeal.   On November 30, 1993, in MacNelly v. MacNelly, 17

Va. App. 427, 437 S.E.2d 582 (1993), a panel of this Court

reversed the trial court, holding that husband was not obligated

to make the monthly spousal support payments after wife's

remarriage.



                               - 4 -
     On January 5, 1994, wife filed a show cause petition in the

trial court seeking an order requiring husband to pay the

$100,000 equitable distribution award required by the PSA, which

by February 4, 1994, with accrued interest, had increased in

value to $182,880.77.   Husband responded to the show cause order

by asserting that the spousal support payments in the amount of

$171,000, paid by him during the pendency of the appeal, should

be offset against the $100,000 debt as if each payment was a

payment on that debt.   The trial court held that husband was not

entitled to credit the spousal support payments made pending his

successful appeal against the $100,000 debt owed to wife.
     Citing Reid v. Reid, 245 Va. 409, 429 S.E.2d 208 (1993),

wife contends that the trial court lacks authority to require her

to make restitution by offset of the spousal support payments

that had been ordered by the trial court.   Husband contends that

Reid is not controlling here, asserting that this case involves

the enforcement of a support obligation made by private contract.

The trial court rejected that contention.   The record discloses

that the PSA was incorporated into the divorce decree, thus the

issue arises from the decree, not just the contract.

     Husband further contends that the colloquy quoted above, in

which the trial court opined, "I think it is protected,"

contained an agreement that if husband prevailed on appeal he

could offset the spousal support payments made pending the

appeal.   The trial court did not agree and refused to find that



                               - 5 -
the statements made bound wife to an offset.

      Finally, husband urges this Court to hold that equity

requires, under the circumstances of this case, that he be

permitted to offset the spousal support payments made after his

successful November 30, 1993 appeal.

      Reasonable persons may disagree as to whether the colloquy

contained language establishing a binding agreement.   Thus, the

question was a matter for the trial court to determine.     We

cannot say that its decision concerning that issue was plainly

wrong or without evidence to support it.
      The trial court based its decision upon Reid, where the

issue before the Supreme Court was stated as follows:
          In this appeal we consider whether a trial
          court may order restitution from a spouse who
          received spousal support payments pursuant to
          a court order when that order subsequently
          was reversed on appeal.


Id.   Speaking for the Court, Justice Lacy recognized the

established rule that divorce is strictly a creature of statute.

She then thoroughly examined the statutes controlling divorce

suits as they relate to restitution.   In the opinion, restitution

was defined as "the recovery of money already paid."   Noting that

"there are significant differences between a spousal support

order and an ordinary money judgment order," Justice Lacy stated

that "[a spousal support order] is based on need [while a money

judgment order is predicated] on entitlement."   Id. at 413, 429

S.E.2d at 210.   The extent of a divorce court's present authority



                               - 6 -
to deal with offsets, which in this case is effectively a request

for restitution, may be found in the following:
            Once the amount of spousal support is
          determined, the statutes and case law
          specifically limit the divorce court's
          authority to retroactively modify that
          amount, absent fraud on the court, a claim
          absent here. Code § 20-109 provides that the
          divorce court may modify or terminate spousal
          support that "may thereafter accrue," but
          makes no provision for modifying an award for
          support previously accrued. As noted supra,
          retroactive modification is specifically
          addressed in Code § 20-112: "No support order
          may be retroactively modified, but may be
          modified with respect to any period during
          which there is a pending petition for
          modification, but only from the date that
          notice of such petition has been given to the
          responding party."

(Emphasis added.)   Id. at 414, 429 S.E.2d at 211.   The Reid Court

then concluded, "that the General Assembly has not made statutory

provisions for restitution of spousal support paid pursuant to an

order that is later reversed" and held that the trial court "did

[not] have statutory or inherent power to order restitution."

Id. at 415, 429 S.E.2d at 211.

     Although matters relating to divorce are currently within

the jurisdiction of circuit courts, and are heard on the equity

side, in the absence of a statutory grant circuit courts are not

authorized to make general equitable judgments as may be rendered

in non-divorce cases.

     In accord with Reid, 1 we hold that under the facts of this
     1
      Appellant also relies upon Hughes v. Hughes, 173 Va. 293, 4
S.E.2d 402 (1939), to distinguish the awarding of credit from an
order of restitution. We distinguish Reid from Hughes insofar



                                 - 7 -
case, the trial court was without statutory or inherent authority

to find that the spousal support payments made by husband after

wife's remarriage were payments being made on a fixed debt due

wife or that husband was entitled to restitution by way of

offset.

     Accordingly, we affirm the judgment of the trial court.
                                             Affirmed.




that Hughes involved voluntary alimony while Reid involved
spousal support ordered by the trial court.




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