                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


ARTHUR J. LEHNER
                                           MEMORANDUM OPINION *
v.   Record No. 1445-98-2                      PER CURIAM
                                               MAY 18, 1999
MARY ELIZABETH HAILEY SAUNDERS LEHNER


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

           (McClanahan Ingles; Martin, Ingles & Ingles,
           on brief), for appellant.

           No brief for appellee.


     Arthur J. Lehner (husband) appeals the equitable

distribution judgment awarding certain property to Mary

Elizabeth Hailey Saunders Lehner (wife).   Husband contends that

the trial court erred:   (1) by failing to make a finding

regarding marital debt; (2) by awarding wife one-half of the

marital share of husband's individual retirement account (IRA)

when evidence indicated that funds were withdrawn and applied to

pay marital debt; (3) by failing to find that husband paid

marital debt from his separate assets and failing to credit

husband for payment of $47,250 of marital debt; and (4) by

deviating from husband's proposed findings of fact and

conclusions of law by awarding wife one-half of the marital


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
share of husband's IRA and one-half of the marital share of

husband's retirement plan.    Upon reviewing the record and

opening brief, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the judgment of the trial

court.     See Rule 5A:27.

        "Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it."     Srinivasan v. Srinivasan, 10 Va. App. 728, 732,

396 S.E.2d 675, 678 (1990).    "Unless it appears from the record

that the trial judge has not considered or has misapplied one of

the statutory mandates, this Court will not reverse on appeal."

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989).    "The burden is upon the appellant to provide us with a

record which substantiates the claim of error."     Jenkins v.

Winchester Dep't of Social Servs., 12 Va. App. 1178, 1185, 409

S.E.2d 16, 20 (1991).

        The record on review includes depositions, stipulations,

and a Statement of Facts, Testimony and Other Incidents of the

Case.    No hearing transcripts are included in the record.

        Husband submitted a Memorandum and Proposed Findings of

Fact and Conclusions of Law to the trial court prior to the

entry of the final decree of divorce.    Among the proposed




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findings of fact relevant to the issues raised on appeal were

the following:

          3. The parties' marital debt payments were
          made by [husband] and are identified on
          Exhibits 7 and 8.
          4. [Husband] made substantial additional
          payments from his separately owned assets
          toward payment of the parties’ marital debt.

In addition, husband asked the trial court to reach the

following conclusions of law in connection with the equitable

distribution of the parties' assets:

          3.  Pursuant to VA Code Ann. § 20-107.3 the
              Court order:
               a. [Wife] convey her interest in the
          parties' real estate in Remlik, Virginia to
          [husband], subject to his express promise to
          assume, pay when due, and hold [wife]
          harmless from the mortgage indebtedness
          thereon in favor of Southside Bank of
          Urbanna.
               b. That [husband] be granted as his
          separate property his tools, 19" Emerson
          T.V., Emerson VCR, Marine Salvage
          Consultants business and the 1979 Ford F-350
          he presently possesses.
               c. That [wife] not be entitled to any
          interest in [husband's] pension through the
          Philip Morris Retirement Plan.
               d. That [wife] be granted as her
          separate property the 1986 Chrysler, 1988
          Suzuki, 1987 Lincoln and house contents from
          Twain Court she presently possesses.

     Following the submission of this memorandum, the parties

stipulated that the marital share of husband's NationsBank IRA

was $30,750 on July 1, 1994.   They also stipulated that a fifty

percent portion of the marital share of husband's Philip Morris

retirement plan was $338.21 per month, after taxes.   In a letter


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opinion issued October 14, 1997, the trial court indicated it

would "grant the Final Decree as originally prepared by

[husband]," but award wife $30,750 as her share of husband's

IRA.   Husband filed a Motion to Rehear, challenging the court’s

proposed award, and stating, "WHEREFORE, the [husband] prays

that this Court modify its ruling by awarding [wife] $15,375.00

of the [husband's] profit sharing account."

       The trial court entered the final decree on June 1, 1998.

In the final decree, the trial court found that husband's

Exhibit 11 "accurately describes the parties' marital assets

remaining subject to equitable distribution," and adopted

husband's proposed findings of fact and conclusions of law.

However, the trial court awarded wife a share of husband's

Philip Morris retirement plan and one-half of the marital share

of his IRA, as set out in the parties' stipulations.   Husband

executed the decree with the objection "Seen and objected to as

the [husband] proved by the evidence presented that the marital

share of the Nationsbank individual retirement plan account was

used to pay marital debt."

                   Finding Regarding Marital Debt

       The parties presented evidence concerning marital assets

and debts.   Husband contended that he used separate property to

pay off marital debt incurred as a result of the operation and

failure of a convenience store.   Wife contended that, while



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husband spent certain funds on the convenience store after the

parties separated, he was not able to prove his alleged losses.

Evidence established that the parties were joint defendants in

ongoing litigation concerning the failed convenience store.

     While husband listed funds from which he withdrew money, he

failed to calculate the value of the outstanding marital debt

for which the trial court denied him credit.   He failed to trace

his withdrawals to his alleged losses or to account for amounts

received from insurance or other credits.

           [L]itigants have the burden to present
           evidence sufficient for the court to
           discharge its duty. When the party with the
           burden of proof on an issue fails for lack
           of proof, he cannot prevail on that
           question. "The burden is always on the
           parties to present sufficient evidence to
           provide the basis on which a proper
           determination can be made . . . ."

Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550

(1987) (citation omitted).   The trial court was not required to

make a finding as to marital debt if husband failed to prove his

claims.   We cannot say that the trial court erred by failing to

make such a finding concerning marital debt.

                       Award to Wife of IRA

     In his Motion to Rehear, husband asked the trial court to

"modify its ruling by awarding [wife] $15,375.00 of the

[husband’s] profit sharing account."   The court awarded wife

this amount, "less any taxes, penalties or fees associated with



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any distribution to the [wife]."    Having received what he

sought, husband cannot now complain that the trial court erred

in granting his request.

                Credit to Husband for Marital Debt

     Husband contends that the trial court erred by failing to

ascertain the amount of marital debt.     In his proposed findings

of fact, husband identified no amount of marital debt for which

he sought credit.   He listed sources of funds from which he made

withdrawals, but failed to trace with specificity his marital

debt claims.   The trial court was not required to ascertain an

amount not ascertainable by the evidence.      See id.

         Adoption of Husband's Proposed Findings of Fact

     Husband contends that the trial court, having adopted his

proposed findings of fact and conclusions of law, erred by

entering an order awarding wife a share of his IRA and pension

plan despite his payment of marital debt.     For the reasons

previously stated, this contention lacks merit.     Moreover,

husband preserved for appeal no objection to wife’s award from

the marital share of his pension.      See Rule 5A:18.

     Accordingly, the judgment of the trial court is affirmed.

                                                           Affirmed.




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