                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


STEPHEN M. SMITH
                                          MEMORANDUM OPINION *
v.         Record No. 2801-95-3               PER CURIAM
                                            JULY 16, 1996
JUDY CHAFFIN SMITH


             FROM THE CIRCUIT COURT OF PULASKI COUNTY
                       Colin R. Gibb, Judge

           (Debra Fitzgerald-O'Connell; Gilmer, Sadler,
           Ingram, Sutherland & Hutton, on brief), for
           appellant.
           (Edwin C. Stone; Clifford L. Harrison; Stone,
           Harrison, Turk & Showalter, on brief), for
           appellee.



     Stephen M. Smith (husband) appeals the decision of the

circuit court awarding spousal support to Judy Chaffin Smith

(wife) and deciding other issues.    Husband raises the following

issues on appeal:    (1) whether the trial court erred in ordering

husband to pay $5,000 as part of the equitable distribution of

the parties' marital personal property; (2) whether the trial

court erred in awarding wife the maximum share of all real and

intangible personal property; (3) whether the trial court erred

in awarding wife spousal support; and (4) whether the trial court

erred in awarding wife $1,000 in attorney's fees.

     Upon reviewing the record and briefs of the parties, we

conclude that this appeal is without merit.    Accordingly, we

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
summarily affirm the decision of the trial court.      Rule 5A:27.

              Equitable Distribution Monetary Award

     The evidence was heard by the commissioner in chancery,

whose report was accepted by the trial court.
          The commissioner's report is deemed to be
          prima facie correct. The commissioner has
          the authority to resolve conflicts in the
          evidence and to make factual findings. When
          the commissioner's findings are based upon
          ore tenus evidence, "due regard [must be
          given] to the commissioner's ability . . . to
          see, hear and evaluate the witness at first
          hand." Because of the presumption of
          correctness, the trial judge ordinarily must
          sustain the commissioner's report unless the
          trial judge concludes that it is not
          supported by the evidence.

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)

(citations omitted).   "This rule applies with particular force to

a commissioner's findings of fact based upon evidence taken in

his presence, but is not applicable to pure conclusions of law

contained in the report."   Hill v. Hill, 227 Va. 569, 577, 318

S.E.2d 292, 296 (1984) (citation omitted).      This Court must

affirm the trial court's decision unless it is plainly wrong or

without evidence to support it.       McLaughlin v. McLaughlin, 2 Va.

App. 463, 466-67, 346 S.E.2d 535, 536 (1986).

     The commissioner considered the statutory factors before

recommending the equitable distribution scheme ultimately

accepted by the trial court.   Code § 20-107.3(E).     Both parties

contributed to the acquisition and maintenance of the marital

home and other marital assets, although husband provided most of

the financial contributions.   The marital assets of husband's



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pension, 401K, and thrift plans were acquired through husband's

employment.   Wife worked part-time throughout most of the

marriage, but she did not have substantial earnings or accrue

extensive retirement benefits.   Husband retained the marital home

and most of the furnishings, although wife removed some

furnishings when she left the home.

     Husband retained two vehicles worth approximately $12,000,

plus furnishings worth $4,000.   While husband asserts that the

value of a piano and the furniture in his daughters' rooms should

not be assessed against him, there was evidence that these items

were marital assets which remained in his possession in the

marital home.   Wife retained a vehicle and furnishings worth

approximately $5,000.   Therefore, as there was evidence to

support the commissioner's recommended monetary award to wife of

$5,000, we cannot say the trial court's decision to accept that

recommendation was plainly wrong or unsupported by the evidence.

                  Award of Fifty Percent Interest
     The commissioner recommended that wife receive fifty percent

of the marital share of husband's pension and retirement

accounts.   This award conformed with the statutory requirements.

 See Code § 20-107.3(G).   The statute contains no comparable

limitation on an award of other marital assets.     While

"Virginia's statutory scheme of equitable distribution does not

have a presumption favoring an equal distribution of assets,"

Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d 572, 577




                                 3
(1992), we cannot say the award of a fifty percent interest in

other marital assets, including the marital home, was an abuse of

discretion or unsupported by the evidence.

                          Spousal Support

     Code § 20-107.1 provides that, upon entry of a decree of

divorce, "the court may make such further decree as it shall deem

expedient concerning the maintenance and support of the spouses."

While the statute provides that "no permanent maintenance and

support shall be awarded from a spouse if there exists in such

spouse's favor a ground of divorce under the provisions of

subdivision (1) of § 20-91," the court may nonetheless award

support to a spouse guilty of adultery "if the court determines

from clear and convincing evidence, that a denial of support and

maintenance would constitute a manifest injustice . . . ."
     Husband was awarded a divorce on the grounds of wife's

desertion.   His assertion of adultery as a ground was found to be

unsupported by the evidence.   Therefore, Code § 20-107.1 did not

preclude an award of support to wife.   The trial court found that

wife was entitled to $200 per month in spousal support.   In

awarding spousal support, the trial court noted that it had

reviewed the statutory factors, "particularly the earning

capacities of the parties, the duration of the marriage, and the

contributions made by the parties to the well-being of the family

during the marriage."

     Both parties contributed to the marriage, with wife making



                                 4
the majority of the non-financial contributions and husband

making the majority of the financial contributions.      Husband

earned $4,036 per month, compared to wife's monthly income of

$1,624.   Husband retained the marital home.     The parties had a

twenty-six year marriage which they each described as good until

serious problems erupted in 1992.
          In awarding spousal support, the chancellor
          must consider the relative needs and
          abilities of the parties. He is guided by
          the nine factors that are set forth in Code
          § 20-107.1. When the chancellor has given
          due consideration to these factors, his
          determination will not be disturbed on appeal
          except for a clear abuse of discretion.


Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986).   The trial court considered the statutory factors, and we

cannot say that the court abused its discretion in making its

determination.

                          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.       Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987).      The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).

     Husband had substantially greater income.      The commissioner

found that the evidence did not support husband's allegations of

adultery.   Based on the number of issues involved and the



                                   5
respective abilities of the parties to pay, we cannot say that

the award was unreasonable or that the trial court abused its

discretion in making the award.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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