                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


GERALD JAMES MIATECH, JR.
                                                 MEMORANDUM OPINION *
v.   Record No. 1121-97-4                            PER CURIAM
                                                  NOVEMBER 10, 1997
MARY JEAN MIATECH


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       J. Howe Brown, Judge

           (Judy Dugger, on briefs), for appellant.
           (Carolyn Smith Motes; Anne Goodwin; Goodwin &
           Nelson, on brief), for appellee.



     Gerald James Miatech, Jr., (husband) appeals the decision of

the circuit court awarding spousal support to Mary Jean Miatech

(wife), distributing the parties' marital assets, and awarding

wife attorney's fees.   Husband contends that the trial court

erred by (1) imposing on husband the capital gains tax liability

from the sale of the marital residence; (2) requiring husband to

attempt to persuade the Internal Revenue Service to hold wife

harmless for any portion of that tax liability; (3) refusing to

credit husband for payments made to wife after the separation;

(4) finding that husband's $10,000 payment to retire outstanding

debt on a 1993 Honda automobile was a gift to wife; (5) imputing

income to husband when calculating spousal support; and

(6) awarding wife attorney's fees.   Upon reviewing the record and

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.

                        EQUITABLE DISTRIBUTION

     As the party seeking reversal, husband bears the burden to

demonstrate error by record proof.    "[D]ecisions 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).

                     CAPITAL GAINS TAX LIABILITY

     The parties sold their former marital residence in 1993.

Husband purchased a new residence in 1994 for an amount greater

than the selling price of the former marital residence.   Wife did

not purchase a home within two years of the sale.   At the time of

the hearing, it was unclear whether wife would be required to pay

federal tax, and the associated interest and penalties, on a

portion of the capital gains realized from the sale of the

marital residence.

     Husband contends that wife had access to the funds at all

times and was able to purchase a new home within the required

two-year period.   However, throughout the marriage and even after

the parties' separation, wife relied upon husband to prepare the

parties' tax returns.    On their 1993 joint federal income tax

return prepared by husband after their separation, it indicated



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that they would purchase a replacement residence within the

two-year period.   Wife testified that husband told her his

separate purchase of a new home in 1994 resolved any capital

gains liability.

     Code § 20-107.3(E)(9) authorizes the trial court to consider

the tax consequences to each party when determining the "amount

of any division or transfer of jointly owned marital property,

and the amount of any monetary award, the apportionment of

marital debts, and the method of payment . . . ."   The trial

court found that husband received the full benefit of the

rollover of the capital gains realized upon the sale of the

former marital residence.   Wife acted in reliance upon her

understanding that husband's purchase of his new home satisfied

the resulting capital gains tax liability.   The distribution of

the parties' assets would be significantly skewed if wife now

faced substantial interest and penalties on her portion of the

capital gains realized through that sale.    Therefore, we find no

error in the trial court's ruling that husband cooperate with

wife to resolve any federal tax consequences to her due to

husband's actions following the sale of the marital residence and

resulting capital gains and, if necessary, reimburse wife for any

capital gains tax and liability imposed upon her.
                     PAYMENTS AFTER SEPARATION

     Husband contends that the trial court erred when it refused

to credit him with all the payments he made to wife after the




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parties' separation.   In support of his contention, husband

asserts that wife fraudulently induced him to make these payments

pursuant to an agreement which the parties drafted but never

signed.   The trial court found, and the evidence documents, that

the parties agreed that certain specific payments to wife by

husband were an advance against the distribution of marital

assets.   Husband's April 16, 1996 letter to wife refers to two

advances in the amount of $4,000 and $2,000.   Wife did not

contest that husband made these advances.   Nothing indicates that

the monthly payments husband paid to wife were similarly agreed

to be advances against an ultimate distribution of marital

assets.   Husband's allegation that wife fraudulently induced him

to make payments is unsupported by the evidence.
     Husband agreed to pay wife $600 a month until the divorce

decree was entered.    Husband voluntarily increased the monthly

payments to $800 when wife's rent increased.   However, while the

support payments were made pursuant to an agreement between the

parties, rather than pursuant to a court's pendente lite order of

support, husband's obligation to support wife was not merely a

gratuitous act.   Husband had been the sole provider for most of

the marriage and remained the primary wage earner at the time of

separation.   Wife was entitled to continued support, not as a

gift from husband, but as his obligation.    See Code

§ 20-103(A)(i).   Therefore, we find no error in the trial court's

denial of credit to husband for the payments of support made to



                                  4
wife during the parties' separation.

                      PAYMENT OF AUTOMOBILE DEBT

     Husband also contends that the trial court erred when it

refused to credit his payment of $10,000 towards the purchase of

a 1993 Honda for wife as an advance against the distribution of

the parties' marital assets.    We find no error.   While husband

asserts that he relied upon the unsigned settlement agreement in

making the payment, the trial court noted that husband made the

payment several months after he knew that the agreement was not

going to be signed.    In his April 1996 letter, husband wrote that

"I intend to pay off the loan on the 1993 Honda tomorrow and am

therefore deducting your remaining portion of the joint costs,

namely Four Thousand Dollars ($4,000.00)."    Husband kept the two

vehicles owned by the parties at the time of separation.    The

trial court found that the payment for the car was in the nature

of support to wife, and that husband was not entitled to credit.

That finding is supported by the evidence.
            SPOUSAL SUPPORT AND IMPUTATION OF INCOME

     Husband contends that the trial court erred when it awarded

spousal support to wife and when it imputed income to him when

calculating the support amount. We disagree.
          In awarding spousal support, the chancellor
          must consider the relative needs and
          abilities of the parties. He is guided by
          the nine factors that are set forth in Code
          § 20-107.1. When the chancellor has given
          due consideration to these factors, his
          determination will not be disturbed on appeal
          except for a clear abuse of discretion.




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Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986).    It is apparent from the trial judge's opinion letter

that he considered the statutory factors before awarding wife

monthly spousal support in the amount of $400.    The judge noted

that husband had several undergraduate degrees and a

post-graduate degree and was seeking an additional master's

degree.    Wife graduated from high school.   Husband was the

primary wage earner throughout the marriage, and earned $80,000

in 1995 and $65,000 in 1996.    Wife was a full-time homemaker and

military wife until late in the marriage.     Wife earned $29,000 in

1996.    Both parties were forty-nine years old and in good health

at the time of the hearing, although husband received a 10%

disability reduction in his retirement pay for an undisclosed

reason.
        "Spouses entitled to support 'have the right to be

maintained in the manner to which they were accustomed during the

marriage, but their needs must be balanced against the other

spouse's financial ability to pay.'"     Stubblebine v. Stubblebine,

22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc).

Husband admitted that he earned $20,000 and was "underemployed,"

but testified that he felt no need to earn more money and only

sought intellectual, not monetary, satisfaction.    He wanted to

return to graduate school to obtain an additional master's

degree.    The trial court noted that, at age forty-nine, husband

could not retire while wife was in need of support.    Wife




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demonstrated a need for continued support and husband had the

earning capacity to provide support.       See id. at 710-11, 473

S.E.2d at 75-76.

     The evidence supports the trial court's decision to impute

income to husband of $40,000 and to award wife monthly spousal

support of $400.    Therefore, we find no error.

                            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).

     The evidence supports the trial court's finding that husband

had greater income and earning capacity than wife.      Based on the

number of issues involved and the respective abilities of the

parties to pay, we cannot say that the award of $6,000 in

attorney's fees was unreasonable or that the trial judge abused

his discretion in making the award.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                            Affirmed.




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