                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


RAYMOND K. COVINGTON
                                      MEMORANDUM OPINION * BY
v.   Record No.   0995-96-2         CHIEF JUDGE NORMAN K. MOON
                                         DECEMBER 17, 1996
EDWINA A. COVINGTON


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                 William H. Ledbetter, Jr., Judge
          John M. DiJoseph (Sattler & DiJoseph, P.C.,
          on brief), for appellant.

          No brief or argument for appellee.



     Raymond K. Covington appeals the judgment of the circuit

court deciding matters of spousal support, custody, and equitable

distribution.   Appellant raises six questions: (1) whether the

trial court erred by failing to consider all the factors for

determining spousal support under Code § 20-107.1; (2) whether

the trial court erred by refusing to give appellant an ore tenus

hearing on the issue of custody; (3) whether the trial court

erred when it held that the denial of visitation was not a change

of circumstances warranting a change in custody; (4) whether the

trial court miscalculated child support under the guidelines; (5)

whether the trial court's legal analysis of the parties'

antenuptial agreement was flawed and failed to consider the

factors enumerated by Code § 20-107.3(E) in determining equitable

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
distribution; and (6) whether the trial court miscalculated the

marital share of appellant's federal government pension.    We find

that the trial court did not err in its disposition of these

matters, and accordingly, we affirm the decision of the trial

court.

     The parties were married on November 10, 1980.     The parties

entered an antenuptial agreement dated November 12, 1980, wherein

appellee relinquished all rights in appellant's real estate in

exchange for $6,000, or one-third of the value of the real

estate, whichever was greater, at the time of appellant's death.

 Appellee left the marital abode on April 2, 1993, after a

prolonged period of disagreement between the parties.    Judgment

of the Circuit Court of Spotsylvania County was entered April 15,

1996, granting appellee a no-fault divorce, granting appellee

custody of the parties' two children, Edwina, age ten, and Rae-

Ann, age nine, determining equitable distribution of marital

assets, and awarding spousal and child support.
     Several pieces of property were acquired during the

marriage.   In 1980, appellant acquired three parcels totalling

about eight acres near Thornburg in Spotsylvania County

("Thornburg property").   Appellant contends that the property was

acquired with his income earned prior to the parties' marriage.

On January 22, 1993, shortly before the parties separated,

appellant created a trust (the "CQ Trust") benefitting the

parties' children and transferred the Thornburg property to the




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trust.   Appellant, appellant's brother and a friend were named as

trustees.   The property was valued at $28,800 and was not

encumbered.

     In 1981, appellant purchased a house on Clay Street in the

District of Columbia ("Clay Street property").    The home served

as the parties' marital abode until they relocated to

Spotsylvania County.   The property was sold in 1989.

     On April 20, 1983, appellant bought a duplex in Rochester,

New York for $5,500 titled in his name.   The home was in need of

much repair at the time of purchase and was repaired by members

of appellant's family.    The home was purchased for appellant's

parents and was titled in appellant's name because at the time

appellant's mother's credit was "overextended."    Appellant

asserts that the home was purchased with non-marital funds

supplemented by funds of appellant's mother.   The property was

later sold.
     In October, 1983, the parties jointly acquired a parcel in

Glenn Hill Subdivision in Camp Springs, Maryland ("Camp Springs

property").   The property was sold in 1990 to Mr. Covington's

brother for the $67,451 balance of the mortgage.   The property

was valued at $118,000.

     In 1987, appellant purchased a townhouse in Bragg Hill,

located in Fredericksburg ("Bragg Hill property").   Appellant

asserts that his family provided most of the purchase price.

Appellee contends that she made a substantial monetary




                                - 3 -
contribution.    On January 22, 1993, shortly before the parties'

separation, appellant transferred the property to the CQ Trust.

The property was valued at $30,400.      It is not clear what the

balance was on the deed of trust, however, the balance was

$25,500 at the time appellant purchased the property.

        On January 12, 1987, the parties purchased a home on Noel

Drive in Arrington Heights Subdivision in Spotsylvania County

("Noel Drive property").    This residence served as the marital

abode until the parties' separation on April 2, 1993.

Subsequently, the property went to foreclosure and was sold at

auction on December 3, 1993.
        In 1988, the parties purchased a lot next to the Noel Drive

property.    The lot was valued at $16,000 and was not encumbered.

        In addition to the real property assets, the marital estate

also included appellant's government retirement.     Appellant was

employed by the United States Patent and Trademark Office

beginning in 1974.    The court calculated the marital share as

thirteen years over appellant's total years of service.     Appellee

withdrew her retirement benefits during the course of the

marriage and consequently was not the beneficiary of a retirement

fund.

        The parties' liabilities include appellee's medical and

legal bills totalling $22,000 and appellant's income tax

liability for 1990, 1991, and 1992 totalling more than $52,000.

                             Spousal Support




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     Code § 20-107.1 delineates the specific factors to be

considered by the trial court in determining spousal support.

Appellant's assertion that the trial court failed to consider

these factors is contradicted by the record.    The trial court's

cognizance of the statutory factors is evidenced by the court's

statement that "[c]onsidering all the factors enumerated in

§ 20-107.1, including the monetary award, the court is of the

opinion that . . . ."   Appellant properly argues that mere

recitation that the factors have been considered is insufficient.

However, the record indicates that the trial court heard and

considered evidence addressing the factors and weighed them in

making its final award.
     Contrary to appellant's apparent belief that the trial court

did not give proper consideration to appellee's ability to work,

the trial court specifically observed that "[appellant] appears

to be in good health.   [Appellee] suffers from several medical

conditions, including diabetes and asthma.    Her disability is

obvious.   Thus, her work history and earnings records are of

marginal relevance at this point."     While appellant may disagree

with the weight the trial court has accorded the evidence

regarding appellee's health, the record nonetheless indicates the

court's clear consideration of the matter.

     Similarly, appellant argues that "the court failed to give

due weight to the huge tax bill of about $52,000, that

[appellant] owes."   The court's opinion observes that "[t]he




                               - 5 -
parties' liabilities that have been particularized for the court

are [appellee's] medical and legal bills . . . totalling about

$22,000.00, and an income tax liability of [appellant's] for

1990, 1991, and 1992 amounting to more than $52,000.00."   Again,

the trial court's opinion clearly evidences consideration of the

factor.   The court is under no obligation to give more or less

weight to this factor, and appellant's belief that the matter

should have been accorded more weight does not constitute grounds

on which this Court may interfere with the findings of the trial

court.    Nor does the fact that the trial court did not proceed to

discuss each of the remaining factors enumerated by Code

§ 20-107.1 individually require a finding of error.   Provided the

record indicates the court's consideration of these factors, as

is the case here, the trial court need not disclose the totality

of its considerations nor must it address each factor point by

point in its opinion.

                          Ore Tenus Hearing
     Appellant accurately asserts that it is well established

that "[t]he trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed

unless plainly wrong or without evidence to support it."    Venable

v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).

However, this holding does not stand for the proposition that an

ore tenus hearing is required.    It is within the discretion of

the trial court to take evidence in such a manner.    The court's



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decision not to do so does not, as a matter of law, require

reversal of the trial court's decision.

       It is also worth noting that appellant's claim that the

trial court erred, even if a meritorious claim, was not properly

preserved for consideration on appeal.    As noted in the trial

court's thorough letter opinion which, in relevant part,

addressed appellant's exception to the method in which evidence

was taken, it was appellee, not appellant, who originally

requested an ore tenus hearing.    Here, it is appellant that

objects to the fact that an ore tenus hearing was not held.

However, it was the parties' decision not to pursue such a

hearing.   The trial court offered the parties the option of

having the matter referred to a commissioner in chancery or, if

the parties wished, of taking evidence by deposition. (Letter

Opinion from J. William H. Ledbetter, Jr. to Thomas Y. Savage,

Esq. and Nicholas A. Pampas, Esq., of 10/27/95, trial court

record at 329-330).   Neither party ever submitted a sketch decree

of reference or otherwise informed the court that they wished to

have a commissioner appointed to receive evidence and

consequently, the trial court reached the logical conclusion that

the parties had decided to take evidence by deposition.     Id. at

330.

       In addition to relying on the parties' apparent preferences

with regard to this matter, the trial court's action in this

matter also reflects the fact the trial court was familiar with




                                - 7 -
the parties. The trial court explained, noting that:
          Finally, it should be noted that [the
          parties] are not strangers to the court.
          They have appeared and testified at ore tenus
          hearings, so that the court has observed
          their demeanor and has had occasion to
          determine their credibility and to weigh
          their testimony. Much of what is contained
          in the depositions is a restatement, with
          more detail and elaboration, of previous
          testimony heard by the court. The court has
          carefully reviewed the transcribed testimony
          and the exhibits, and under the circumstances
          of this case, has been able to give full and
          fair consideration to the evidence.


Id.

      The trial court acted within its sound discretion in taking

evidence and fairly relied on the preferences of the parties in

proceeding.   Accordingly, we find the trial court did not err by

not conducting an ore tenus hearing.

                       Denial of Visitation

      Appellant asserts that the court erred by holding that the

denial of visitation by appellee did not constitute a material

change in circumstances warranting a change in custody.

Appellant has misstated the court's holding.   The court did not

decide it was not a change of circumstances; it decided that

"[appellant's] assertions about visitation are not, under the

circumstances, sufficient to justify change of custody even

giving due deference to all of his complaints."

      The trial court's opinion clearly indicates the additional

circumstances it considered and which it found warranted

appellee's continued custody.   The trial court indicated that the


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parties' children, ages ten and nine, had lived with appellee all

their lives, that appellee has been their primary caretaker, and

that appellee continues to reside in the Fredericksburg community

in which the children have grown up, whereas appellant has

relocated to Fort Washington, Maryland.   In light of these

circumstances and considering all the factors enumerated by Code

§ 20-124.3, the trial court properly found that the best

interests of the children were served by continuing custody with

appellant.

                    Child Support Calculations

     Appellant argues that in calculating child support, the

trial court did not give sufficient weight to appellant's ability

to pay and appellee's ability to work, factors prescribed under

Code § 20-108.1(B)(11).

     Had the trial court failed to consider these factors, this

would constitute error.   Hiner v. Hadeed, 15 Va. App. 575, 578,

425 S.E.2d 811, 813 (1993).   However, the record indicates that

the court gave consideration to these factors.   The relative

weight accorded these factors is based on the evidence presented

to the trial court and is determined in the court's ultimate

discretion.   Here the trial court concluded, "[c]onsidering the

factors enumerated in § 20-108.1, and with special consideration

of the statutory guidelines in § 20-108.2, . . . that [appellant]

should pay $950 per month as child support, the presumptive

amount . . . ."   This amount constituted a reduction in



                               - 9 -
appellant's prior support obligations.

     Contrary to appellant's assertions, this reduction was made

in light of the trial court's recognition of appellant's

diminished capacity to pay.   The trial court specifically stated

in its letter opinion that "[t]he diminution from previous

support orders is based on the significant tax indebtedness owed

by [appellant] and the money now being received by [appellee]

from Social Security for the children."
      Likewise, with regard to the appellant's argument that the

court did not give proper weight to the ability of appellee to

work, the record clearly indicates the court considered this

factor.   The trial court specifically observed that "[appellant]

appears to be in good health.    [Appellee] suffers from several

medical conditions, including diabetes and asthma.    Her

disability is obvious.   Thus, her work history and earnings

records are of marginal relevance at this point."

     Finding that the statutorily prescribed factors were

considered by the trial court in reaching its decision, we find

no error and again reiterate that the weight accorded the

evidence by the trial court is soundly within the discretion of

the court.

          Antenuptial Agreement and Equitable Distribution

          Prior to July 1, 1986, the validity of antenuptial

agreements was governed by conditions set forth in Batleman v.

Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957).    By the




                                - 10 -
enactment of the Virginia Premarital Agreement Act (Act),

effective July 1, 1986, execution of such contracts has been

given legislative approval within the limits set forth therein.

Batleman provided that:
          To render an ante-nuptial agreement valid,
          there must be a fair and reasonable provision
          therein for the wife, or--in the absence of
          such provision--there must be full and frank
          disclosure to her of the husband's worth
          before she signs the agreement, and she must
          sign freely and voluntarily, on competent
          independent advice, and with full knowledge
          of her rights.

199 Va. at 158, 98 S.E.2d at 521 (citation omitted).    Here, the

record supports the conclusion that the agreement is valid.

     At issue, however, is the trial court's interpretation of

the agreement as being limited to only the Thornburg property and

further, being limited only to relinquishment of property rights

at the time of appellant's death.    Antenuptial agreements are

subject to the same rules of construction and interpretation as

other contracts.   Moore v. Gillis, 239 Va. 657, 662, 391 S.E.2d

255, 257 (1990).   It is well established that the "plain meaning"

rule is to be employed when interpreting contracts.     Appalachian

Power Co. v. Greater Lynchburg Transit Co., 236 Va. 292, 295, 374

S.E.2d 10, 12 (1988).    Clear and explicit language in a contract

is to be understood in accord with its ordinary meaning, and, if

the meaning is plain when read, the instrument must be given

effect accordingly.     Moore, 239 Va. at 662, 391 S.E.2d at 257.

     In the agreement entered into by the parties, appellee



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relinquishes all interest in appellant's real estate in exchange

for payment of $6,000, or one-third of the value of the real

estate, whichever is greater, upon the death of appellant.    The

payment is to be in lieu of dower and is to be paid on

appellant's death.    The trial court has determined, and we agree,

that the "plain reading of the express language of the agreement

shows that it is limited to relinquishment of property rights by

[appellee] upon death of [appellant] . . . the agreement does not

address relinquishment of marital property rights upon the

breakup of the marriage."
     "Where, as here, the intention of the parties has been

stated plainly, a court may not fashion a different agreement for

them under the guise of contract interpretation."    Moore, 239 Va.

at 662, 391 S.E.2d at 257.   Accordingly, we find that the trial

court properly determined that the parties' antenuptial agreement

has no effect on equitable distribution of the marital estate.

Having concluded that the trial court properly addressed the

antenuptial agreement, we conclude that the trial court

appropriately considered the prescribed factors enumerated in

Code § 20-107.3(E).
     Marital Share of Appellant's Federal Government Pension

     Code § 20-107.3(G) provides that no marital award of pension

benefits "shall exceed fifty percent of the marital share of the

cash benefits actually received . . . ."   "Marital share" is

defined in that section as "that portion of the total interest,




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the right to which was earned during the marriage and before the

last separation of the parties . . . ."    This provision is

mandatory and can be implemented through the use of a simple

formula.   "The number of years that the spouse was in the pension

plan while in the marriage serves as the numerator and the total

number of years in the pension plan serves as the denominator.

This fraction establishes the marital share of the pension as

defined by the statute."    Mosley v. Mosley, 19 Va. App. 192, 198,

450 S.E.2d 161, 165 (1994).   This fraction is in turn to be

multiplied by the percentage of the marital share awarded to the

spouse, which may not exceed fifty percent of the marital amount.
 Id.   This formula serves to diminish the percentage of a

wife's/husband's pension the spouse will receive as

wife's/husband's employment continues and retains the fifty

percent of the marital share limitation.

       Here, the court has properly employed this formula in

calculating the marital share and the appellee's benefit given

the court's award of thirty-three percent of appellant's pension

to appellee.   Accordingly, we find the court did not err in

calculating the marital share.
                                                    Affirmed.




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