                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


STEVEN EDWARD MITCHELL
                                                 MEMORANDUM OPINION *
v.   Record No. 2283-97-3                            PER CURIAM
                                                   APRIL 14, 1998
ELIZABETH JANE THOMPSON MITCHELL


            FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                    George E. Honts, III, Judge

           (Burton L. Albert, on brief), for appellant.
           (Richard Lee Lawrence; Sam Garrison, on
           brief), for appellee.



     Steven Edward Mitchell (husband) appeals the decision of the

circuit court awarding spousal support to Elizabeth Jane Thompson

Mitchell (wife) and deciding other issues.   Husband contends that

the trial court erred by (1) failing to impute income to wife in

connection with its determination of spousal support; (2) making

findings of fact which were not supported by evidence; (3)

including non-marital assets as part of the marital estate; (4)

valuing assets as of a date other than the equitable distribution

hearing without a motion from either party seeking an alternative

valuation date; (5) awarding wife the maximum marital share of

husband's 401(k) pension plan; and (6) considering matters

outside the record.   Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Accordingly, we summarily affirm the decision of the trial court.

 See Rule 5A:27.

                          Spousal Support

     Husband contends that the trial court erred by failing to

impute income to wife before awarding her spousal support.

Husband also challenges the trial court's finding that wife was

depressed due to the break-up of the marriage and his adultery.

     A party seeking spousal support is obligated to earn as much

as reasonably possible in order to reduce the amount of support

needed.   See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396

S.E.2d 675, 679 (1990).   In keeping with this principle, a court

may, under appropriate circumstances, impute income to a party

who seeks spousal or child support.    See id.   However, the

decision to impute income is left to the discretion of the trial

court.

     The evidence established that, at the time of the hearing,

wife suffered from major depression.   Her doctor opined that she

was disabled from working because she had trouble focusing and

concentrating.   While wife was trained as a nurse and had earned

$30,000 per year in the past, she had not earned that amount in

several years prior to the parties' separation.    Wife's earnings

from selling cosmetics had been minimal.

     The trial court found that wife had a demonstrable ability

to earn at least $20,000 per year as a nurse, but that she was

unable presently to work full-time.    The trial court set the



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matter for review in six months.       The trial court's decision was

based upon credible evidence, i.e., her doctor's opinion, and we

find no abuse of discretion in its refusal to impute income to

wife under these circumstances.

           Findings of Fact Not Supported By Evidence

     Husband contends that the trial court committed reversible

error in its final decree when it corrected an error made in its

letter opinion.   A court speaks only through its written orders.
 See Waterfront Marine Construction, Inc. v. North End 49ers, 251

Va. 417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996); Cunningham v.

Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964).

     Pursuant to husband's motion to reconsider, the trial court

lowered the value of the parties' personal property to eliminate

the double inclusion of a $7,000 tractor.      Evidence supports the

trial court's adjustment.   Husband admits that the value set out

in the final decree was proper and that he incurred no damage.

Therefore, this argument is without merit.
            Inclusion of Assets in the Marital Estate

     Husband also challenges the court's inclusion in the marital

estate of $21,683 out of a total value of $43,683, which arose

from a stock option exercised by husband in April 1994.      Husband

contended that the net proceeds of this transaction amounted to

$22,000, all of which went towards the marital residence, and

that no asset worth $21,683 existed at the date of separation or

of the hearing.




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     The trial court's final decree does not include the amount

challenged by husband.    Therefore, husband's contention is

without merit.

                      Alternative Valuation Date

     Husband contends that the trial court erred by valuing a

KEMBA Credit Union marital account titled in husband's name as of

the date of separation.    The account had no remaining funds as of

the date of the hearing.    Neither party filed a motion to value

the account as of a date different from the hearing date.      See

Code § 20-107.3(A).

     As the party last in control of the KEMBA Credit Union

funds, husband bore the burden to prove by a preponderance of the

evidence that he did not dissipate those funds.    See Clements v.

Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990).

Husband testified that he transferred the funds into a checking

account and began to use the funds to pay various expenses,

including the mortgage and spousal support.    However, the record

contains no other evidence indicating how these marital funds

were used.   Husband did not provide documentary evidence to

support his testimony that he used these funds to pay living

expenses.    The trial court noted that it found husband to be

"less than forthcoming in his oral testimony."

     When determining the amount of a monetary award, the court

may consider which party benefitted from the dissipation of

marital funds.    See Booth v. Booth, 7 Va. App. 22, 27-28, 371




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S.E.2d 569, 572-73 (1988).   "[E]quity can only be accomplished if

the party who last had the funds is held accountable for them."

Id. at 28, 371 S.E.2d at 573.    The trial court is not required to

quantify what weight it gives to the statutory factors.     See id.

     Based upon the evidence and the trial court's credibility

determination, we cannot say that the trial court committed

reversible error by including in the value of the marital estate

the value of the KEMBA account as of the date of separation.

Husband admitted spending the funds, and failed to establish by

any credible evidence that the funds were used for a legitimate

purpose.
                          Share of 401(k)

     Husband contends that the trial court erred by awarding wife

the maximum share of his 401(k) pension authorized by Code

§ 20-107.3.   Husband admits that the trial court indicated that

it considered the statutory factors, and a review of its letter

opinion demonstrates that it did consider the factors.

     Code § 20-107.3(E)(5) authorizes the trial court to consider

"[t]he circumstances and factors which contributed to the

dissolution of the marriage, specifically including any ground

for divorce under the provisions of subdivisions (1) [adultery],

(3) or (6) of § 20-91 . . . ."   The trial court found that

husband's post-separation adultery was the cause of the parties'

divorce.   The court noted that husband's adultery occurred

"within hours or days of his departure from the marital home"



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with a woman to whom he admitted he had an emotional attachment

even before the parties separated.   The court also found that the

separation was disabling for wife, who incurred over $13,000 in

medical expenses as a result of her emotional problems resulting

from the separation.   The court was entitled to consider

husband's adultery and its effect on the marital partnership in

reaching its equitable distribution decision.     See O'Loughlin v.

O'Loughlin, 20 Va. App. 522, 527-28, 458 S.E.2d 323, 325-26

(1995).
     The trial court found that both parties contributed

monetarily and non-monetarily to the marriage.    Wife withdrew all

funds held in her 401(k) plan to purchase a new car which husband

retained after separation.   Wife also contributed $30,000 towards

the purchase of the marital residence.   The parties were married

for over eleven years.   We find no error in the trial court's

election to award wife her statutory share of husband's 401(k)

benefits.

     We also reject husband's contention that the division of the

marital estate was a gross abuse of discretion.    Wife received

approximately sixty-two percent of the marital estate.

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 (1986).      Under

the facts of this case, we cannot say the trial court abused its

discretion in making its equitable distribution award.



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              Considering Matters Outside the Record

     Finally, husband contends that the trial court erred by

considering disparaging remarks about the trial judge made by

husband's counsel in a letter to wife's counsel.   Nothing in the

record before us supports husband's contention that the trial

court referred to this letter.   "The trial court's judgment is

presumed to be correct, and 'the burden is on the appellant to

present to us a sufficient record from which we can determine

whether the lower court has erred.'"   Twardy v. Twardy, 14 Va.

App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc) (citation

omitted).   Nothing in the record before us supports husband's

contention.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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