                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Alexandria, Virginia


MANHAL MOGRABI
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 1518-11-4                                      JUDGE RANDOLPH A. BEALES
                                                                        MAY 15, 2012
MANAL ABDELLATIF


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  R. Terrence Ney, Judge

                 Emilia Castillo (Mercado & Castillo, PLLC, on brief), for appellant.

                 Kathryn D. Bigus (Tate Bywater & Fuller, PLC, on brief), for
                 appellee.


       Manhal Mograbi (husband) appeals the final divorce decree entered by the trial court,

raising several issues concerning the trial court’s award of equitable distribution, spousal

support, and attorney’s fees in the favor of Manal Abdellatif (wife). For the following reasons,

we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings

consistent with this opinion.

                                          I. BACKGROUND 1

       The parties were married in Fairfax County in June 1996, and four children were born

during the marriage. Husband owned a travel agency, and wife was a stay-at-home mother.

Except for a period from 2004-2007 when they relocated to the Kingdom of Jordan, the parties


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         On appeal, we consider the evidence in the light most favorable to wife, who was the
prevailing party in the trial court, and grant to wife the benefit of any reasonable inferences
flowing from the evidence. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834
(2003).
resided in Northern Virginia – first in the Annandale area of Fairfax County (the Annandale

home) and then, following their return from Jordan, in the Dunn Loring area of Fairfax County

(the Dunn Loring home). 2

       At the divorce trial, wife did not dispute that husband purchased the Annandale home

prior to the parties’ marriage for approximately $112,000. However, wife asserted that the

mortgage for the Annandale home was still being paid after the parties were married and that the

value of the Annandale home increased greatly during the marriage due to her own personal

efforts and through the use of marital funds. Wife testified that, among other improvements to

the Annandale home, she laid tile and helped build two decks and a sun room. Wife’s testimony

was corroborated by Muwaffaq Alradaideh, the parties’ building contractor, who actually saw

wife performing some of this work. Alradaideh testified that wife’s efforts “[a]bsolutely”

increased the value of the Annandale home by approximately $10,000. In addition, the parties

hired Alradaideh to build an addition to the Annandale home, which was paid for using marital

funds. According to Alradaideh, this addition increased the value of the Annandale home by

another $40,000 to $45,000. The Annandale home was sold for $365,000 in 2004, and the

proceeds were deposited into the parties’ joint bank account, where the profits from husband’s

business were also deposited.

       In 2004, the parties and their children relocated to Jordan and resided in a house in

Sweilah, a suburb of Amman. Wife testified that husband purchased this home (the Jordanian

home) during the marriage, in preparation for the parties’ move to Jordan. Wife’s testimony was


       2
         Wife (and the children) left the Dunn Loring home in July 2010, resided temporarily at
a women’s shelter, and obtained a protective order from the juvenile and domestic relations
(JDR) district court later that month granting her possession of the Dunn Loring home. Husband
appealed the JDR court’s order to the circuit court, which granted wife the same relief in its own
protective order. Wife then sought a divorce from bed and board in September 2010, on the
grounds of cruelty and reasonable apprehension of bodily harm, and the trial court granted her a
divorce on this basis.
                                                -2-
corroborated both by Alradeideh and by wife’s cousin, Isaac Abdellatif, to whom husband

acknowledged owning the Jordanian home. According to Alradeidah, husband told him that,

“when he sold the house in Annandale and sen[t] his family to Jordan,” husband acknowledged

“that he purchased a house in Jordan next to the King’s palace” and that husband mentioned

paying “a lot of money for that.” In addition, over husband’s objection, the trial court admitted

three Jordanian documents (and their English language translations) that wife offered as further

evidence that husband had owned and sold the Jordanian home. 3

       After the parties returned to the United States, they eventually moved into the Dunn

Loring home. The property for the Dunn Loring home had been purchased in part from the

proceeds of the sale of the Annandale home. Alradeidah was then hired to demolish the existing

house sitting on this property and then to build a new, much larger home. Wife and Alradeidah

both testified that many of wife’s ideas for the design of the Dunn Loring home were

incorporated into the finished product.

       The trial judge awarded wife an equal share in the equity of the Dunn Loring home,

finding that this home was marital property. The trial court found that any tracing of husband’s

original separate interest in the Annandale home “absolutely cannot be done with regard to the

Dunn Loring” home. The trial court also found that husband purchased the Jordanian home

during the marriage, that the Jordanian home was marital property, and that wife was entitled to


       3
          On the first day of the divorce trial, husband specifically denied that the family ever
lived in Sweilah. Husband claimed instead that the family lived in Khalda, about three miles
away from Sweilah. Husband denied ever owning a home in Jordan or ever seeing the Jordanian
documents that wife introduced. On the second day of trial, husband apparently contradicted his
testimony from the day before, acknowledging that his family actually had lived in the very
same house identified by wife the previous day – i.e., in Sweilah, not Khalda. Husband again
denied ever owning the Jordanian home in Sweilah, claiming that it was owned by someone else.
Husband attempted to introduce a document identifying who he claimed to be the “true owner”
of the Jordanian home, but the trial court sustained wife’s objection to the introduction of this
evidence because the document was not on the exhibit list. Husband has not appealed this
evidentiary ruling.
                                                  -3-
an equal share of the sale price of the Jordanian home, which the trial court found was 625,000

Jordanian dinars.

       Furthermore, the trial court awarded wife spousal support, as he noted from the bench,

“based upon the calculations and the estimation of [husband’s and wife’s] income submitted” by

wife’s counsel. The trial court rejected husband’s claim that he was earning essentially no

income from his travel agency by the time of the divorce. Instead, after reviewing husband’s

bank account activity from several years prior to the divorce litigation, the trial court found that

“there were vast transfers of cash coming in and going out that remain, especially for 2009,

absolutely unexplained” by husband. Adopting the calculations from wife’s combined support

worksheet, the trial court imputed $7,667 in monthly income to husband and used this figure as a

basis for the spousal support award to wife. Neither the transcript of the divorce trial nor the trial

court’s final decree of divorce reflects that the trial court mentioned or expressly considered the

spousal support factors stated in Code § 20-107.1(E) that must be considered as part of any

award of spousal support in a contested case.

       The trial court awarded wife attorney’s fees “for the prosecution of this litigation . . .

cumulative from the time of the protective orders” that wife sought in the JDR and circuit courts.

                                            II. ANALYSIS

                        A. ISSUES RELATING TO EQUITABLE DISTRIBUTION

       Among the requirements of the equitable distribution statute, Code § 20-107.3, a trial

court shall “determine the legal title as between the parties, and the ownership and value of all

property, real or personal, tangible or intangible, of the parties and shall consider which of such

property is separate property, which is marital property, and which is part separate and part

marital” property. Code § 20-107.3(A). Thus, Code § 20-107.3 “‘mandates’ that trial courts

determine the ownership and value of all real and personal property of the parties.” Bowers v.

                                                -4-
Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (quoting Hodges v. Hodges, 2

Va. App. 508, 516, 347 S.E.2d 134, 139 (1986)).

       “In reviewing an equitable distribution award on appeal, we have recognized that the trial

court’s job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing

the many considerations and circumstances that are presented in each case.” Klein v. Klein, 11

Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). Accordingly, “decisions concerning equitable

distribution rest within the sound discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence.” McDavid v. McDavid, 19 Va. App. 406,

407-08, 451 S.E.2d 713, 715 (1994); see Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990). Moreover, “[i]t is well established that the trier of fact ascertains a

witness’ credibility, determines the weight to be given to their testimony, and has discretion to

accept or reject any of the witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668 (1997) (en banc).

                                          Jordanian Home

       In his first assignment of error, husband argues that the trial court erred when it admitted

the following three Jordanian documents (and their English language translations): (1) a “Title

Deed of Immovable Properties” identifying the Jordanian home in Sweilah and indicating that

husband was its owner; (2) an assessor’s report describing and valuing this property; and (3) a

“Vending Contract” indicating that husband sold the property for a sum certain. The trial court




                                                -5-
admitted these Jordanian documents under Code §§ 8.01-389 4 and 8.01-390. 5 Husband contends

that the trial court erred when it admitted the Jordanian documents under Code §§ 8.01-389 and

8.01-390 because he claims that the Jordanian documents are categorically inadmissible under

both of these statutes and because he claims that the documents were not properly authenticated

as required by these statutes.

       For purposes of this appeal, we will assume without deciding that the trial court erred

when it admitted the three Jordanian documents offered by wife under Code §§ 8.01-389 and

8.01-390. However, even assuming without deciding that the trial court erred in this way, the

trial court’s order of equitable distribution pertaining to this property nevertheless was supported

by other credible evidence in the record on appeal.

       Viewing the evidence in the light most favorable to wife, who prevailed in the trial court,

the record on appeal establishes that husband purchased the Jordanian home during the marriage

and that he sold it for 625,000 Jordanian dinars. 6 Ample testimony in the record also established


       4
          The relevant portions of Code § 8.01-389 state that the “records of any judicial
proceeding and any other official record of any court of another state or country, or of the United
States, shall be received as prima facie evidence provided that such records are authenticated by
the clerk of the court where preserved to be a true record,” Code § 8.01-389(A1), and that
“recitals of any fact in a deed or deed of trust of record conveying any interest in real property
shall be prima facie evidence of that fact,” Code § 8.01-389(C).
       5
           Code § 8.01-390, states, in relevant part,

                 Copies of records of this Commonwealth, of another state, of the
                 United States, of another country, or of any political subdivision or
                 agency of the same, other than those located in a clerk’s office of a
                 court, shall be received as prima facie evidence provided that such
                 copies are authenticated to be true copies either by the custodian
                 thereof or by the person to whom the custodian reports, if they are
                 different.

Code § 8.01-390(A).
       6
        When wife testified that husband sold the Jordanian home for 625,000 Jordanian dinars,
husband’s counsel objected on the basis that wife was “testifying from what the document [i.e.,
                                              -6-
the conversion rate for converting Jordanian dinars to American dollars – which husband has not

challenged on appeal. Therefore, evidence within the record on appeal proved that the Jordanian

home was marital property7 and provided a basis from which the trial court could value this

property in American dollars. On this record, we find no basis for concluding that the trial

court’s order distributing the proceeds from the sale of the Jordanian home constituted an abuse

of discretion under Code § 20-107.3. Accordingly, we will not disturb the trial court’s equitable

distribution award pertaining to this property.

                                        Dunn Loring Home

       In his second assignment of error, husband argues that the trial court committed

reversible error when it found that the Dunn Loring home was marital property and awarded wife

an equal marital share in the equity of the Dunn Loring home. Husband contends that the trial

court failed to consider that he purchased the Annandale home (the predecessor to the Dunn

Loring home) prior to the marriage and that the proceeds from the sale of the Annandale home

were used to purchase the land on which the Dunn Loring home subsequently was built.

However, the trial court’s conclusion that husband failed to trace any specific separate interest in

the Dunn Loring home was supported by credible evidence in the record.

       “Because the trial court’s classification of property is a finding of fact, that classification

will not be reversed on appeal unless it is plainly wrong or without evidence to support it.”



the vending contract] says,” which the trial court interpreted as a further objection to the
admissibility of the Jordanian documents. Husband never actually moved to strike wife’s
testimony, “thereby rendering it part of the record for purposes of appeal.” M.G. v. Albemarle
County Dep’t of Soc. Servs., 41 Va. App. 170, 189 n.10, 583 S.E.2d 761, 770 n.10 (2003).
       7
         Although husband denied any ownership of the Jordanian home at all, husband’s
counsel argued in the trial court that the Jordanian home was husband’s separate property
because it was a gift from his family. The trial court’s finding that husband failed to satisfy the
burden of establishing that the Jordanian home was a gift was not plainly wrong or unsupported
by the evidence.

                                                  -7-
Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005). In this case, the Dunn

Loring home was presumptively marital property because it was acquired during the marriage.

See Code § 20-107.3(A)(2)(iii) (defining marital property as “all other property acquired by each

party during the marriage which is not separate property”). Therefore, it was husband’s burden

in the trial court to show that the Dunn Loring home was acquired “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) (emphasis added).

               When marital property and separate property are commingled into
               newly acquired property resulting in the loss of identity of the
               contributing properties, the commingled property shall be deemed
               transmuted to marital property. However, to the extent the
               contributed property is retraceable by a preponderance of the
               evidence and was not a gift, the contributed property shall retain its
               original classification.

Code § 20-107.3(A)(3)(e).

               In other words, if a party “chooses to commingle marital and
               non-marital funds to the point that direct tracing is impossible,” the
               claimed separate property loses its separate status. Melrod v.
               Melrod, 83 Md. App. 180, 574 A.2d 1, 5 (Md. [Ct. Spec.] App.
               1990). Even if a party can prove that some part of an asset is
               separate, if the court cannot determine the separate amount, the
               “unknown amount contributed from the separate source transmutes
               by commingling and becomes marital property.” Brett R. Turner,
               Equitable Distribution of Property 268 (1994).

Rahbaran v. Rahbaran, 26 Va. App. 195, 208-09, 494 S.E.2d 135, 141 (1997). “Whether a

transmuted asset can be traced back to [its original] property interest is determined by the

circumstances of each case, including the value and identity of the separate interest at the time of

the transmutation.” von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).

       Here, it is undisputed that husband purchased the Annandale home prior to the marriage

for approximately $112,000. However, there was still an outstanding mortgage on the home

when the parties married – and there is no evidence that the mortgage was paid during the

                                                -8-
marriage with anything other than marital funds. Significant improvements were then made to

the Annandale home using marital funds, greatly increasing its value. According to Alradeidah,

the addition that he built increased the value of the Annandale home by $40,000 to $45,000. In

addition, Alradeidah testified that wife’s own personal efforts in the renovation of the Annandale

home “[a]bsolutely” increased its value by another $10,000. Thus, the use of marital funds and

wife’s personal efforts certainly contributed to a significant increase in the Annandale home’s

value. See Code § 20-107.3(A)(1). The trial court reasonably rejected husband’s claim at trial

that the increase in the value of the Annandale home resulted only from changes in the real estate

market (and not from any improvements through the use of marital funds or wife’s personal

efforts).

        In 2004, eight years after the parties married, the Annandale home was sold for $365,000.

The proceeds from the sale of the Annandale home were deposited into the parties’ joint bank

account, where they were commingled with other marital funds. The purchase and construction

of the Dunn Loring home then proceeded in several phases. First, the land on which the Dunn

Loring home was eventually built was purchased using funds from the joint bank account

(including the proceeds from the sale of the Annandale home). Next, Alradeidah was paid to

demolish the structure that existed when this property was purchased. Finally, Alradeidah was

paid to build a new structure on the Dunn Loring property, which included wife’s ideas for the

design of the home. Husband claimed that the construction of the Dunn Loring home was

funded by investments from husband’s extended family that were gifts to husband. However, the

trial court rejected this claim, finding that husband’s evidence supporting this claim lacked

credibility.

        In light of all of these circumstances, the trial court (acting as factfinder) was not plainly

wrong when it found that husband “absolutely cannot” show “a distinct discrete identification”

                                                 -9-
of any separate interest in the Dunn Loring home. Thus, the trial court did not err when it found

that husband failed to satisfy his burden of tracing any identifiable separate interest in the equity

in the Dunn Loring home that remained from his original separate interest in the Annandale

home – before that home was greatly improved during the marriage and then sold. See Code

§ 20-107.3(A)(3)(e); von Raab, 26 Va. App. at 248, 494 S.E.2d at 160. Accordingly, the trial

court’s classification of the Dunn Loring home as marital property was neither plainly wrong nor

without evidence to support it, and, therefore, that classification will not be reversed on appeal.

Ranney, 45 Va. App. at 32, 608 S.E.2d at 492.

                            B. ISSUES RELATING TO SPOUSAL SUPPORT

       This Court will not reverse a trial court’s decision concerning spousal support except

when “its decision is plainly wrong or without evidence to support it.” Northcutt v. Northcutt,

39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002). This established standard of review on

appeal reflects that “[a] circuit court has ‘broad discretion in setting spousal support and its

determination will not be disturbed except for a clear abuse of discretion.’” Fadness v. Fadness,

52 Va. App. 833, 845, 667 S.E.2d 857, 863 (2008) (quoting Brooks v. Brooks, 27 Va. App. 314,

317, 498 S.E.2d 461, 463 (1998)).

       Husband presents two assignments of error challenging the trial court’s order of spousal

support to wife. In his third assignment of error, husband contends that the trial court abused its

discretion when it imputed income to him. In his fourth assignment of error, husband contends

that the trial court erred as a matter of law when it based the spousal support award on the

calculations in wife’s combined support worksheet – without expressly considering the spousal

support factors provided in Code § 20-107.1(E). We conclude that the matter must be remanded

to the trial court for a new spousal support hearing because the record on appeal does not include

any written findings addressing the Code § 20-107.1(E) spousal support factors, as required by

                                                - 10 -
Code § 20-107.1(F) and by this Court’s opinion in Robinson v. Robinson, 50 Va. App. 189, 648

S.E.2d 314 (2007). Therefore, we do not address the trial court’s imputation of income to

husband in this opinion.8

       Code § 20-107.1(F) states, in pertinent part, “In contested cases in the circuit courts, any

order granting, reserving or denying a request for spousal support shall be accompanied by

written findings and conclusions of the court identifying the factors in subsection E which

support the court’s order.” (Emphasis added). Prior to the 1998 enactment of Code

§ 20-107.1(F), this Court had held that, “when a trial court failed to make factual findings or

present any explanation of the circumstances that influenced its decision regarding spousal

support, we could examine the record to determine if the trial court’s decision was supported by

evidence relevant to the statutory factors.” Robinson, 50 Va. App. at 195, 648 S.E.2d at 317

(citing Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 427 (1986)). However, this

Court explained in Robinson that the Court’s prior method of analysis has been “superseded by

the enactment of Code § 20-107.1(F)” – and that Code § 20-107.1, as amended, now clearly

“does not contain a provision permitting such review.” Id. “On the contrary, Code

§ 20-107.1(F) specifically requires that in a contested case, the trial court shall provide written

findings and conclusions identifying the statutory factors that support the court’s ruling on a

request for spousal support.” Id.

       “The written explanation requirement can be satisfied by trial court orders, written letter

opinions filed in the court’s record, oral rulings from the bench recorded in a written transcript,

as well as findings and conclusions recorded in a statement of facts in lieu of a transcript

       8
        Therefore, upon remand, among the issues that may be considered by the trial court is
whether income should be imputed given the circumstances in the existing record, including any
evidence of recent earned income by the parties and any evidence of being voluntarily
unemployed or underemployed. See Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d
780, 783 (1999) (“In setting or modifying spousal support or child support, a court may impute
income to a party voluntarily unemployed or underemployed.”).
                                             - 11 -
pursuant to Rule 5A:8(c).” Pilati v. Pilati, 59 Va. App. 176, 182, 717 S.E.2d 807, 810 (2011)

(internal quotation marks and citation omitted). Regardless of the particular form of the written

explanation, however, “to comply with Code § 20-107.1(F), the trial court should identify all

relevant statutory factors supporting its decision and provide an explanation of its resolution of

any significant underlying factual disputes.” Id.; see also Benzine v. Benzine, 52 Va. App. 256,

261, 663 S.E.2d 105, 108 (2008) (“It is the trial court’s thought process and consideration of the

Code § 20-107.1(E) factors related to its spousal support decision in contested cases that the

legislature has determined must be reflected in its order.”).

       Wife notes that the trial court specifically considered the equitable distribution factors

listed in Code § 20-107.3 when it made its findings concerning equitable distribution and that

some of the equitable distribution factors and the spousal support factors listed in Code

§ 20-107.1(E) are the same. However, the trial court’s thorough consideration of the eleven

equitable distribution factors does not necessarily mean that the thirteen spousal support factors

of Code § 20-107.1(E) were duly considered in this case. Even the factors that are the same

under both equitable distribution and spousal support might be weighed differently with the other

factors considered in making a spousal support award than they were in making an equitable

distribution award. Moreover, Code § 20-107.1(F) specifically requires that a spousal support

order “shall be accompanied by written findings and conclusions of the court identifying the

factors in subsection E which support the court’s order.” (Emphasis added).

       “[W]here a trial court is required to make written findings supporting its decision, its

failure to do so constitutes reversible error.” Robinson. 50 Va. App. at 194, 648 S.E.2d at 316.

The record on appeal here does not include any written “findings or conclusions identifying the

factors listed in Code § 20-107.1(E) that support the spousal support award.” Id. at 196, 648

S.E.2d at 317. Accordingly, on this basis, “we reverse the spousal support award and remand the

                                               - 12 -
case to the trial court for reconsideration of the award based upon the existing record and in

keeping with this opinion.” Id.

                            C. ISSUES RELATING TO ATTORNEY’S FEES

       “‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion

and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30

Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,

357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness

under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272,

277, 338 S.E.2d 159, 162 (1985).

      Award of Attorney’s Fees for Wife’s Legal Costs of Obtaining the Protective Orders

       In his fifth assignment of error, husband argues that the trial court abused its discretion

when it awarded wife attorney’s fees for the legal costs of obtaining protective orders against

husband in the JDR court and then in the circuit court. Husband contends that the legal fees

incurred while obtaining protective orders cannot be included in an award of attorney’s fees in a

divorce case because, he claims, a protective order proceeding is not an “ancillary proceeding”

for the purpose of divorce cases. See Tyszcenko v. Donatelli, 53 Va. App. 209, 222, 670 S.E.2d

49, 56 (2008) (“Code §§ 20-79(b) and 20-99(5) provide the statutory basis for the broad

discretionary authority circuit courts have to award attorney’s fees and other costs as the equities

of a divorce case and its ancillary proceedings may require.”).

       Under Rule 5A:18, “[t]he same argument must have been raised, with specificity, at trial

before it can be considered on appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324, 591

S.E.2d 712, 719 (2004); see Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444,

448 (2003) (en banc) (“Making one specific argument on an issue does not preserve a separate

legal point on the same issue for review.”). Here, husband never made any argument in the trial

                                               - 13 -
court that the protective order proceedings in the JDR and circuit courts were not “ancillary” to

the parties’ divorce case. This specific argument was not raised at the divorce trial 9 or in

husband’s written objections to the final divorce decree. 10 Accordingly, appellate consideration

of the specific argument raised in husband’s fifth assignment of error is barred under Rule 5A:18

because he did not raise this same argument in the trial court.

                     Evidentiary Basis for the Award of Attorney’s Fees to Wife

       In his sixth assignment of error, husband argues that the award of attorney’s fees to wife

was not supported by the record because the trial court did not specifically articulate from the




       9
          Husband points to a portion of the trial transcript where his counsel contended, “I know
of no precedents which allows this Court to award this plaintiff attorneys fees for other
proceedings, especially when she had the opportunity in the other proceedings to present
attorney’s fees affidavits and get awards at that point.” (Emphasis added). Husband’s argument
in the trial court that wife had another avenue for obtaining attorney’s fees for a protective order
is different than the argument that husband raises in his fifth assignment of error – i.e., that a
protective order proceeding is not “ancillary” to a divorce case, as defined by this Court in
Tyszcenko. The trial court simply was never asked to address that issue at trial. Thus, husband’s
stated argument in the trial court is inadequate to preserve his different argument on appeal under
Rule 5A:18.
       10
            In his written objections to the final divorce decree, husband stated:

                         6. Defendant objects to the imposition of attorneys’ fees for
                 the Protective Order matter handled in July of 2010 in the Juvenile
                 and Domestic Relations Court and later appealed to the Circuit
                 Court of Fairfax County. The original courts hearing the
                 Protective Order matters denied an award of attorney’s fees.

                         7. Defendant objects to the court’s determination that he
                 had two separate protective orders entered against him since the
                 “second order” was based upon the same set of circumstances as
                 the “first” and was issued as a result of the appeal of the first order.

         Thus, husband’s written objections did not contain any hint of the argument on appeal
that attorney’s fees could not be awarded for the legal costs of obtaining the protective orders
because a protective order proceeding is not “ancillary” to a divorce case.

                                                  - 14 -
bench the amount of attorney’s fees to be awarded to wife. 11 Husband contends that the award

of attorney’s fees in the final divorce decree, which was drafted by wife’s counsel, reflected

attorney’s fees that were never offered into evidence or found as reasonable by the trial court at

the divorce trial.

        In its ruling from the bench at the conclusion of the divorce trial, the trial court awarded

attorney’s fees to wife “for the prosecution of this litigation . . . cumulative from the time of the

protective orders that were sought in the lower court.” The trial court then directed wife’s

counsel to submit a draft final divorce decree that encompassed the trial court’s rulings. The

draft divorce decree – which the trial court reviewed, signed, and entered as the final divorce

decree – included wife’s attorney’s fees that were reflected in the attorney’s fees affidavit

prepared by wife’s counsel. This attorney’s fees affidavit was admitted into the trial evidence as

Plaintiff’s Exhibit 34. To the extent that the final divorce decree includes attorney’s fees beyond

those listed in the attorney’s fees affidavit, it is clear that the final divorce decree also reflected

the attorney’s fees incurred by wife for the preparation and entry of the draft final divorce

decree. The trial court’s inclusion of these legal fees in its award of attorney’s fees to wife was

reasonable and certainly did not amount to an abuse of the trial court’s discretion.

                                           III. CONCLUSION

        We affirm the trial court’s equitable distribution rulings and its award of attorney’s fees

to wife. However, we are required under Code § 20-107.1(F) to reverse the trial court’s award of

spousal support to wife because the record on appeal contains no written findings or conclusions

        11
           Husband also includes a seventh assignment of error, which states, “The court erred in
allowing Wife’s counsel to interlineate dates and amounts in the order not stated in Court and in
entering the order without proper notice to Husband or his counsel.” However, husband’s brief
contains no argument specifically addressing this assignment of error. See Rule 5A:20(e)
(stating that an appellant’s opening brief shall contain “the argument (including principles of law
and authorities) relating to each assignment of error”). Accordingly, we do not address
appellant’s seventh assignment of error.

                                                 - 15 -
specifically addressing the Code § 20-107.1(E) spousal support factors and applying those

factors to the circumstances of this case. Accordingly, we remand the award of spousal support

to the trial court for its reconsideration and for any necessary further proceedings consistent with

this opinion based upon the existing record. 12

                                                                                   Affirmed in part,
                                                                                   reversed in part,
                                                                                     and remanded.




       12
          Wife seeks attorney’s fees on appeal. However, “[a]s we are reversing this judgment
in part, we cannot say that appellant’s appeal is entirely without merit.” West v. West, 59
Va. App. 225, 237, 717 S.E.2d 831, 836 (2011). Therefore, we decline to award appellate
attorney’s fees to wife.
                                                - 16 -
