                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


DAWN WHITE LEGAT
                                            MEMORANDUM OPINION *
v.   Record No. 0697-99-1                       PER CURIAM
                                              AUGUST 10, 1999
DAVID BRUCE LEGAT


           FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                    Robert G. O'Hara, Jr., Judge

           (John N. Clifford; Robert C. Elliott, II;
           Rebecca Eliz. Duffie; Clifford & Duke, P.C.;
           The Elliott Law Firm, on briefs), for
           appellant.

           (Ronald S. Evans; Brenner, Dohnal, Evans &
           Yoffy, P.C., on brief), for appellee.


     Dawn White Legat (wife) appeals the final decree of divorce

entered by the circuit court granting David Bruce Legat

(husband) a divorce on the ground of adultery.    Wife contends on

appeal that the trial court erred by (1) awarding husband a

divorce on the ground of adultery; (2) failing to award wife a

divorce on the ground of cruelty amounting to constructive

desertion; (3) including post-separation adultery as a factor in

its equitable distribution decision; (4) awarding wife only

forty percent of the marital property; and (5) awarding wife

only $2,500 in attorney's fees and costs.    Upon reviewing the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
record and 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.

     The parties presented evidence to the trial court by

deposition as well as by testimony received during a hearing ore

tenus.

                 Under familiar principles, we view the
            evidence and all reasonable inferences in
            the light most favorable to the prevailing
            party below . . . . "The burden is on the
            party who alleges reversible error to show
            by the record that reversal is the remedy to
            which he is entitled." We are not the
            fact-finders and an appeal should not be
            resolved on the basis of our supposition
            that one set of facts is more probable than
            another.

Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859

(1992) (citations omitted).

                         Grounds for Divorce

     Wife contends that the trial court erred by granting husband

a divorce on the ground that she committed post-separation

adultery.   We find no reversible error.

     "To establish a charge of adultery the evidence must be

clear, positive and convincing.   Strongly suspicious circumstances

are inadequate."    Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d

37, 38 (1975).   However, "'[w]hile a court's judgment cannot be

based upon speculation, conjecture, surmise, or suspicion,

adultery does not have to be proven beyond a reasonable doubt.'"


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Gamer v. Gamer, 16 Va. App. 335, 339, 429 S.E.2d 618, 622 (1993)

(citation omitted).

     It was uncontested that wife moved into the home of Steven

McGuire, Sr., in October 1996.   In his deposition, McGuire

admitted that he and wife began to occupy the master bedroom in

January 1997, but he refused to say if they became sexually

intimate, asserting his right to avoid self-incrimination under

the Fifth Amendment of the United States Constitution.   Wife

admitted that "somewhere in the neighborhood of January, '97" she

and McGuire began a "relationship" rather than a "friendship."

Wife also asserted her Fifth Amendment right to avoid

self-incrimination and refused to answer whether she had a sexual

relationship with McGuire.   Thus, the evidence established that

when wife and McGuire began to share the master bedroom, the

nature of their relationship changed from a friendship to

something more.   The trial court found this evidence sufficient to

establish wife's adultery.   On review, we cannot say that the

trial court's decision was unsupported by sufficient evidence.

Therefore, we affirm the trial court's finding.

     Wife also contends that the trial court erred by failing to

grant her a divorce on the ground of constructive desertion.     "The

misconduct of an offending spouse which will justify the other in

leaving must be so serious that it makes the relationship

intolerable or unendurable."   McLaughlin v. McLaughlin, 2 Va. App.

463, 467, 346 S.E.2d 535, 537 (1986).   There was evidence that the
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parties argued throughout the marriage.   Wife admitted that both

parties suffered from stress throughout the marriage and that

physical confrontations were not the primary problem.   The trial

court found that both parties were "diligent and truthful," but

that the marriage suffered problems "for perhaps a decade or

better."    Based upon the record, we cannot say that the trial

court committed reversible error in failing to find husband guilty

of constructive desertion.   Moreover, even if there was sufficient

evidence to support the granting of a divorce to wife on the

ground of cruelty, "[i]t is well established that '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.'"    Williams v. Williams, 14 Va. App. 217, 220, 415

S.E.2d 252, 253 (1992) (citation omitted).

                        Equitable Distribution

     Wife contends that the trial court erroneously relied upon

her alleged post-separation adultery when making its decision as

to the equitable distribution of the parties' marital property.

It is not clear from the trial court's remarks when ruling from

the bench, nor from the final decree itself, that the trial court

considered marital fault when making its equitable distribution

decision.   Assuming arguendo that the trial court included marital

fault in the factors it weighed, we find no reversible error.

     Wife cites Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833

(1988), in support of her contention that the trial court erred by
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considering her post-separation adultery as a factor when making

its equitable distribution decision.   In Aster, we stated that

"circumstances that lead to the dissolution of the marriage but

have no effect upon marital property, its value, or otherwise are

not relevant in determining a monetary award, need not be

considered."   Aster, 7 Va. App. at 6, 371 S.E.2d at 836.    However,

we have noted that Aster does not bar a trial court from

considering the effect of marital fault under other factors set

out in Code § 20-107.3.

          If the evidence of misconduct is relevant
          under any other factor than subparagraph
          [§ 20-107.3(E)](5), it may in the judge's
          discretion be considered when making an
          equitable award. The trial court may
          "consider the negative impact of [an] affair
          on the well-being of the family . . . ."

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

323, 326 (1995) (quoting Smith v. Smith, 18 Va. App. 427, 431,

444 S.E.2d 269, 273 (1994)).   Evidence indicated that wife

confided in McGuire about the troubles in her marriage.      She

told him she would leave her husband if she had a place to go.

McGuire himself separated from his wife in July 1996.       He then

offered wife a room in the house where he was living.       McGuire

helped wife move some items of marital property out of the

marital home while husband slept.   Thus, there was evidence that

wife's relationship with McGuire impacted on the marriage and

even, to some degree, on certain items of marital property.

Therefore, even if the trial court considered wife's
                               - 5 -
post-separation adultery when making its decision as to the

distribution of the parties' marital assets, we do not find that

the trial court committed reversible error.

     The trial court noted that husband made the majority of the

monetary contributions to the family while wife made the

majority of the nonmonetary contributions.    Wife began working

outside the home in the later years of the marriage.    Although

the parties were married for almost twenty years, both were

relatively young and in good health at the time of trial.

          In reviewing an equitable distribution award
          on appeal, we have recognized that the trial
          court's job is a difficult one, and we rely
          heavily on the discretion of the trial judge
          in weighing the many considerations and
          circumstances that are presented in each
          case. Unless it appears from the record
          that the [judge] has abused his discretion
          or has failed to consider or has misapplied
          one of the statutory factors, his
          determination will not be reversed on
          appeal.

Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990)

(citations omitted).   We cannot say that the trial court abused

its discretion in reaching its decision to award wife forty

percent of the parties' marital property.

                          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

                               - 6 -
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).   Husband had greater monthly income, but was also making

almost $900 a month in child support payments.   Wife's attorney's

fees were approximately $10,000.   Based on the number of issues

involved and the respective abilities of the parties to pay, we

cannot say that the trial court's award to wife of $2,500 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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