                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Decker and AtLee
              Argued at Richmond, Virginia
UNPUBLISHED




              WILLIAM TERRELLE HENDERSON
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1364-17-2                                   JUDGE MARLA GRAFF DECKER
                                                                                    MAY 15, 2018
              BRIGITTA HENDERSON


                                 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                               David E. Johnson, Judge

                                Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellant.

                                James M. Goff, II (James M. Goff II, P.C., on brief), for appellee.


                      William Terrelle Henderson (the husband) appeals a final order of the circuit court resolving

              equitable distribution and support issues in the course of his divorce from Brigitta Henderson (the

              wife).1 He contends that the equitable distribution award was flawed based on the court’s improper

              treatment of various assets and debts. The husband also challenges the child and spousal support

              awards, suggesting that the court erroneously calculated the parties’ incomes. Finally, he contends

              that the court abused its discretion in awarding attorney’s fees and costs to the wife. For the reasons

              that follow, we affirm the circuit court’s decision in part, reverse in part, and remand for further




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                       The wife also noted an appeal to this Court from the final order. See Brigitta Henderson
              v. William Terrelle Henderson, No. 1402-17-2 (Va. Ct. App. Aug. 31, 2017). These two cases
              were joined for purposes of oral argument, but the Court resolves the appeals in separate,
              simultaneously issued opinions.
proceedings consistent with this opinion.2 Additionally, we deny the parties’ respective requests for

attorney’s fees and costs incurred on appeal.

                                         I. BACKGROUND

        The parties were married in 1999. They had two children, who were born in 2002 and 2006.

The husband was a professional athlete before and during the marriage but retired shortly after their

second child was born in 2006. The couple accumulated substantial assets, as well as some debts,

before separating in 2014.

        The wife filed a bill of complaint seeking a divorce, child and spousal support, equitable

distribution, and attorney’s fees and costs. Following two evidentiary hearings, the court entered a

final decree granting the divorce, distributing the marital property, and awarding child and spousal

support. The court also ordered the husband to pay the attorney’s fees and costs incurred by the

wife in the circuit court.

                                            II. ANALYSIS

        This appeal addresses certain aspects of the circuit court’s equitable distribution, child and

spousal support awards, and attorney’s fees and costs award. Additionally, each party seeks an

award of attorney’s fees and costs incurred as a result of this appeal.

                                      A. Equitable Distribution

        The husband challenges the court’s classification of two investment accounts as marital, as

well as the valuation of one of those accounts. He also contends that the court improperly classified




        2
          The record was sealed by the circuit court pursuant to Code § 20-124. Nevertheless, the
appeal necessitates unsealing relevant portions of the record for purposes of resolving the issues
raised by the husband. Consequently, “[t]o the extent that this opinion mentions facts found in
the sealed record, we unseal only those specific facts, finding them relevant to the decision in
this case. The remainder of the previously sealed record remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775, 777 n.1 (2017).
                                                -2-
as marital property the “line-of-duty” benefits he received based on his work as a professional

athlete.

           Code § 20-107.3 requires the circuit court, at the request of divorcing parties, to classify

property owned by the parties separately or jointly as separate, marital, or part separate and part

marital for purposes of equitable distribution. It further requires the court to value the property

and distribute the value of property that it classifies as marital. Code § 20-107.3; see Stumbo v.

Stumbo, 20 Va. App. 685, 692-93, 460 S.E.2d 591, 595 (1995).

           On appellate review, a circuit court’s equitable distribution award “will not be overturned

unless the Court finds ‘an abuse of discretion, misapplication or wrongful application of the

equitable distribution statute, or lack of evidence to support the award.’” Wiencko v. Takayama,

62 Va. App. 217, 229-30, 745 S.E.2d 168, 174 (2013) (quoting McIlwain v. McIlwain, 52

Va. App. 644, 661, 666 S.E.2d 538, 547 (2008)). “It is well established that [the circuit court as]

the trier of fact ascertains a witness’ credibility, determines the weight to be given to [his or her]

testimony, and has discretion to accept or reject any of the witness’ testimony.” Layman v.

Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoting Street v. Street, 25

Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc)).

                                         1. Investment Accounts

           The husband disputes the court’s rejection of his evidence purporting to trace the funds in

two Wells Fargo accounts to his separate property. He also contests the court’s failure to deduct

the amount of a lien as part of the process of valuing one of the accounts.




                                                   -3-
                                   a. Classification and Tracing3

       We first address the classification of the accounts for purposes of equitable distribution.

The circuit court must classify property as separate or marital, or part separate and part marital,

before valuing and dividing it in equitable distribution. See Code § 20-107.3(A).

       Settled principles provide that all property “acquired by each party during the marriage

which is not separate property as defined [in subdivision (A)(1) of Code § 20-107.3]” is

presumed marital. Code § 20-107.3(A)(2)(iii). Subdivision (A)(1) defines separate property to

include “all property acquired during the marriage in exchange for or from the proceeds of sale

of separate property, provided that such property acquired during the marriage is maintained as

separate property.” Code § 20-107.3(A)(1)(iii). Once the presumption that property acquired

during the marriage is marital property comes into play, “[t]he party claiming that property

should be classified as separate has the burden to produce satisfactory evidence to rebut this

presumption.” Joynes v. Payne, 36 Va. App. 401, 428, 551 S.E.2d 10, 23 (2001) (quoting Stroop

v. Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990)). A party’s ability to do so may

rest on the credibility of his evidence. See Anderson v. Anderson, 29 Va. App. 673, 685-87, 514

S.E.2d 369, 375-76 (1999). Classification of property, including whether a party has

successfully proved that property presumed to be marital “was acquired ‘for or from the proceeds

of the sale of separate property,’” is a question of fact and will not be reversed unless “plainly

wrong or without evidence to support it.” See Ranney v. Ranney, 45 Va. App. 17, 31-32, 608

S.E.2d 485, 492 (2005) (quoting Code § 20-107.3(A)(1)).

       The dispute involves whether the funds in Wells Fargo accounts #5889 and #7913, titled

only in the husband’s name, were marital or separate property for purposes of equitable

distribution. The accounts came into existence in 2004, significantly after the parties married in


       3
           This section of the opinion addresses assignments of error 1 through 4.
                                                 -4-
1999. Consequently, the accounts are presumed to be marital. See McIlwain, 52 Va. App. at

656-58, 666 S.E.2d at 544-45; Lambert v. Lambert, 6 Va. App. 94, 99, 367 S.E.2d 184, 187

(1988). The husband claims that the accounts were funded with sums that were his separate

property and remained his separate property. Accordingly, he bore the burden of tracing those

funds to his wholly separate property, with evidence found credible by the trier of fact. See

Anderson, 29 Va. App. at 685-87, 514 S.E.2d at 375-76.

       The husband’s evidence was that he had a separate premarital brokerage account, First

Union/Wachovia account #0410. He claimed that this account, even after the marriage,

contained only his separate funds earned prior to the marriage. He also testified and offered

evidence from various bank employees that this account was the source of all of the funds that he

deposited into Wells Fargo accounts #5889 and #7913. However, it is undisputed that the

husband was unable to produce any records for the First Union/Wachovia account #0410 for the

years 2001 to 2004. The stipulated testimony of a Wells Fargo employee confirmed the

unavailability of these records. In the absence of these records, the circuit court held that the

husband had not borne his burden of proving that the funds in accounts #5889 and #7913 were

his separate funds. The court, as the finder of fact, concluded that the husband’s testimony about

the source of the funds in First Union/Wachovia account #0410 provided insufficient evidence to

meet his burden of tracing the funds to his separate property.4 See Anderson, 29 Va. App. at

685-87, 514 S.E.2d at 375-76 (where the husband presented only a single account statement

when tracing funds over a nine-year period, holding that the trier of fact was “entitled to give no



       4
          The circuit court described the missing records as “a three[-]year black hole from 2001
to 2004” and said it could not conclude that the husband presented adequate evidence tracing the
funds to his separate property “without . . . engaging in guesswork or speculation.” The court
also noted that it “received no evidence as to the formation of [account #0410] or the source of
the initial deposits” and “ha[d] only [the husband’s] testimony that the account consisted of his
pre-marital salary and bonuses.”
                                                 -5-
weight to [the] husband’s testimony that the funds . . . were maintained as separate property,

particularly in the absence of documentary evidence”). Counsel for the husband conceded at the

evidentiary hearing that “[y]es, it comes down to [the husband’s] credibility,” but counsel argued

that “the math works.” (Emphasis added). The mere fact that the husband was able to prove that

he had pre-1999 earnings and bonuses in an amount sufficient to fund account #0410, the amount

he claims to have traced, was insufficient to meet his burden of proof. See Lee v. Lee, 13

Va. App. 118, 121-22, 408 S.E.2d 769, 770-71 (1991) (holding that the circuit court did not err

in classifying a certificate of deposit purchased in the husband’s name during the marriage as

marital property because no evidence supported his claim that he purchased it with separate

property in the form of his disability payments).

       Consequently, the record supports the circuit court’s classification of Wells Fargo

accounts #5889 and #7913 as marital.

                                       b. Debt and Valuation5

       We next turn to the circuit court’s classification of the lien on Wells Fargo account #5889

and the impact of that classification on its valuation of the account.

       The parties stipulated to the account balance and the amount of the lien against it, which

was in the form of a secured equity line. The husband’s financial consultant at Wells Fargo

testified that the note securing the lien was in the husband’s name.

       The circuit court addressed the outstanding equity line balance separately from its

valuation and distribution of the account. It valued the account in accordance with the parties’

stipulation concerning the account balance, without considering the amount of the lien, and

ordered the account divided equally, awarding each party half the value of the balance.

Although it accepted the parties’ stipulation regarding the amount of the secured debt and


       5
           This section of the opinion addresses assignments of error 5, 7, 8, and 9.
                                                 -6-
classified the debt as marital, the court found that the parties had presented insufficient evidence

to permit it to determine whether the secured debt was jointly owned. It held under Code

§ 20-107.3(C) that in the absence of such evidence, it lacked the authority to divide the debt.

The court then stated that it would reach the same result even if it applied the presumption in

Code § 20-107.3(A)(2) that marital property is jointly owned because it would exercise its

discretion not to divide the debt.

       The appellate court must reverse an equitable distribution award if it finds a

“misapplication or wrongful application of the equitable distribution statute.’” Wiencko, 62

Va. App. at 229-30, 745 S.E.2d at 174 (quoting McIlwain, 52 Va. App. at 661, 666 S.E.2d at

547). Code § 20-107.3 requires a court effecting an equitable distribution to proceed in an

orderly fashion: Specifically, it must (1) “classify the property,” (2) “assign a value” to the

property, and (3) “distribute the property to the parties, taking into consideration the factors

listed in Code § 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809,

812, adopted upon reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). Code § 20-107.3(E)

requires the circuit court, when distributing the marital property during the final phase of the

process, to consider the “debts and liabilities of each spouse, the basis for such debts and

liabilities, and the property which may serve as security for such debts and liabilities.” Code

§ 20-107.3(E)(7). “However, to the extent that a valid indebtedness which is secured creates an

encumbrance on the legal title” of marital property, we have held that this “indebtedness must be

considered” by the circuit court at an earlier stage in the process, when “determining the value of

the marital property.” Trivett v. Trivett, 7 Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)

(emphases added).

       Applying these principles, we hold that the circuit court, before distributing Wells Fargo

account #5889, had to value the account properly by deducting the lien on the account—the

                                                -7-
secured debt owed on the equity line. Consequently, we reverse and remand to the circuit court

to correctly calculate the value of the account before dividing it. On remand, the court should

once again apply the subsection (E) factors to determine the distribution of the account. See

generally Gamer v. Gamer, 16 Va. App. 335, 344, 429 S.E.2d 618, 624-25 (1993) (“Each marital

asset is not necessarily entitled to be treated the same for purposes of equitable distribution. The

[circuit court] may determine, depending upon how the factors in Code § 20-107.3(E) are

applied, that certain marital assets should be divided and treated differently than others.”), quoted

with approval in Judd v. Judd, 53 Va. App. 578, 592, 673 S.E.2d 913, 919 (2009).

       Based on our ruling that the court was required to deduct the amount of the secured debt

in determining the value of the property, we need not address the appellant’s argument in his

seventh assignment of error that the court misperceived the range of its authority regarding

division of the debt under Code § 20-107.3(C).

                               2. Line-of-Duty Disability Benefits

       The husband challenges the circuit court’s classification of benefit payments that he

received called line-of-duty (LOD) payments. He received the LOD payments based on his

former employment as a professional athlete. The parties agree regarding the amount of Wells

Fargo account #5608 that comprises the LOD payments at issue.

       The record contains a copy of the detailed official summary of the “Player Retirement

Plan.” The included cover letter states that the retirement plan provides eligible employees with

“pension and disability benefits,” as well as “survivor protection for [employees’] wives and

famil[ies].” The plan covers retirement benefits and disability benefits, and it defines disability

benefits to include both “total and permanent disability benefits” and “line-of-duty disability

benefits.” The plan’s vesting requirements, which are based primarily on an employee’s receipt




                                                -8-
of credits for being under contract for a certain number of seasons, cover all categories of

benefits.6

          The “monthly retirement benefit” is calculated based on (1) the number of the

employee’s benefit credits for credited seasons, (2) age upon beginning to receive benefits, and

(3) the form chosen for those benefits. The plan lists the normal retirement age as fifty-five but

also permits early retirement and deferred retirement under certain circumstances.

          Additionally, an employee who is not already receiving ordinary retirement benefits may

elect to receive disability benefits under the plan if he can prove either “permanent disability”

that is “total” or a lesser degree of permanent disability involving “substantial disablement,” as

defined in the plan. Permanent benefits for total disability may be paid for the duration of an

employee’s life. An employee who meets the lesser standard of “substantial disablement” is

eligible to receive LOD disability benefits, which are payable for up to ninety months. Finally, a

vested former employee who collects disability benefits remains entitled to “all other

(non-disability) Retirement Plan benefits” in addition to the disability benefits, “although [an

employee] cannot receive both a retirement benefit and a disability benefit for the same period of

time.”7

          The husband’s LOD payments were deposited directly into one of his accounts. The

statement that he received each month to document the deposit, titled “Retirement Pl[an]” and

“Direct Deposit Summary,” specifically referenced the sum as “Pension.”


          6
         An employee also becomes vested if he qualifies for total and permanent disability
payments. Finally, additional “special [vesting] rules” permit other employees to qualify for
regular retirement benefits but not disability retirement. These rules are not applicable in this
case.
          7
         The husband testified regarding how the LOD disability benefits and more traditional
retirement benefits function under the plan. The circuit court, as the finder of fact, was not
required to give any weight to his testimony, particularly in light of the presence of the plan
summary booklet in the record. See, e.g., Layman, 62 Va. App. at 137, 742 S.E.2d at 891.
                                               -9-
       Code § 20-107.3(G)(1), in relevant part, relates to the division of the marital share of

“any pension . . . or retirement benefits.” Code § 20-107.3(G)(1) (emphasis added). It classifies

as marital all such benefits the right to which is earned during the marriage. See id. The

husband argues that the payments should instead be treated like a personal injury award under

Code § 20-107.3(H). Subsection (H), which addresses the treatment of both personal injury and

workers’ compensation awards, classifies as marital only the portion of the award attributable to

wages lost and medical expenses unreimbursed during the marriage. The husband asserts that

his LOD payments are not compensation for lost wages or unreimbursed medical expenses but,

rather, cover his pain and suffering for work-related injuries. Consequently, he contends that the

benefits were wholly separate property and that the circuit court erred in classifying them as

marital.

       Classification of property is generally a question of fact and will not be reversed unless

“plainly wrong or without evidence to support it.” See Ranney, 45 Va. App. at 31-32, 608

S.E.2d at 492. However, the appellate court reviews the circuit court’s “statutory interpretations

and legal conclusions de novo.” Craig v. Craig, 59 Va. App. 527, 539, 721 S.E.2d 24, 29 (2012)

(quoting Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004)). Manifestly, “the

meaning of ‘any pension . . . or retirement benefits’” in Code § 20-107.3(G)(1) and what

payments are encompassed within the statute’s terms is “a question of law” reviewed de novo.

Navas, 43 Va. App. at 487, 599 S.E.2d at 480 (alteration in original). These same principles

apply to the scope of subsection (H). See id.

       The circuit court ruled that the LOD payments are a retirement benefit subject to

distribution under Code § 20-107.3(G). In light of the statutory language as interpreted by this

Court in Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643 (2000), and Navas, 43 Va. App. 484,




                                                - 10 -
599 S.E.2d 479, we agree with the circuit court and hold that the husband’s LOD disability

payments are “pension . . . or retirement benefits” under Code § 20-107.3(G)(1).

        In Asgari, the husband was injured while working for a state agency and received

disability retirement benefits from the Virginia Retirement System (VRS). 33 Va. App. at 397,

533 S.E.2d at 645. Documentation from the VRS “specifically referenced” the benefits as “‘Line

of Duty Disability Retirement’ [that was] based upon” his years of service and salaries earned.

Id. The circuit court ruled that the husband’s disability retirement was marital property, and the

husband appealed. Id. at 400-01, 533 S.E.2d at 647.

        On appeal, this Court reviewed the language of Code § 20-107.3(G)(1) and emphasized

the legislature’s “clear[] ‘inten[t] [that] all pensions’” be subject to equitable distribution

pursuant to the statute. Id. at 401, 533 S.E.2d at 647 (emphasis added) (quoting Sawyer v.

Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 280 (1985)). It highlighted the definition of a

pension as “a retirement benefit paid regularly, with the amount of such based generally on

length of employment and amount of wages or salary of [the] pensioner” and further described as

“deferred compensation for services rendered.” Id. (quoting Banagan v. Banagan, 17 Va. App.

321, 324, 437 S.E.2d 229, 230-31 (1993)). It reasoned that the “‘all inclusive language’” of

subsection (G)(1) “does not suggest the exclusion of ‘disability pensions.’” Navas, 43 Va. App.

at 488, 599 S.E.2d at 481 (quoting Asgari, 33 Va. App. at 401, 533 S.E.2d at 647). The Court

emphasized that the VRS benefit was “a function of [the husband’s] employment service,

average wages and age.” Asgari, 33 Va. App. at 402, 533 S.E.2d at 648. Finally, it recognized

that all documentation related to the benefit referenced it as “Retirement,” “Disability

Retirement,” or the “like” and “includ[ed] a designated ‘retirement date.’” Id. at 402, 533 S.E.2d

at 647-48. That the husband also had to prove an injury qualifying as a disability did not change




                                                 - 11 -
the classification of the LOD payments as “a ‘pension’ or ‘retirement benefit’” under Code

§ 20-107.3(G). See id. at 401-02, 533 S.E.2d at 647-48.

       The Court subsequently applied Asgari in Navas and again held that the wife was entitled

to a marital share of her husband’s disability retirement. 43 Va. App. at 488-89, 599 S.E.2d at

481-82. It noted that the divorce decree’s award to the wife of a portion of the marital share of

the husband’s pension encompassed all three ways the retirement plan set out for a vested

employee to receive benefits, including disability. Id. at 487, 599 S.E.2d at 480. The Court

further observed that the disability allowance was available under the plan to any employee who

suffered a qualifying disability “before becoming eligible for [regular retirement] benefits.” Id.

at 489, 599 S.E.2d at 481. Finally, it noted that the benefit was “calculated in the same way as

the normal retirement allowance” and “replace[d]” the benefit that the husband would later have

qualified to “receive[] had he not been injured.” Id. at 487, 489-90, 599 S.E.2d at 480-81.

       The holdings in Asgari and Navas control the outcome in the instant case.8 Here, like in

Navas, the retirement plan’s terms set out multiple ways in which the husband was entitled to

receive benefits under the plan, including through regular retirement and disability. See Navas,

43 Va. App. at 487, 489-90, 599 S.E.2d at 480-81. The husband’s eligibility for the LOD

benefits, like the more traditional retirement benefits available under the plan, was based in part



       8
         At the time Asgari and Navas were decided, in 2000 and 2004 respectively, Code
§ 20-107.3(G) and (H) were both in existence. See 1990 Va. Acts ch. 636 (reflecting subsection
(G) and the addition of subsection (H)). The statute has been amended seven times since this
Court decided Asgari, yet the General Assembly has not modified it to negate the effect of
Asgari or provide that line-of-duty disability benefits should be classified as a personal injury or
workers’ compensation award under (H) rather than as a “pension . . . or retirement benefits”
under (G). See 2004 Va. Acts chs. 654, 757; 2006 Va. Acts ch. 260; 2010 Va. Acts ch. 506;
2011 Va. Acts ch. 655; 2012 Va. Acts ch. 144; 2016 Va. Acts ch. 559; 2017 Va. Acts ch. 797;
see also Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730 (2001) (“When the
General Assembly acts in an area in which one of its appellate courts already has spoken, it is
presumed to know the law as the court has stated it and to acquiesce therein, and if the legislature
intends to countermand such appellate decision it must do so explicitly.”).
                                                - 12 -
on credited seasons of service to his employer, and the method for calculating the amount of the

LOD benefits was similar to the method used for calculating retirement benefits under the plan,

just as in Asgari and Navas. See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; Asgari, 33

Va. App. at 401-02, 533 S.E.2d at 647-48. Further, the retirement plan did not permit the

husband to receive both traditional retirement and LOD disability benefits for the same period of

time. This fact supports the inference that the LOD benefits functioned like traditional

retirement benefits in terms of their wage replacement purpose. See Navas, 43 Va. App. at 490,

599 S.E.2d at 481-82. Additionally, like in Asgari, the benefits at issue were characterized as

line-of-duty disability payments, and the account statement that the husband received each

month to document the direct deposit of the benefits into his account specifically referenced the

sum as “Pension,” a category of benefits expressly covered by Code § 20-107.3(G)(1). See

Asgari, 33 Va. App. at 402, 533 S.E.2d at 647-48 (examining the “characterization” of the

benefits in the relevant documents).

       The requirement that the husband prove a qualifying injury did not change the

classification of the LOD disability benefits as pension or retirement benefits under subsection

(G). See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; Asgari, 33 Va. App. at 401-02,

533 S.E.2d at 647-48. Finally, the fact that the benefits were available for only a finite period of

ninety months, after which the husband would be eligible to receive “regular” retirement benefits




                                               - 13 -
under the plan, does not change the nature of the benefits.9 Cf. Navas, 43 Va. App. at 490, 599

S.E.2d at 482 (noting the plan provision preventing an employee from receiving a disability

allowance “at the same time” as normal or early retirement under the plan).

       Consequently, we hold that the circuit court did not err in classifying the husband’s LOD

disability benefits as marital property subject to equitable distribution.

                                   B. Child and Spousal Support

       With regard to the awards of child and spousal support, the husband asserts that the circuit

court erroneously calculated both parties’ incomes because it failed to account for the impact of the

equitable distribution award. Specifically, he argues that the court should have adjusted his income

downward and the wife’s income upward based upon the court’s award to her of 50% of two

Wells Fargo accounts, #5889 and #7913, in the equitable distribution ruling.

       Virginia’s statutory scheme requires that the spouses’ respective incomes must be

calculated before a court may determine how much child and spousal support is owed and to

whom. See Code § 20-107.1(E)(1), -108.2(B)-(C). The relevant statutes also require the circuit

court to consider, either directly or indirectly, the “provisions made with regard to the marital




       9
          On this record, contrary to the husband’s suggestion, we need not consider persuasive
authority from other jurisdictions because Virginia’s statutory scheme and existing case law
resolve the issue. In any event, the holding in Wright v. Wright, 730 S.E.2d 218 (N.C. Ct. App.
2012), cited by the husband, is distinguishable. In deciding Johnson v. Johnson, 450 S.E.2d 923,
925-26 (N.C. Ct. App. 1994), subsequently relied upon in Wright, 730 S.E.2d at 220, the North
Carolina Court of Appeals recognized a split of authority and “agree[d] with . . . states”
classifying any portion of disability benefits that “compensate for disability” as separate
property. This Court, by contrast, rejected a similar argument in Asgari and adopted a unitary
approach to classifying disability retirement benefits. 33 Va. App. at 401-02, 533 S.E.2d at
647-48. We are bound by Asgari, not Johnson or Wright.
                                                - 14 -
property under § 20-107.3” in effecting an equitable distribution of the marital estate.10 Code

§ 20-107.1(E)(8) (relating to spousal support); see Code § 20-108.2(C) (providing that “gross

income” for purposes of calculating child support “means all income from all sources,” including

dividends, interest, and capital gains); see also Code § 20-108.1(B)(12) (permitting a court to

deviate from the presumptive calculation under the child support guidelines where property

received by a parent in equitable distribution “earns income or has an income-earning

potential”). Accordingly, our ruling reversing the equitable distribution award and remanding

for additional proceedings requires that the circuit court, on remand, also revisit the awards of

child and spousal support. See Robinson v. Robinson, 46 Va. App. 652, 671, 621 S.E.2d 147,

156-57 (2005) (en banc).

                         C. Attorney’s Fees and Costs in the Circuit Court

       The husband suggests that the circuit court errors he raises on appeal, as well as the other

issues that were resolved against the wife in that court, require the conclusion that the court

“abused its discretion in awarding [the wife] every single penny of her attorney’s fees and costs.”

He further claims that the court’s fee award was based on the “rationale that the fees were all a

result [of his] adulterous conduct” and that this rationale is not supported by the record.

       If a divorce matter does not involve a property settlement agreement that “contain[s] a

provision governing a fee dispute, ‘[a]n award of attorney’s fees and costs “is a matter for the

trial court’s sound discretion after considering the circumstances and equities of the entire

case.”’” Jones v. Gates, 68 Va. App. 100, 105, 803 S.E.2d 361, 364 (2017) (quoting Mayer v.



       10
          The evidence indicates that in 2015, prior to the court’s order of division, the Wells
Fargo accounts produced more than half of the income reflected on the husband’s income and
expense statement. The record also appears to reflect that the court calculated the husband’s
income for purposes of child and spousal support without adjusting the figures on that exhibit. It
further appears that the court used an income figure for the wife that included only the
employment income that it imputed to her.
                                              - 15 -
Corso-Mayer, 62 Va. App. 713, 731, 753 S.E.2d 263, 272 (2014)). “Such decision ‘is

reviewable on appeal only for an abuse of discretion.’” Id. (quoting Graves v. Graves, 4

Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). As with any other issue, this Court must defer

to any findings of fact underpinning the circuit court’s award of fees and costs. See C.S. v. Va.

Beach Dep’t of Soc. Servs., 41 Va. App. 557, 566, 586 S.E.2d 884, 888 (2003); see also Green v.

Va. State Bar ex rel. Seventh Dist. Comm., 274 Va. 775, 789, 652 S.E.2d 118, 125 (2007)

(stating that “factual findings [are] given ‘substantial weight’ under [an] abuse of discretion

standard” (quoting Blue v. Seventh Dis. Comm., 220 Va. 1056, 1061-62, 265 S.E.2d 753, 756-57

(1980))).

       The record, so viewed, supports the circuit court’s award of fees and costs and does not

support the husband’s claim that the court found that the basis for all the fees and costs was “a

result [of the husband’s] adulterous conduct.” Rather, the court relied on the husband’s adultery

only indirectly, in a manner that did not constitute an abuse of discretion.

       The court noted first the fact that the husband had both “vastly more income” than the

wife and vastly more earning potential. This finding is supported by the record, which indicates

that the husband has a college degree and continues to earn appearance fees based on his former

career as a professional athlete. The wife, by contrast, never finished college, worked at

relatively low-wage jobs, and did so for only a small portion of the marriage.

       The circuit court also found that the wife had little knowledge about the family’s finances

during the marriage and, consequently, had to “incur many expenses in order to prepare and

argue for her equitable share.” The court further found that the husband’s “adulterous conduct,”

which the evidence established occurred repeatedly throughout the marriage, “destroyed [the

wife’s] trust in him.” Finally, the court found that the wife’s questioning of the husband’s

“forthrightness” regarding finances in the divorce litigation was “the logical, reasonable, and

                                               - 16 -
understandable reaction to [his] adulterous conduct” and that “the [in]escapable consequence of

such conduct [was] incurring attorney’s fees.”

       The court’s rationale for awarding fees and costs and its underlying findings of fact

indicate that the award did not stem from the adultery itself and was not an abuse of discretion.

                             D. Attorney’s Fees and Costs on Appeal

       Each party seeks an award of attorney’s fees and costs on appeal. Pursuant to Rule

5A:30, in specified cases in which attorney’s fees are recoverable under Title 20 of the Code of

Virginia, the Court of Appeals “may award” some or all of the fees requested or “remand the

issue to the circuit court . . . for a determination thereof.” Rule 5A:30(b)(1), (2). Whether to

award fees is discretionary. See id.; Harper v. Va. Dep’t of Tax’n, 250 Va. 184, 194, 462 S.E.2d

892, 898 (1995). In determining whether to make such an award, the Court may consider factors

including whether the requesting party has prevailed, whether the appeal was “fairly debatable”

or frivolous, whether either party “generated unnecessary delay or expense” in pursuing his or

her interests, and whether other reasons exist to support an award of attorney’s fees and costs.

See Rule 5A:30(b)(3), (4); Brandau v. Brandau, 52 Va. App. 632, 642, 666 S.E.2d 532, 538

(2008); Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004);

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In addition, Rule

5A:30(b)(3) specifically directs this Court to “consider all the equities of the case.”

       Considering all the factors set out in Rule 5A:30 and the applicable case law, we see no

reason that either the husband or the wife should be required to pay the other party’s attorney’s

fees and costs in this case. Accordingly, in the exercise of our discretion, we decline to make an

award of attorney’s fees and costs to either party. See, e.g., Wright v. Wright, 61 Va. App. 432,

470, 737 S.E.2d 519, 537-38 (2013).




                                                - 17 -
                                         III. CONCLUSION

       In sum, we affirm the circuit court’s classification of Wells Fargo accounts #5889 and

#7913 as marital, including its finding that the husband failed to trace the funds in the accounts

to his separate property. We also affirm the court’s conclusion that the husband’s LOD disability

benefits constituted fully divisible pension or retirement benefits rather than a personal injury

award with a separate component. We hold that the court erred by failing to subtract the lien on

Wells Fargo account #5889 in order to value the account before distributing it between the

parties. Consequently, we reverse on this aspect of the equitable distribution ruling and remand

for a redetermination of valuation and division. Additionally, because the circuit court must

correct its equitable distribution award, it must also consider on remand any necessary

adjustments to its child and spousal support awards in light of the adjustment in the equitable

distribution. Regarding the circuit court’s award to the wife of her attorney’s fees and costs in

that court, the circuit court’s findings of fact, which are not plainly wrong, establish that it did

not abuse its discretion by making that award. Finally, we deny the parties’ requests for

attorney’s fees and costs in this appeal.

                                                  Affirmed in part and reversed and remanded in part.




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