                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia


EDWARD R. CUSHEN
                                          MEMORANDUM OPINION * BY
v.           Record No. 1030-97-4        JUDGE NELSON T. OVERTON
                                             AUGUST 18, 1998
JANICE J. CUSHEN


              FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                         James L. Berry, Judge
             Frederick S. Vondy (Adrian & Vondy, P.L.C.,
             on brief), for appellant.

             Peter W. Buchbauer (James J. McGuire;
             Buchbauer & McGuire, P.C., on brief), for
             appellee.



     Edward R. Cushen (husband) appeals from a decree of divorce

a vinculo matrimonii granted to him and Janice J. Cushen (wife)

on March 26, 1997.    He asserts two errors on appeal:     (1) the

trial court should have found wife deserted him and granted him

the divorce on that basis and (2) the trial court should have

refused to award wife spousal support.     Wife contests these

issues and requests the court award her attorney's fees and costs

incurred for this appeal.    Because we find no error by the trial

court, we affirm its decree and grant wife her attorney's fees

and costs.

     The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedental

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
value, no recitation of the facts is necessary.

     Husband's first contention is the trial court should have

granted the divorce based on wife's desertion, pursuant to Code

§ 20-95, instead of living separate and apart for more than a

year, pursuant to Code § 20-91(9)(a).   The choice of divorce

grounds is submitted to the sound discretion of the trial court

and will be affirmed absent an abuse of that discretion.      See

Konefal v. Konefal, 18 Va. App. 612, 613-14, 446 S.E.2d 153, 153

(1994).   At trial, the parties proved they lived separate and

apart, without any cohabitation and without interruption for a

period of more than one year.   Assuming, arguendo, husband also
proved desertion, the fact is irrelevant.   "'Where dual or

multiple grounds for divorce exist, the trial judge can use . . .

sound discretion to select the grounds upon which . . . to grant

the divorce.'"   Sargent v. Sargent, 20 Va. App. 694, 707, 460

S.E.2d 596, 602 (1995) (quoting Lassen v. Lassen, 8 Va. App. 502,

505, 383 S.E.2d 471, 473 (1989)).   Because there is evidence to

support the court's chosen ground for divorce, we shall not

disturb it on appeal.

     Husband next contends the trial court should not have

awarded wife spousal support.   He provides two reasons for this

contention.   First, he states evidence of wife's desertion should

have precluded an award of spousal support under Code § 20-107.1.

This argument has no merit.     The trial court refused to find

wife deserted husband.   To turn around and deny or reduce spousal



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support on the basis of a finding it implicitly rejected would

have been error.      The court was entitled to proceed to the

statutory factors of Code § 20-107.1 to determine the amount of

support.

     Husband next asserts the trial court incorrectly weighed

these factors.       We will not, as husband invites, reweigh each

statutory factor in the light most favorable to husband.       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.           See

Calamos v. Calamos, 4 Va. App. 96, 100, 354 S.E.2d 102, 105

(1987).    The trial court's decree clearly indicates it considered

all the statutory factors, even going so far as to distinguish

which factors favored which party, something it was not required

to do.     See id.    Because the evidence supports the trial court's

conclusions regarding those factors, they shall not be disturbed.

     Finally, husband argues the trial court should have imputed

income to wife because she was voluntarily unemployed.        See

Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675,

679 (1990).    Husband did not, however, introduce evidence that

imputation of income was warranted.        The record reveals wife had

not worked as a full time nurse since 1991 and has had only

temporary or volunteer positions since then.       Husband did not

present evidence of job availability in her field, the effect of

her long departure from the work force on her ability to obtain a




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job or her potential earnings.    Further, the custody arraignment

to which husband agreed places the children with wife during week

days.    Husband did not introduce evidence that nursing positions

were available which allowed her the time to both work and

fulfill her responsibilities as the primary custodian of their

children.    Because the record is practically devoid of the

information necessary to impute income to wife, we affirm the

trial court's refusal to do so.     See Sargent, 20 Va. App. at

703-04, 460 S.E.2d at 600-01.
        The final issue to be considered is wife's costs of appeal.

She asserts the appeal was undertaken for vexatious reasons, not

from a belief the questions presented merited appellate

attention.    She claims the issues are easily determined under

existing law and no argument has been made for a change in that

law.    She asks that this Court reimburse her, and penalize

husband, for the time and money she has wasted addressing

husband's aggravating appellate attack.

        "The key to a proper award of counsel fees is reasonableness

under all the circumstances."     Lightburn v. Lightburn, 22 Va.

App. 612, 621, 472 S.E.2d 281, 285 (1996) (citing McGinnis v.

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)).       The

legal issues in this appeal are easily disposed of by reference

to existing law.     Sargent v. Sargent, cited above, alone would

have been enough to inform husband his appeal lacked merit.       Yet

husband continued to press his case upon this Court.    We find



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wife should be compensated for the expenses incurred refuting

husband's unjustified appeal.    See, e.g., O'Loughlin v.

O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996);

Gottlieb v. Gottlieb, 19 Va. App. 77, 95-96, 448 S.E.2d 666, 677

(1994).

     Because the record entirely supports the lower court's

determinations of divorce grounds and spousal support, we affirm.

"Where the . . . judge finds that a fee award is justified,

evidence of time expended and services rendered is a proper basis

upon which to fix an award."    Westbrook v. Westbrook, 5 Va. App.

446, 458, 364 S.E.2d 523, 530 (1988).    We, therefore, remand the

case to the circuit court for a determination of wife's costs and

attorney's fees incurred as a result of this appeal and entry of

an award in her favor for that amount.    See O'Loughlin, 23 Va.

App. at 694-95, 479 S.E.2d at 99-100.

                                          Affirmed and remanded.




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