                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              JENNIFER HUTCHINS ALLEN
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0562-16-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                 FEBRUARY 28, 2017
              GEOFFREY B. ALLEN


                                    FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                                Burke F. McCahill, Judge

                                Thomas K. Plofchan (Jennifer M. Guida; Westlake Legal Group, on
                                briefs), for appellant.

                                David L. Ginsberg (Anne B. Robinson; Cooper Ginsberg Gray,
                                PLLC, on brief), for appellee.


                      Jennifer H. Allen (wife) appeals a final decree of divorce. Wife argues that the circuit court

              erred by (1) “classifying as hybrid property, post-separation payments received by Geoffrey

              Allen [husband] in connection with the pre-separation sale of ZipList, LLC [ZipList] stock, a

              marital property;” (2) “applying a coverture fraction to the ZipList proceeds because (a) they

              were clearly marital as a matter of contract and (b) they were not a retirement asset, and therefore

              not subject to the coverture fraction;” (3) “not finding an alternate valuation date for the ZipList

              proceeds, despite the Court’s finding that marital assets were comingled with separate funds and

              [husband] did not trace those assets;” (4) “not finding waste by [husband] of the ZipList proceeds,

              despite the Court’s finding that marital assets were comingled with separate funds and [husband] did

              not trace those assets;” (5) “determining that the Stock Purchase Agreement included a ‘carve out’

              for [husband], despite the absence of any terms to that effect in the Stock Purchase Agreement

              related to the ZipList sale;” (6) “allowing Beth Eason to testify regarding the ZipList sale and a

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
related demonstrative spreadsheet, as Ms. Eason had no personal knowledge of the specific details of

the sale or of the facts, figures, and formulas the spreadsheet was based on;” (7) “relying on

Ms. Eason’s testimony when determining the character of the ZipList sale proceeds;” (8) “giving

[husband] credit for payments on marital debt without receiving any evidence to establish that

[husband] paid the marital debt with separate funds;” (9) “distributing the marital property by

awarding [husband] a significantly larger portion of the marital estate than [wife], despite the Court

finding that a marriage is a partnership;” (10) “failing to award spousal support based on [wife’s]

needs established by the parties’ standard of living to which [wife] was accustomed to during the

marriage, and [husband’s] ability to pay;” (11) “determining that [wife] knowingly, intelligently,

and voluntarily waived her Constitutionally-guaranteed right against self-incrimination by [wife’s]

answering a general question regarding faithfulness and dutifulness;” (12) “requiring [wife] to

respond to questions regarding [wife’s] sexual relationship with another person despite [wife’s]

invocation of her Constitutionally-guaranteed right against self-incrimination;” and

(13) “considering [wife’s] alleged adultery when making its equitable distribution and spousal

support awards.” For the reasons stated below, we find no error and affirm the decision of the trial

court.

                                          BACKGROUND

         “When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

         Husband and wife married on August 28, 1999, and one child was born of the marriage in

2004. In late 2008 and early 2009, husband developed the concept for ZipList, a mobile

application that allowed users to add recipe ingredients to a shopping list. In 2009, he attracted

investors for the company, and in 2010, he launched ZipList.


                                                 - 2 - 
       On April 2, 2012, husband sold ZipList to Advance Magazine Publishers (Conde Nast).

The terms of the sale were specified in a Stock Purchase Agreement (SPA). Pursuant to the

terms of the SPA, husband received payments for the sale of his stock at the closing in 2012 and

on the anniversary of the sale in 2013, 2014, and 2015. As part of the sale, husband entered into

an employment agreement with Conde Nast, for which he was separately compensated, and he

agreed not to compete with Conde Nast or solicit employees. He also served as ZipList’s

Sellers’ Representative. Husband satisfied the majority of these conditions after the parties

separated on April 15, 2013.

       Subsequently, the parties executed a separation agreement in which they agreed that

either party could seek a divorce on a no-fault basis only and also executed a custody and

visitation agreement. After wife filed a complaint for divorce, the parties entered into a consent

pendente lite order, which stated, in pertinent part, that husband agreed to pay wife $7,000 per

month for spousal support. On March 19, 2015, wife filed a motion for an alternate valuation

date for the ZipList stock payments received after separation.

       In the course of a four-day hearing beginning on April 7, continuing on August 25 and

26, 2015, and concluding on February 11, 2016, the parties presented evidence and argument

relating to equitable distribution, spousal support, and attorney’s fees. On February 22, 2016, the

circuit court issued its ruling from the bench in which it classified all the property, including the

ZipList stock payments, declaring them to be hybrid property, and used a coverture fraction to

determine the marital share of the ZipList stock proceeds. It valued and then distributed all the

property after considering the Code § 20-107.3(E) factors. The circuit court awarded wife

$3,400 per month in spousal support and $25,000 in attorney’s fees and costs. On March 4,

2016, the circuit court entered the final decree of divorce, and this appeal followed.




                                                 - 3 - 
                                             ANALYSIS

                          I. Classification of the Stock Purchase Proceeds

        On appeal, “decisions 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.” Wright v. Wright, 61 Va. App. 432, 450, 737 S.E.2d 519, 527 (2013) (quoting

McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994)). “Because the

trial court’s classification of property is a finding of fact, that classification will not be reversed

on appeal unless it is plainly wrong or without evidence to support it.” Id. at 451, 737 S.E.2d at

528 (quoting Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005)).

        Wife contends the circuit court erred in classifying the ZipList stock purchase proceeds

as hybrid and in applying a coverture fraction to determine which portion of the proceeds was

marital. Wife argues that, despite the extended payments of the ZipList proceeds of sale over

several years, the proceeds were marital property because husband created ZipList and sold it

during the marriage. Husband contends the circuit court correctly classified the ZipList deferred

payments based on the premise that the portion earned during the marriage constituted marital

property and the portion earned post-separation constituted his separate property.

        Husband was a shareholder and key employee of ZipList, which he developed in late

2008 and early 2009. He built the product, raised the needed capital, marketed the business, and

recruited the ZipList team.

        ZipList was sold to Conde Nast in 2012. Husband’s involvement in the sales process

included courting and negotiating with multiple possible buyers, negotiating the stock sales price

as well as the terms of sale, and dealing with the legal, technological, and investment issues in

preparation for the sale. Throughout the process, husband continued to work on building the

company and managing his team.

                                                  - 4 - 
       The closing for the ZipList sale was held on April 2, 2012. Conde Nast agreed to pay

fixed sums to husband in exchange for his ZipList shares. The sale was structured to provide

payment of a portion of the agreed purchase price for the stock at the closing of the sale, and

deferred payments for the remaining portions of the purchase price.1 The SPA required the

husband to be employed “on the date that a Sellers Deferred Purchase Price and an Employee

Deferred Purchase Price payment is to be made in order to qualify to receive [his] share of such

payments;” otherwise, the payments would have been forfeited and Conde Nast would have had

no obligation to make those payments to any other person.2 The SPA also contained provisions

against competition and against solicitation of employees.3



       1
          The Employee Shareholders Deferred Purchase Price is defined in the SPA as “the
amounts payable to the Employee Shareholders on the first, second, and third anniversary of the
Closing pursuant to Sections 2.01(b)(ii) (iii)and (iv) of this Agreement.” Annex II of the SPA
lists the payment schedule for all of the sellers, including the outside shareholders and the
employee shareholders. Annex III of the SPA lists the schedule for additional payments made to
the employee shareholders. Husband was an employee shareholder.
       2
           Section 2.03, titled Employee Shareholder Payments, provides:

                Notwithstanding anything to the contrary contained herein, unless
                an Employee Shareholder’s employment is terminated by the
                Company or Purchaser without Cause or such Person resigns from
                the Company or Purchaser for Good Reason, dies or becomes
                permanently disabled, that Employee Shareholder must be
                employed by the Company or Purchaser on the date that a Sellers
                Deferred Purchase Price and an Employee Deferred Purchase Price
                payment is to be made in order to qualify to receive that Person’s
                share of such payments. If an Employee Shareholder is not
                eligible to receive a Sellers Deferred Purchase Price payment and
                Employee Shareholder Deferred Purchase Price payment by reason
                of having ceased to be employed by the Company or Purchaser
                other than for the reasons specified in the preceding sentence, then
                the payments that would have been made to that Employee
                Shareholder shall be forfeited, and Purchaser shall have no further
                obligation to make those payments to any Person.
 
       3
         A violation of the SPA’s non-compete clause does not provide for forfeiture of the
deferred payment of the Employee Shareholder Deferred Purchase Price.
                                            - 5 - 
       At the closing, which occurred prior to the parties’ separation, husband was contractually

obligated to convey, transfer, assign, and deliver his shares to Conde Nast, and Conde Nast was

obligated to purchase husband’s shares. The aggregate purchase price for the stock sale was

determined and set in the SPA, as were the times for the agreed deferred distribution of the

payment. The aggregate price was comprised of a pro rata share of husband’s capital stock in the

business and a management carve out.

       Although the book value of ZipList at the time of the sale was “essentially negative

$1,996,442.21,” the agreed purchase price at the time of the sale was set at $12,194,193.71.

Asked to explain how he was able to obtain over $12 million from Conde Nast to purchase

ZipList when it had a negative value of almost $2 million, husband responded,

               [T]his [differential in book value and sales price] is incredibly
               common. Almost the rule, not the exception in startup acquisitions
               of technology companies, have a history of negative earnings.
               They have forecast of future negative earnings. What they have is
               they have potential. They’ve got a strong team. They’ve got an
               underlying business plan. And what happens is that a company
               will look at the ability of the team, whether they believe or not in
               the core business model and the future productions, and they bet on
               the team to realize that and they’re betting that they’re paying for
               [that].

       Husband testified he received a manager’s carve out as a part of the agreed purchase

price. He explained that a management carve out is “almost the rule and not the exception” in

such transactions and explained its purpose, saying

               what it’s for is when an acquiring company believes that your
               underlying stock position is insufficient to keep you around for a
               period of time. So what carveout [sic] means is they go back to the
               investors and they carveout [sic] a portion of what they would pay
               the stock and then they would put it in long-term compensation as
               an incentive to keep you around.

       Husband’s management carve out was also addressed, over objection, by Beth Ann

Eason, a Conde Nast employee, described as “the lead business person” in charge of the

                                               - 6 - 
acquisition of ZipList. She initially contacted husband about ZipList and brought the idea of

acquiring ZipList to the management at Conde Nast to grow its business.

       Eason was involved in the discussions for endorsing the purchase price to be offered

husband. According to Eason, husband received “more compensation” under the SPA than other

shareholders who had identical stock options because Conde Nast wanted to make sure husband

was retained for three years of employment as he was considered “the most critical employee” of

ZipList. She testified that husband’s skills and experience were important considerations in

Conde Nast’s decision to acquire ZipList. Eason stated, “It was critical that we retained

[husband] and, therefore, we put the retention payments to scale up and grow over time to make

sure that he was retained for the full three years of employment.” She explained the carve out as

“a means of retaining employees. It’s a payment system that gives employees above and beyond

what they would be initially receiving through their stock.”

       Eason further explained the importance of the non-compete provision that was made part

of the SPA. She stated, “It was important to us that [husband] not be able to compete in any way

with the company that we were buying because it would inhibit our ability to achieve the

effective results that we were aiming for.”

       Eason also testified the stock purchase money husband received for his shares was not the

same money he received under his employment contract, which carried an annual base salary of

$325,000 with a potential annual performance bonus of $50,000.

       After examining the terms of the SPA, the circuit court concluded that the stock

payments were hybrid property, noting:

               There has to be consideration . . . of not only the marital effort that
               was contributed in the creation of this stock during the marriage
               that was exchanged on April 2, 2012, but also the marital effort in
               the form of the husband’s performance of the noncompete and his
               employment contract up to the date of the separation on April 15,
               2013 [as well as after the date of separation]. . . .
                                                - 7 - 
       Citing the holding in Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463 (1993), the circuit

court further noted the economic partnership that the Allens’ marriage established ceased on the

date of separation and found the payments by Conde Nast to be made after the parties’ separation

were part marital and part separate.

       Viewing the SPA as a deferred compensation plan and considering the need to “capture

the marital and nonmarital component of an asset,” the circuit court applied a coverture fraction

to determine the marital portion of each payment. The numerator of the coverture fraction the

circuit court applied was comprised of the number of days from the date ZipList was founded to

the date of the parties’ separation. The denominator of the coverture fraction was comprised of

the number of days from the date ZipList was founded to the date of the final payout.  Based on

that formula, the circuit court determined the marital component of the deferred payments and

held that “about 73 percent of this asset is marital.”

                    A. Court Reliance on Beth Eason’s Testimony Was Not Error

       Wife argues that the circuit court erred in allowing Beth Eason to testify about the

ZipList sale and a carve out provision for husband and relying on her testimony in reaching its

classification of the property as hybrid. We turn first to this evidentiary issue and find no error.

       Contrary to wife’s arguments, Eason was qualified to testify about Conde Nast’s

purchase of ZipList. Eason was a Conde Nast employee and “the lead business person” in

charge of the acquisition of ZipList. She initially contacted husband about the idea of a sale and

brought the idea of acquiring ZipList to Conde Nast “in order to grow its business.” She was

involved in the discussions about the proposed purchase price of ZipList. She was familiar with

the terms of the sale and with the use and application of a manager’s carve out as “a means of

retaining employees,” describing it as “a payment system that gives employees above and




                                                 - 8 - 
beyond what they would be initially receiving through their stock.” She was also familiar with

the husband’s employment agreement with Conde Nast.

       We find the circuit court did not err in allowing Eason to testify about the SPA, the

purchase price, and manager’s carve out, as well as husband’s employment agreement. Since the

circuit court had the opportunity to see and hear the witnesses, it could determine the weight to

place on Eason’s testimony. “[T]he credibility of witnesses and the weight to be accorded their

testimony is a matter exclusively within the province of the trier of fact.” Yopp v. Hodges, 43

Va. App. 427, 439, 598 S.E.2d 760, 766 (2004). Accordingly, the circuit court did not err in

relying on Eason’s testimony for information about the sale of ZipList.

              B. The Court Did Not Err in Classifying the Property as Hybrid and
            Applying a Coverture Fraction to Determine Which Portion Was Marital

       Wife argues that, despite the payments being spread over several years, the ZipList

proceeds were marital property because husband created ZipList and sold it during the marriage

and that the deferred payments were not for services or work performed but for the shares sold.

Husband contends he is entitled to the total management carve out amount because the deferred

payments were paid only as he continued to meet all the terms of the employment agreement and

the SPA.

       We find no error in the circuit court’s treatment of the SPA as a deferred compensation

plan, an asset form subject to equitable distribution pursuant to Code § 20-107.3(G)(1). Code

§ 20-107.3(G)(1) provides that, “The court may direct payment of a percentage of the marital

share of any pension, profit-sharing or deferred compensation plan or retirement benefits,

whether vested or nonvested, which constitutes marital property and whether payable in a lump

sum or over a period of time.” As this Court previously stated, “[W]e find no support for the

view that the legislature intended to exclude retirement plans, or any other specific type of

property, from the overall equitable distribution scheme.” Mann v. Mann, 22 Va. App. 459, 463,
                                                - 9 - 
470 S.E.2d 605, 607 (1996) (emphasis added) (citing Banagan v. Banagan, 17 Va. App. 321,

325, 437 S.E.2d 229, 231 (1993) (“When pension benefits comprise a ‘portion of the pool of

marital assets,’ they are clearly contemplated by the ‘scheme’ of Code § 20-107.3, which is

intended to justly distribute the ‘marital wealth of the parties.’”)). See also Cirrito v. Cirrito, 44

Va. App. 287, 292-93, 605 S.E.2d 268, 270-71 (2004) (the Court of Appeals found that the

future wages lost pursuant to a non-compete agreement were a substitute for a salary and subject

to equitable distribution); see also Luczkovich v. Luczkovich, 26 Va. App. 702, 708-09, 496

S.E.2d 157, 160 (1998) (this Court determined the equitable distribution of severance payments

based on whether “the severance pay was intended to compensate the employee for efforts made

during the marriage or to replace post-separation earnings”).

       While the form of the deferred compensation plan at issue here differs from more

commonly used plans, we find no error in the trial court’s threshold finding that the SPA

instituted a deferred compensation plan, based on “work performed, to be paid in the future or

when some future event occurs.” Schuman v Schuman, 282 Va. 443, 446, 717 S.E.2d 410, 411

(2011) (quoting Black’s Law Dictionary 322 (9th ed. 2009)). The stock at issue was acquired

and sold during the marriage, the stock’s purchase price was based on husband’s work, and,

while the sale provided an initial payment of the proceeds to be made, a substantial portion of the

proceeds of sale was to be deferred pursuant to the SPA.

       We also find no error in the trial court’s conclusion that, based on the SPA, the effort

husband contributed to the creation of the stock during the marriage, as well as husband’s

performance of the SPA’s non-compete and employment provisions of the SPA up to and post

separation on April 15, 2013, comprised of the consideration for the SPA and in the trial court’s

classification as hybrid and not marital. It is clear from the language of the SPA that, in the

absence of husband’s efforts to remain employed and not compete with Conde Nast after the

                                                 - 10 - 
acquisition of ZipList, the deferred payments would have been forfeited. As established by the

Supreme Court of Virginia in Schuman, the classification of a marital asset pursuant to

Virginia’s equitable distribution scheme is made at the time of acquisition, and “the date of

vesting is not, by itself, dispositive of whether the deferred compensation is marital or separate

property.” Id. at 447, 717 S.E.2d at 412.

       In Schuman, Mary Schuman received a salary, as well as “compensation in the form of

vesting stock . . . , stock options, and a Special Recognition Stock Award . . . .” Id. at 445, 717

S.E.2d at 410. The Supreme Court of Virginia held the trial court erroneously classified

Schuman’s stock awards as her separate property “based solely on the date of vesting.” Id. at

448, 717 S.E.2d at 412. The Supreme Court found the stock awards were a form of deferred

compensation, defining deferred compensation as “[p]ayment for work performed, to be paid in

the future or when some future event occurs.” Id. at 446, 717 S.E.2d at 411 (quoting Black’s,

supra, at 322). Based on that definition, the Court further found that “the stock awards were

payment for work already performed as well as the work Mary performed until the date of

vesting.” Id. “[S]tock options, like retirement benefits, are acquired when they are earned, and

not at the time of receipt, vesting or exercise.” Id. at 447, 717 S.E.2d at 412 (quoting 2 Brett R.

Turner, Equitable Distribution of Property 292 (3rd ed. 2005)). In reaching its decision, the

Court noted, “The inclusion of the phrase [in Code § 20-107.3(G)(1)] ‘whether vested or

nonvested’ clearly indicates that the date of vesting is not, by itself, dispositive of whether the

deferred compensation is marital or separate property.”4 Id.5 The Supreme Court adopted this



       4
         The Virginia Supreme Court further limited this Court’s holding in Shiembob v.
Shiembob, 55 Va. App. 234, 685 S.E.2d 192 (2009), to the facts of that case. Id. at 447 n.5, 717
S.E.2d at 411 n.5.
        
       5
        Code § 20-107.3(G)(1) specifically states that the “court may direct payment of a
percentage of the marital share of any pension, profit-sharing or deferred compensation plan or
                                              - 11 - 
Court’s analysis in Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463 (1993), as establishing the

“proper treatment of deferred compensation for marital share purposes” and that deferred

compensation plans should be treated as pensions or other retirement benefits. Id. at 447-48, 717

S.E.2d at 412.

       In light of the foregoing, we conclude the circuit court properly treated the Conde Nast

payments as a form of deferred compensation. The record also supports the trial court’s finding

that the husband’s deferred payments from the stock sale were earned by husband’s work,

performed both during the marriage and after the parties’ separation, up until the date of the final

payout. Accordingly, we find no error in the circuit court’s classification of the ZipList proceeds

as hybrid property.

       Furthermore, we find that the circuit court did not err in its application of a coverture

fraction to determine the portion of marital property in the proceeds.

                 Under Virginia law, it is well established that the marital portion of
                 a defined benefit plan is distinguished from the separate portion by
                 the application of a fraction, the numerator of which represents the
                 total time the pensioner is employed during the parties’ marriage,
                 and the denominator of which represents the total time the
                 pensioner is employed through the date of retirement. The fraction
                 diminishes the marital share in relation to the number of years that
                 pre- and post-marital contributions are made. Thus, as applied, the
                 fraction effectively excludes from the marital share the income
                 earned by pre- and post-marital contributions to the pension.

Mann, 22 Va. App. at 464-65, 470 S.E.2d at 607-08 (internal citations omitted).

       In Wright, 61 Va. App. at 455, 737 S.E.2d at 530 (citing Schuman, 282 Va. at 448, 717

S.E.2d at 412), this Court recognized that the Supreme Court of Virginia stated that coverture

fractions could be used for retirement plans other than pensions. Therefore, since the circuit




retirement benefits, whether vested or nonvested, which constitutes marital property and whether
payable in a lump sum or over a period of time.”
                                              - 12 - 
court correctly treated the stock payments as a form of deferred compensation, the circuit court

did not err in applying a coverture fraction.

                              II. Alternate Valuation Date and Waste

       Wife argues that the circuit court erred in holding that husband did not waste the stock

payments he received. She contends the circuit court should have applied an alternate valuation

date to determine the value of the stock payments to be divided.

               The court shall determine the value of any such property as of the
               date of the evidentiary hearing on the evaluation issue. . . . Upon
               motion of either party made no less than 21 days before the
               evidentiary hearing the court may, for good cause shown, in order
               to attain the ends of justice, order that a different valuation date be
               used.

Code § 20-107.3(A).

       “On appeal, we review the court’s determination of a valuation date for abuse of

discretion.” Wright, 61 Va. App. at 463, 737 S.E.2d at 534 (quoting Thomas v. Thomas, 40

Va. App. 639, 647, 580 S.E.2d 503, 506 (2003)). This Court explained that an “alternate

valuation date may be necessary due to the dissipation of marital assets by one of the spouses

after the separation of the parties.” Id. at 464, 737 S.E.2d at 534.

               [T]he burden is on the party who last had the funds to establish by
               a preponderance of the evidence that the funds were used for living
               expenses or some other proper purpose. If the party is unable to
               offer sufficient proof, the court must value the property at a date
               other than the date of the evidentiary hearing so as to achieve an
               equitable result.

Id. at 464, 737 S.E.2d at 535 (quoting Clements v. Clements, 10 Va. App. 580, 587, 397 S.E.2d

257, 261 (1990)).

       Husband presented evidence that he used the ZipList proceeds to pay taxes and marital

debt and to disburse $150,000 to each party. The circuit court found that husband’s explanation

for the use of the funds was credible. “It is well established that the trier of fact ascertains a


                                                 - 13 - 
witness’ credibility, determines the weight to be given to their testimony, and has the discretion

to accept or reject any of the witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668 (1997) (en banc) (citation omitted).

       Contrary to wife’s arguments, the circuit court did not err in refusing to use an alternate

valuation date because husband did not waste the ZipList proceeds.

                                            III. Waiver

       In her eighth assignment of error, wife argues that the circuit court erred in giving

husband credit for payments on marital debt that he paid with separate funds.  In her ninth

assignment of error, wife contends the circuit court erred in awarding husband a “significantly

larger portion of the marital estate” than wife.

       In the argument section of her opening brief, wife summarized that the circuit court

considered “improper evidence, which gave improper credits to Mr. Allen and resulted in

Mr. Allen receiving an inequitable distribution.” She did not expand on this statement, nor did

she offer any legal authority to support her statement. Accordingly, wife waived her arguments

for the eighth and ninth assignments of error. See Muhammad v. Commonwealth, 269 Va. 451,

478, 619 S.E.2d 16, 31 (2005) (“Failure to adequately brief an assignment of error is considered

a waiver.” (citation omitted)).

                                       IV. Fifth Amendment

       Wife argues that the circuit court erred in determining that she waived her Fifth

Amendment rights against self-incrimination and requiring her to answer questions regarding her

sexual relationship with another person.

       During the trial, husband’s counsel asked wife the following question: “Ma’am, you

were a faithful and dutiful wife throughout the course of your marriage to Mr. Allen; isn’t that

right?” Wife responded, “I believe I was.” Counsel followed up and asked wife, “You believe

                                                   - 14 - 
you were a faithful and dutiful wife during the course of your marriage to Mr. Allen?” Wife

answered, “I believe I was, yes.” Then, husband’s counsel asked wife about her trips to

California. Counsel subsequently inquired, “During your trip to California, you engaged in a

sexual relationship with a gentleman named Michael Schofield; isn’t that right?” Wife stated,

“I’m going to plead the fifth on that one.”

       Husband argued that wife had waived her right to plead the Fifth Amendment because

she previously testified that she believed that she was a faithful and dutiful wife. Wife argued

that she did not waive her right by answering a general question because there could be different

interpretations of the terms “faithful and dutiful.” The circuit court disagreed with wife because

the issue of adultery was raised by husband earlier in the trial. Husband testified that wife

admitted to the affair in counseling, and then later, wife denied admitting it. The circuit court

noted that “there certainly has been no kind of confusion about the position that [husband] has

taken in the case, that he had an admission of adultery from his wife and that he was going to

pursue that as a part of this particular case.” The circuit court held that wife waived her right to

claim the Fifth Amendment after stating that she believed she was a “faithful and dutiful” wife

because she “can’t just dart in and out. [She] can’t just claim it when it’s convenient.” In

addition to the fact that husband raised the issue of wife’s affair earlier, the circuit court noted

that wife was “highly educated” and had “skilled counsel.” Wife’s counsel did not object during

husband’s testimony regarding the affair, nor did counsel object to the questions about whether

she was “faithful and dutiful.” The circuit court held that wife’s responses to the questions about

being “faithful and dutiful” were waivers for the Fifth Amendment.

       Assuming without deciding that the circuit court erred in holding that wife waived her

Fifth Amendment rights, we hold that the error was harmless.

                      “‘[B]efore a federal constitutional error can be held
               harmless, the court must be able to declare a belief that it was
                                                 - 15 - 
               harmless beyond a reasonable doubt;’ otherwise the conviction
               under review must be set aside.” Lilly v. Commonwealth, 258 Va.
               548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v.
               California, 386 U.S. 18, 24 (1967)). “This standard requires a
               determination of ‘whether there is a reasonable possibility that the
               evidence complained of might have contributed to the
               conviction.’” Id. (quoting Chapman, 386 U.S. at 23).

Brant v. Commonwealth, 32 Va. App. 268, 278-79, 527 S.E.2d 476, 481 (2000).

       In this case, the evidence proved that any error was harmless beyond a reasonable doubt

because wife’s testimony was cumulative. At the point in the trial when husband’s counsel

asked wife about her relationship with another man, husband previously had testified that wife

admitted to having an affair. During her direct examination, wife denied husband’s statement

that in March 2013, she admitted to having an affair. Thereafter, husband further testified about

wife’s admission and affair. The circuit court had the information about wife’s extramarital

relationship without wife’s detailed testimony regarding her relationship with Schofield.

       The circuit court had the opportunity to see and hear the witnesses, and it found

husband’s testimony about the affair to be credible. “We defer to the trial court’s evaluation of

the credibility of the witnesses who testify ore tenus.” Shackelford v. Shackelford, 39 Va. App.

201, 208, 571 S.E.2d 917, 920 (2002).

       Furthermore, we note that during her direct examination, wife denied admitting to having

an affair. Husband then had a right to explore her answer further on cross-examination.

               We acknowledge that, “the latitude permissible in
               cross-examination of witnesses is largely within the sound
               discretion of the trial court.” Yet the trial court’s discretion in this
               regard is not unfettered. Indeed, “cross-examination on a matter
               relevant to the litigation and put in issue by an adversary’s witness
               during a judicial investigation is not a privilege but an absolute
               right[.]”

Campbell v. Campbell, 49 Va. App. 498, 504, 642 S.E.2d 769, 772-73 (2007) (quoting Basham

v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958)).


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                                        V. Spousal support

       Wife argues that the circuit court erred in establishing her spousal support at $3,400 per

month. She contends the circuit court did not consider the amount necessary for wife to maintain

her upper class lifestyle that she enjoyed during the marriage, nor did it adequately take into

account husband’s ability to pay spousal support.

       “In reviewing a spousal support award, we are mindful that the trial court has broad

discretion in awarding and fixing the amount of spousal support. Accordingly, our review is

limited to determining whether the trial court clearly abused its discretion.” West v. West, 53

Va. App. 125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679,

607 S.E.2d 126, 128 (2005)).

       The circuit court reviewed the factors in Code § 20-107.1(E) and each of the parties’

incomes and expenses. The circuit court found that “[m]any of the figures [for expenses] . . .

were somewhat inflated.” In addition, the circuit court examined the parties’ incomes. As of the

final day of the hearing, husband was no longer employed, and he had received a severance

package from Conde Nast. Despite husband’s current state of unemployment at the time of the

hearing, the circuit court considered husband’s severance package and history of earnings to

determine husband’s monthly income to be used for support purposes.

       Contrary to wife’s arguments, the circuit considered the parties’ standard of living. It

found that the parties enjoyed “an upper class standard of living” and had a “very comfortable

lifestyle.” Further, the circuit court noted that the parties were “amassing debt, but there was a

lot of discretionary money for spending and a lot of money was spent.” The circuit court

explained after reviewing the factors, it considered the parties’ expenses and “tried to look at

what was reasonable, unreasonable.” It also took into account the assets that the parties received

pursuant to equitable distribution.

                                               - 17 - 
       Considering the totality of the evidence, the circuit court did not abuse its discretion in

awarding wife $3,400 per month in spousal support.

                                   VI. Attorney’s fees and costs

       Both parties have requested an award of attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we decline to award either party attorney’s fees and costs on appeal.

                                         CONCLUSION

       For the reasons discussed above, we affirm the circuit court’s rulings.

                                                                                           Affirmed.




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