                    COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia

JUDITH ANN SNYDER

v.       Record No. 2147-94-4           MEMORANDUM OPINION * BY
                                     JUDGE JOHANNA L. FITZPATRICK
RONALD LEE SNYDER                            JUNE 20, 1995


          FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      Richard B. Potter, Judge

     Stephen M. Farmer (Farmer & Stevens, on briefs), for
     appellant.
     Tracy C. Hudson (Smith, Hudson, Hammond & Alston, P.C., on
     brief), for appellee.


     In this domestic appeal, Judith Ann Snyder (wife) argues

that the trial court erred in:   (1) awarding her only thirty

percent of the marital share of Ronald Lee Snyder's (husband)

pension; (2) accepting husband's value of the parties' New York

summer property instead of her expert's value; (3) finding that

wife failed to establish by clear and convincing evidence that

husband committed adultery; (4) classifying two bank accounts for

the benefit of the parties' children as marital; (5) failing to

award wife a divorce based on grounds of adultery and/or

desertion; (6) ordering wife to pay the second mortgage on the

parties' Virginia property when husband withdrew $8,000 from the

home equity line of credit; and (7) awarding husband his

attorney's fees for the proceedings before a commissioner in

chancery on adultery and desertion as grounds for divorce.   We
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
affirm on all issues except the $8,000 withdrawal and attorney's

fees.
                              BACKGROUND

        The parties were married on April 3, 1971 and had two

children.    They separated on July 16, 1992.   Husband filed for

divorce on October 7, 1992 on constructive desertion grounds and

later, on July 23, 1993, amended his complaint to allege grounds

of separation for more than one year pursuant to Code
§ 20-91(9)(a).    On October 23, 1992, wife filed a cross-complaint

for divorce on grounds of adultery and desertion.

        On November 18, 1992, the matter was referred to a

commissioner in chancery to establish the grounds of divorce.       In

a June 7, 1994 report, the commissioner found that wife had

adequately proved her grounds of adultery and desertion by

husband, and alternatively, that husband was entitled to a

divorce on grounds of separation for more than one year.     Husband

excepted to the commissioner's report, arguing that wife failed

to prove adultery by clear and convincing evidence.    In a July 6,

1994 order, the trial court sustained the exceptions and rejected

the commissioner's finding of adultery.

        On August 30 and September 1, 1994, the trial court held

hearings on the issues of equitable distribution, custody,

support, and attorney's fees.    In the September 30, 1994 final

decree, the court awarded husband a divorce based on separation

for more than one year.    Wife received the Virginia marital home,




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with a net equity of $76,200; a monetary award of $18,000; thirty

percent of the marital share of husband's state government

pension; two bank accounts opened for the benefit of the parties'

children; and spousal and child support.    The court awarded

husband the parties' New York summer property; seventy percent of

his government pension; and $3,690 in attorney's fees.
                          DIVISION OF PENSION

        We hold that the trial court did not abuse its discretion in

awarding wife thirty percent of the marital share of husband's

state government pension.    Virginia's equitable distribution

scheme does not provide "a statutory presumption of equal

distribution."     Papuchis v. Papuchis, 2 Va. App. 130, 132, 341

S.E.2d 829, 830-31 (1986).    "Moreover, in reviewing an equitable

distribution award, we rely heavily on the trial judge's

discretion in weighing the particular circumstances of each

case."     Aster v. Gross, 7 Va. App. 1, 7-8, 371 S.E.2d 833, 837

(1988) (upholding a sixty-five/thirty-five percent pension

division).    In light of husband's substantial monetary

contributions to the marriage, the seventy/thirty percent

division in this case is not an abuse of discretion.
                    VALUATION OF NEW YORK PROPERTY

        Wife next argues that the trial court erred in refusing to

accept her expert's valuation of the New York property.

        At the equitable distribution hearing, husband testified

that:    (1) the home on the New York property was unfinished; (2)



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it would cost $17,000 to complete the home; and (3) the property

was worth $58,000.    Wife called a real estate expert, who

testified that the property was worth $82,000.    During cross-

examination of wife's expert, husband established that the expert

made errors in his report and was not as familiar with the New

York property or comparable properties as he had testified on

direct examination.    The trial court accepted husband's value of

the property.
     It is the chancellor's "province alone, as the finder of

fact, to assess the credibility of the witnesses and the

probative value to be given their testimony."     Richardson v.

Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991).

Although expert testimony may be the preferable method for

valuing marital property, "the finder of fact is not required to

accept as conclusive the opinion of an expert."     Lassen v.

Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474 (1989).      We find

no abuse of discretion in this case.     Husband's cross-examination

of wife's expert established the expert's unfamiliarity with the

subject property, and the trial judge was entitled to accept

husband's valuation.
                              ADULTERY

     Wife also contends that the trial court erred in rejecting

the commissioner's finding of adultery.

     During hearings before the commissioner, both husband and

his alleged paramour denied wife's allegations of adultery.       The



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evidence established that:   (1) husband and the woman, a nurse,

met at a hospital when his father became terminally ill; (2) he

and the woman became friends; (3) he subleased part of her house;

(4) he hired the woman for a job position at his school; (5) he

called the woman several times to talk about his father's death;

and (6) wife's investigator saw one brief kiss between husband

and the woman.

      "Although a commissioner's report is not entitled to the

weight given to a jury's verdict, the report's findings should be

sustained by a trial court unless the court concludes that they

are not supported by the evidence."     Seemann v. Seemann, 233 Va.

290, 293, 355 S.E.2d 884, 886 (1987).    "One who alleges adultery

has the burden of proving it by clear and convincing evidence."

Id.   "'While a court's judgment cannot be based upon speculation,

conjecture, surmise, or suspicion, adultery does not have to be

proven beyond a reasonable doubt.'"     Gamer v. Gamer, 16 Va. App.

335, 339, 429 S.E.2d 618, 622 (1993) (quoting Coe v. Coe, 225 Va.

616, 622, 303 S.E.2d 923, 927 (1983)).

      In this case, the trial court found that wife's evidence did

not establish adultery by clear and convincing evidence even

though the judge recognized husband's "close personal

relationship."   Both husband and the woman denied having a sexual

relationship, and wife's investigator only saw one brief kiss.

We hold that the trial judge correctly determined that the

commissioner's finding of adultery was not established by clear



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and convincing evidence.


                    CLASSIFICATION OF PROPERTY

     Wife further argues that the trial court erred in

classifying two bank accounts opened for the benefit of the

parties' children as marital property.

     During the marriage, the parties opened two jointly-titled

savings accounts at Signet Bank for the benefit of their

children.   After the parties separated, wife removed the funds

and deposited them in a separate account.      Husband's evidence

established the value of the accounts at the date of separation

as $3,856 and $2,726.   The trial court determined that the

accounts were marital property and awarded them to wife.
     The accounts were established during the marriage and were

jointly titled to the parties at the time of the separation, and

as such, the property was marital.      "Code § 20-107.3 does not

authorize the court to make an equitable distribution of marital

property to a non-party."   Woolley v. Woolley, 3 Va. App. 337,

341, 349 S.E.2d 422, 425 (1986).       We hold that the trial court

did not err in finding the bank accounts to be marital.      Although

the court must consider the rights and equities of the parties in

determining how to equitably divide marital property, including

how they may have acquired or held the property, the court had no

authority to award the bank accounts to the children.
                        GROUNDS OF DIVORCE




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     Wife asserts that the trial court erred in failing to award

her a divorce based on either desertion or adultery.

     "Where dual or multiple grounds for divorce exist, the trial

judge can use his sound discretion to select the grounds upon

which he will grant the divorce."    Lassen v. Lassen, 8 Va. App.

502, 505, 383 S.E.2d 471, 473 (1989).   Wife failed to establish

adultery by clear and convincing evidence, and the trial judge

was not required to grant wife a divorce on grounds of desertion.
                LINE OF CREDIT ON VIRGINIA PROPERTY

     Wife argues that the trial court erred in requiring her to

pay the entire second mortgage (home equity line of credit) on

the parties' marital home because husband created debt by

withdrawing $8,000 from the line of credit.   We agree.

     On October 30, 1992, a mutual restraining order was entered

that prohibited the parties from making withdrawals from marital

assets while the divorce proceeding was pending.   The order also

required husband to redeposit $35,000 that he had earlier

withdrawn from the parties' home equity line of credit on the

marital residence in Virginia.   On March 23, 1993, husband

withdrew an additional $8,000 against that line of credit, and an

order entered August 27, 1993 held husband in contempt for that

withdrawal.   In the final decree, the trial court made no

findings regarding the $8,000 withdrawal.

     "Although we do not require a trial judge to quantify or

detail his or her reasoning, where the court fails to make



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findings or to state any basis for reaching its conclusion . . .,

the reviewing court is hindered in its task."   Via v. Via, 14 Va.

App. 868, 872, 419 S.E.2d 431, 434 (1992).   Because wife was

awarded the marital home with the requirement that she pay all

liens, she was required to repay $8,000 in debt that husband

established after the separation and for which he received $8,000

in assets.   We cannot tell from this record whether the trial

court considered this amount in arriving at its equitable

distribution award.
                          ATTORNEY'S FEES

     Lastly, wife contends that the trial court erred in awarding

husband $3,690 in attorney's fees.

     The trial court found that husband's close relationship with

his alleged paramour had an impact on the marriage and family:
          [H]usband did leave the home and entered into
          a close personal relationship with someone
          other than his wife. And that action clearly
          has contributed to the dissolution of this
          marriage and also has had an economic impact
          on this family. . . . [T]he evidence
          presented does not rise to a finding of
          adultery . . . .


The judge awarded husband $3,690 for attorney's fees incurred in

defending against wife's allegations of adultery.   The evidence

at trial established that wife's income was $1,100 per month and

husband's income was $5,800 per month.

     "An award of attorney fees is discretionary with the court

after considering the circumstances and equities of the entire

case and is reviewable only for an abuse of discretion."    Gamer



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v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).       "The

key to a proper award of counsel fees is reasonableness under all

of the circumstances revealed by the record."     Ellington v.

Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631 (1989).

     By awarding husband all attorney's fees for the proceedings

before the commissioner, the judge was essentially punishing wife

for pursuing the adultery grounds.    However, the commissioner

found that wife had adequately proved husband's adultery and the

allegations were not frivolous.   Additionally, the trial court

specifically found that husband's close relationship led to the

dissolution of the marriage and had an economic impact on the

family.   Under these circumstances, where a husband's monthly

income is significantly higher than his wife's and the wife's

pursuit of adultery grounds is not frivolous, it is an abuse of

discretion to award the husband attorney's fees for defending

against adultery charges.
     Thus, the decision of the trial court is affirmed as to all

issues except the $8,000 withdrawal and attorney's fees.

Accordingly, we reverse and remand for clarification of the trial

court's treatment of husband's withdrawal from the line of

credit.
                                                Affirmed in part,
                                                reversed in part,
                                                and remanded.




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