                     COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judge Coleman and
          Senior Judge Duff
Argued at Alexandria, Virginia


STEPHEN A. SHARP
                                        MEMORANDUM OPINION *
v.   Record No. 0469-97-4            BY JUDGE CHARLES H. DUFF
                                           JUNE 2, 1998
LYNN C. (SHARP) WILSON


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                  William G. Plummer, Judge Designate
            Stephen A. Sharp, pro se.

            No brief or argument for appellee.



     Stephen A. Sharp (father) appeals the decision of the

circuit court awarding child support to Lynn C. (Sharp) Wilson

(mother).    Father contends that the trial court (1) erred by

awarding child support retroactive to the date of the original

petition; (2) erred in determining the amount of child support

based upon assets and income unavailable to father; (3) abused

its discretion by failing to follow the statutory child support

guidelines; and (4) abused its discretion by awarding attorney's

fees to mother.
                 Retroactivity of Child Support Award

     We find no error in the trial court's decision to order the

payment of child support as of the date of this Court's opinion

reversing the previous child support decree.     Code § 20-108.1(B)

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
expressly provides:    "Liability for support shall be determined

retroactively for the period measured from the date that the

proceeding was commenced by the filing of an action with the

court provided the complainant exercised due diligence in the

service of the respondent."   While father contends that this

amendment cannot be applied in this case as it was not effective

until July 1, 1996, we find that the amendment was procedural,

not substantive.   It did not create a new right, but merely

expanded the remedy.    See Forbes v. Kenley, 227 Va. 55, 60, 314

S.E.2d 49, 52 (1984).   Moreover, while equitable distribution is

determined under the version of the statute in effect at the time

the matter was filed, child support is determined based upon the

current circumstances and under the current statutes.   "[T]he

statutory scheme established by Code §§ 20-107.2, -108, -108.1,

and -108.2, and related enactments, manifest a clear legislative

intent that the courts of this Commonwealth determine the issue

of child support with contemporaneity, in consideration of

prevailing circumstances and consistent with existing

guidelines."    Cooke v. Cooke, 23 Va. App. 60, 65, 474 S.E.2d 159,

161 (1996).    Father's argument that the court lacked authority to

order child support payable for the period during which the

petition was pending is without merit.

      Inclusion of Father's Assets in Support Determination

     In the previous appeal, we found that the trial court erred

"in failing to consider [father's] 'financial resources' as



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required by Code § 20-108.1(B)(11), as well as his actual income"

when determining the amount of child support under Code

§ 20-108.2.   L.C.S. v. S.A.S., 19 Va. App. 709, 718, 453 S.E.2d

580, 585 (1995).   The trial court failed to include annual

interest income from several large accounts owned by father.     In

this appeal, father contends that the trial court erred by

attributing to him income from those assets because mother

attached them for possible satisfaction of a judgment in a

related civil tort action filed on behalf of his son.
     Evidence of father's assets was produced at the July 1996

hearing, and incorporated as a whole without objection at the

January 30, 1997 hearing.   Father had two interest-bearing

accounts valued at approximately $178,000, which earned

approximately $416.94 per month in income.

     While mother attached these accounts in connection with the

pending tort claim she filed on behalf of the parties' son, the

record before us is unclear as to the status of the attachment

proceeding.   The record shows that in a hearing on July 2, 1996,

mother agreed that she would execute whatever documents necessary

to release the interest on the two accounts from the attachment

so that it could be applied to child support.   At a subsequent

hearing on January 30, 1997 in a colloquy with the court, father

represented that such release documents had not been signed by

mother.   The trial court observed that it had no authority to

order funds released in a law action over which it had no



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jurisdiction.   The court undoubtedly viewed the interest as

income to father and properly observed that the support payments

would become a judgment against father, to be satisfied from

whatever assets were available.    The trial court further stated

that father's lack of access to such funds might well be a valid

defense to any future claim of contempt for non-payment of

support.

     We view the court's reasoning to be that the attachment may

or may not be valid.    It represented a mere claim against those

assets and, in the absence of a showing that the attachment has

been decided adverse to father, the interest income should be

imputable to him.    On the record before us, we find no bar to the

consideration of such interest as income.

                    Determination of Child Support

     Father contends that the trial court failed to consider the

statutory factors and failed to set out in sufficient detail the

grounds for its deviation from the guideline amount of child

support.   We find both contentions without support in the record.

The trial court found father's monthly income to be $458, based

upon wages of $42 and interest income of $416.       "Gross income" as

defined in Code § 20-108.2
          shall mean all income from all sources, and
          shall include, but not be limited to, income
          from salaries, wages, commissions, royalties,
          bonuses, dividends, severance pay, pensions,
          interest, trust income, annuities, capital
          gains, social security benefits except as
          listed below, workers' compensation benefits,
          unemployment insurance benefits, disability
          insurance benefits, veterans' benefits,


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            spousal support, rental income, gifts, prizes
            or awards.


Code § 20-108.2(C) (emphasis added).   The trial court properly

included father's interest income from the two interest-bearing

accounts in its calculation of father's gross income.

       Furthermore, in compliance with the statute, the trial court

first calculated the amount of child support presumed to be

correct under the guidelines.   Code §§ 20-108.1(B), 20-108.2(A),

(B).   Then, in writing, the trial court found that a "deviation

from the guidelines is appropriate in light of the demonstrated

needs of the child and the inadequacy of the presumptive amount

to meet those needs."   The court set the amount of monthly child

support at $375.   We find no indication that the trial court

failed to follow the statutory requirements, failed to consider

the statutory factors, or abused its discretion in determining

the amount of the deviation.    See Richardson v. Richardson, 12

Va. App. 18, 21, 401 S.E.2d 894, 896 (1991).

       We find no merit in father's contention that the court's

limits on his discovery requests deprived him of a fair hearing

and due process of law.   Mother introduced evidence of her

current income and expenses.    Father, who was a practicing

attorney prior to his incarceration, cross-examined her on those

expenses.   The trial court considered father's arguments that

mother's expenses were inflated, but noted, as conceded by

father, that mother's income remained insufficient to cover the

expenses for her and the parties' child.   We find no evidence


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that father was deprived due process of law.




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                          Attorney's Fees

     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion.      See Graves v. Graves, 4 Va.

App. 326, 333, 357 S.E.2d 554, 558 (1987).     The key to a proper

award of counsel fees is reasonableness under all the

circumstances.   See McGinnis v. McGinnis, 1 Va. App. 272, 277,

338 S.E.2d 159, 162 (1985).   Mother submitted evidence that she

incurred an additional $2,000 in attorney's fees.     Contrary to

father's claim, we find no indication that these expenses were

the result of counsel's negligence or wastefulness.     Father had

assets, including escrowed funds from the sale of the parties'

real estate, with which to satisfy the payment.     We cannot say

that the award was unreasonable or that the trial judge abused

his discretion in making the award.
     Accordingly, the decision of the circuit court is affirmed.

                                                      Affirmed.




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