                     COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judge Bumgardner and
           Senior Judge Hodges


ADAM KEATING WYATT
                                            MEMORANDUM OPINION *
v.   Record No. 1410-01-2                       PER CURIAM
                                            SEPTEMBER 11, 2001
MELANIE KAY-WYATT


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                 Horace A. Revercomb, III, Judge

           (Winfred R. Mundle; Robert M. Alexander, on
           brief), for appellant.

           (Paul A. Simpson; Chandra D. Lantz;
           Hirschler, Fleischer, Weinberg, Cox & Allen,
           on brief), for appellee.


     Adam Keating Wyatt (husband) appeals from a final decree of

divorce entered by the circuit court awarding Melanie Kay-Wyatt

(wife) a divorce on the ground of desertion pursuant to Code

§ 20-91(6).   On appeal, husband contends the trial court erred in

(1) granting wife a divorce on the ground of desertion, (2)

finding husband had the ability to pay $2,200 monthly support to

wife, (3) finding that $2,200 monthly support would provide wife

with a standard of living at a level to which she had become

accustomed during the marriage, (4) calculating wife's attorney's

fees as a financial obligation under its support analysis, (5)


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
failing to consider all the statutory factors in its support

determination, (6) allocating the marital debt, (7) allocating the

marital assets, (8) allowing the commissioner to rely on his notes

rather than the transcripts, and (9) determining the parties' net

worth in its equitable distribution analysis.    Upon reviewing the

record and briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the decision of

the trial court.    See Rule 5A:27.

     On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

prevailing below.    See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

                              Background

     The parties married on June 25, 1994.     During the course of

their marriage, the couple had two children.    Following an

argument on the evening of December 4, 1998, husband left the

marital home and began living above his dental practice in a

building the couple owned.    Husband never again stayed at the

marital home.

     Husband established his own dental practice in 1996.      By

March 1997, he was treating more than 200 patients per month, had

a waiting list for new patients and, during his second full year

practicing, realized net profits of $93,396.    Soon after the

couple's separation, husband began neglecting his practice.

Husband cancelled at least one HMO agreement, decreased his

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patient load, reduced the hours in which he saw patients, and

spent extended periods away from his practice.   In January 2000,

husband left his private practice and accepted a position as a

staff dentist, substantially reducing his income.

     Husband also refused to make the mortgage payments on the

marital home, causing the home to be lost to foreclosure.

Similarly, the office building the couple owned was lost through a

conveyance in lieu of foreclosure when husband failed to maintain

the payments.   Husband then filed for bankruptcy protection and

discharged a substantial portion of his debts.

                              Analysis

                             Desertion

                                 I.

     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).   "'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)).

     "[D]esertion is a breach of matrimonial duty - an actual

breaking off of the matrimonial cohabitation coupled with an

intent to desert in the mind of the deserting party."

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Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600,

602 (1986).   Husband left the marital home on December 4, 1998.

He announced that he was leaving and in a letter to wife dated

December 7, 1998, husband wrote, "I think that the time has come

to an end in our relationship . . . ."      Husband never returned

to the marital home to sleep or stay from the time he left.

"[I]n order to end a desertion, the parties must resume the

matrimonial cohabitation with the intent to end the desertion."

Id. at 299, 350 S.E.2d at 602.    Because there is evidence to

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

disturb it on appeal.

                               Support

                           II. through V.

       "Whether and how much spousal support will be awarded is a

matter of discretion for the trial court."      Barker v. Barker, 27

Va. App. 519, 527, 500 S.E.2d 240, 244 (1998).     "In fixing the

amount of the spousal support award, . . . the court's ruling

will not be disturbed on appeal unless there has been a clear

abuse of discretion.    We will reverse the trial court only when

its decision is plainly wrong or without evidence to support

it."    Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635,

644 (1992) (citations omitted).

       The trial court's discretion must not be exercised without

reference to Code § 20-107.1, which "commands that, in order to

exercise its discretion, '[t]he court shall . . . consider' the

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specific factors contained therein.     Failure to do so is

reversible error."    Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d

89, 90 (1980) (citation omitted).   In his report, the

commissioner listed and discussed each statutory factor set

forth in Code § 20-107.1.    The commissioner concluded that

wife's annual income was $30,039.12 and husband earned $60,762.

The commissioner also noted that husband's annual income

previously had been as high as $84,378.    The commissioner noted

the couple's high standard of living during the marriage and

reported that husband was currently working at less than his

full earning capacity.    Wife retained custody of the couple's

two minor children.   The commissioner and the trial court

carefully considered the household expenses of each party.

Based upon consideration of all the factors, the commissioner

recommended that wife receive $2,200 per month in support.

     "In setting or modifying spousal support or child support,

a court may impute income to a party voluntarily unemployed or

underemployed."   Blackburn v. Michael, 30 Va. App. 95, 102, 515

S.E.2d 780, 783 (1999).   The trial court found that husband, in

allowing his practice to diminish shortly after the separation,

and in accepting a lower paying staff dentist position, was

voluntarily underemployed.

     The trial court stated that "each of the parties shall bear

his or her own attorney's fees."    The commissioner did not err

in considering wife's attorney's fees as a financial obligation

                                - 5 -
in determining the amount of support to award her.      See Code

§ 20-107.1(E).   Considering the obligation as one of wife's

debts did not result in husband being ordered to pay wife's

attorney's fees.   In fact, the commissioner's report

specifically states that each party is responsible for his or

her attorney's fees.

     In his report, the commissioner found that during the

marriage, wife contributed monetarily to the well-being of the

family by working full time, earning approximately $30,000 per

year as a teacher.   She also provided the major care for the

children and took care of the household chores.   Additionally,

she assisted husband in establishing his dental practice.

     "When a party to a divorce suit establishes an entitlement

to support, the law imposes upon the party liable for that

support a duty to maintain the dependent party according to the

parties' marital lifestyle."   McCombs v. McCombs, 26 Va. App.

432, 436, 494 S.E.2d 906, 908 (1998).   After considering all of

the relevant factors, the trial court determined that an award

of $2,200 per month afforded wife an appropriate standard of

living and was within husband's ability to pay.   We find no

abuse of discretion in the trial court's award of spousal

support to wife.




                               - 6 -
                      Equitable Distribution

                         VI., VII. and IX.

     The commissioner's report, adopted by the trial court,

recites in detail the equitable distribution factors set forth

in Code § 20-107.3.

          "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). Unless the
          record shows that the judge has abused his
          or her discretion by misapplying the
          statutory factors, the judge's determination
          will not be reversed on appeal. See id.

Anderson v. Anderson, 29 Va. App. 673, 692-93, 514 S.E.2d 369,

379 (1999).   The record clearly demonstrates that the

commissioner and the trial court considered and weighed each of

the required statutory factors in determining the distribution

of the parties' debts and assets.

                       Commissioner's Notes

                               VIII.

     In his brief, husband's eighth question presented is:

"Whether the trial court committed error when he adopted fully

without modification the commissioner's practice of using his

notes of testimonial evidence instead of the actual transcript

that he had in his possession at the relevant times?"    Husband,

however, provided neither argument nor precedent in support of


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this question presented.   See Littlejohn v. Commonwealth, 24 Va.

App. 401, 409, 482 S.E.2d 853, 857 (1997) (a party waives an

issue on appeal if he does not submit written argument on the

issue in his appellate brief); Rule 5A:20(e).   Accordingly, we

will not address this question presented.

     Accordingly, we summarily affirm the decision of the trial

court.   See Rule 5A:27.

                                                         Affirmed.




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