COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Decker and AtLee Argued at Richmond, Virginia UNPUBLISHED
WILLIAM TERRELLE HENDERSON MEMORANDUM OPINION* BY v. Record No. 1364-17-2 JUDGE MARLA GRAFF DECKER MAY 15, 2018 BRIGITTA HENDERSON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge
Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellant.
James M. Goff, II (James M. Goff II, P.C., on brief), for appellee.
William Terrelle Henderson (the husband) appeals a final order of the circuit court resolving
equitable distribution and support issues in the course of his divorce from Brigitta Henderson (the
wife).1 He contends that the equitable distribution award was flawed based on the court’s improper
treatment of various assets and debts. The husband also challenges the child and spousal support
awards, suggesting that the court erroneously calculated the parties’ incomes. Finally, he contends
that the court abused its discretion in awarding attorney’s fees and costs to the wife. For the reasons
that follow, we affirm the circuit court’s decision in part, reverse in part, and remand for further
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The wife also noted an appeal to this Court from the final order. See Brigitta Henderson v. William Terrelle Henderson, No. 1402-17-2 (Va. Ct. App. Aug. 31, 2017). These two cases were joined for purposes of oral argument, but the Court resolves the appeals in separate, simultaneously issued opinions. proceedings consistent with this opinion.2 Additionally, we deny the parties’ respective requests for
attorney’s fees and costs incurred on appeal.
I. BACKGROUND
The parties were married in 1999. They had two children, who were born in 2002 and 2006.
The husband was a professional athlete before and during the marriage but retired shortly after their
second child was born in 2006. The couple accumulated substantial assets, as well as some debts,
before separating in 2014.
The wife filed a bill of complaint seeking a divorce, child and spousal support, equitable
distribution, and attorney’s fees and costs. Following two evidentiary hearings, the court entered a
final decree granting the divorce, distributing the marital property, and awarding child and spousal
support. The court also ordered the husband to pay the attorney’s fees and costs incurred by the
wife in the circuit court.
II. ANALYSIS
This appeal addresses certain aspects of the circuit court’s equitable distribution, child and
spousal support awards, and attorney’s fees and costs award. Additionally, each party seeks an
award of attorney’s fees and costs incurred as a result of this appeal.
A. Equitable Distribution
The husband challenges the court’s classification of two investment accounts as marital, as
well as the valuation of one of those accounts. He also contends that the court improperly classified
2 The record was sealed by the circuit court pursuant to Code § 20-124. Nevertheless, the appeal necessitates unsealing relevant portions of the record for purposes of resolving the issues raised by the husband. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775, 777 n.1 (2017). -2- as marital property the “line-of-duty” benefits he received based on his work as a professional
athlete.
Code § 20-107.3 requires the circuit court, at the request of divorcing parties, to classify
property owned by the parties separately or jointly as separate, marital, or part separate and part
marital for purposes of equitable distribution. It further requires the court to value the property
and distribute the value of property that it classifies as marital. Code § 20-107.3; see Stumbo v.
Stumbo, 20 Va. App. 685, 692-93, 460 S.E.2d 591, 595 (1995).
On appellate review, a circuit court’s equitable distribution award “will not be overturned
unless the Court finds ‘an abuse of discretion, misapplication or wrongful application of the
equitable distribution statute, or lack of evidence to support the award.’” Wiencko v. Takayama,
62 Va. App. 217, 229-30, 745 S.E.2d 168, 174 (2013) (quoting McIlwain v. McIlwain, 52
Va. App. 644, 661, 666 S.E.2d 538, 547 (2008)). “It is well established that [the circuit court as]
the trier of fact ascertains a witness’ credibility, determines the weight to be given to [his or her]
testimony, and has discretion to accept or reject any of the witness’ testimony.” Layman v.
Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoting Street v. Street, 25
Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc)).
1. Investment Accounts
The husband disputes the court’s rejection of his evidence purporting to trace the funds in
two Wells Fargo accounts to his separate property. He also contests the court’s failure to deduct
the amount of a lien as part of the process of valuing one of the accounts.
-3- a. Classification and Tracing3
We first address the classification of the accounts for purposes of equitable distribution.
The circuit court must classify property as separate or marital, or part separate and part marital,
before valuing and dividing it in equitable distribution. See Code § 20-107.3(A).
Settled principles provide that all property “acquired by each party during the marriage
which is not separate property as defined [in subdivision (A)(1) of Code § 20-107.3]” is
presumed marital. Code § 20-107.3(A)(2)(iii). Subdivision (A)(1) defines separate property to
include “all property acquired during the marriage in exchange for or from the proceeds of sale
of separate property, provided that such property acquired during the marriage is maintained as
separate property.” Code § 20-107.3(A)(1)(iii). Once the presumption that property acquired
during the marriage is marital property comes into play, “[t]he party claiming that property
should be classified as separate has the burden to produce satisfactory evidence to rebut this
presumption.” Joynes v. Payne, 36 Va. App. 401, 428, 551 S.E.2d 10, 23 (2001) (quoting Stroop
v. Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990)). A party’s ability to do so may
rest on the credibility of his evidence. See Anderson v. Anderson, 29 Va. App. 673, 685-87, 514
S.E.2d 369, 375-76 (1999). Classification of property, including whether a party has
successfully proved that property presumed to be marital “was acquired ‘for or from the proceeds
of the sale of separate property,’” is a question of fact and will not be reversed unless “plainly
wrong or without evidence to support it.” See Ranney v. Ranney, 45 Va. App. 17, 31-32, 608
S.E.2d 485, 492 (2005) (quoting Code § 20-107.3(A)(1)).
The dispute involves whether the funds in Wells Fargo accounts #5889 and #7913, titled
only in the husband’s name, were marital or separate property for purposes of equitable
distribution. The accounts came into existence in 2004, significantly after the parties married in
3 This section of the opinion addresses assignments of error 1 through 4. -4- 1999. Consequently, the accounts are presumed to be marital. See McIlwain, 52 Va. App. at
656-58, 666 S.E.2d at 544-45; Lambert v. Lambert, 6 Va. App. 94, 99, 367 S.E.2d 184, 187
(1988). The husband claims that the accounts were funded with sums that were his separate
property and remained his separate property. Accordingly, he bore the burden of tracing those
funds to his wholly separate property, with evidence found credible by the trier of fact. See
Anderson, 29 Va. App. at 685-87, 514 S.E.2d at 375-76.
The husband’s evidence was that he had a separate premarital brokerage account, First
Union/Wachovia account #0410. He claimed that this account, even after the marriage,
contained only his separate funds earned prior to the marriage. He also testified and offered
evidence from various bank employees that this account was the source of all of the funds that he
deposited into Wells Fargo accounts #5889 and #7913. However, it is undisputed that the
husband was unable to produce any records for the First Union/Wachovia account #0410 for the
years 2001 to 2004. The stipulated testimony of a Wells Fargo employee confirmed the
unavailability of these records. In the absence of these records, the circuit court held that the
husband had not borne his burden of proving that the funds in accounts #5889 and #7913 were
his separate funds. The court, as the finder of fact, concluded that the husband’s testimony about
the source of the funds in First Union/Wachovia account #0410 provided insufficient evidence to
meet his burden of tracing the funds to his separate property.4 See Anderson, 29 Va. App. at
685-87, 514 S.E.2d at 375-76 (where the husband presented only a single account statement
when tracing funds over a nine-year period, holding that the trier of fact was “entitled to give no
4 The circuit court described the missing records as “a three[-]year black hole from 2001 to 2004” and said it could not conclude that the husband presented adequate evidence tracing the funds to his separate property “without . . . engaging in guesswork or speculation.” The court also noted that it “received no evidence as to the formation of [account #0410] or the source of the initial deposits” and “ha[d] only [the husband’s] testimony that the account consisted of his pre-marital salary and bonuses.” -5- weight to [the] husband’s testimony that the funds . . . were maintained as separate property,
particularly in the absence of documentary evidence”). Counsel for the husband conceded at the
evidentiary hearing that “[y]es, it comes down to [the husband’s] credibility,” but counsel argued
that “the math works.” (Emphasis added). The mere fact that the husband was able to prove that
he had pre-1999 earnings and bonuses in an amount sufficient to fund account #0410, the amount
he claims to have traced, was insufficient to meet his burden of proof. See Lee v. Lee, 13
Va. App. 118, 121-22, 408 S.E.2d 769, 770-71 (1991) (holding that the circuit court did not err
in classifying a certificate of deposit purchased in the husband’s name during the marriage as
marital property because no evidence supported his claim that he purchased it with separate
property in the form of his disability payments).
Consequently, the record supports the circuit court’s classification of Wells Fargo
accounts #5889 and #7913 as marital.
b. Debt and Valuation5
We next turn to the circuit court’s classification of the lien on Wells Fargo account #5889
and the impact of that classification on its valuation of the account.
The parties stipulated to the account balance and the amount of the lien against it, which
was in the form of a secured equity line. The husband’s financial consultant at Wells Fargo
testified that the note securing the lien was in the husband’s name.
The circuit court addressed the outstanding equity line balance separately from its
valuation and distribution of the account. It valued the account in accordance with the parties’
stipulation concerning the account balance, without considering the amount of the lien, and
ordered the account divided equally, awarding each party half the value of the balance.
Although it accepted the parties’ stipulation regarding the amount of the secured debt and
5 This section of the opinion addresses assignments of error 5, 7, 8, and 9. -6- classified the debt as marital, the court found that the parties had presented insufficient evidence
to permit it to determine whether the secured debt was jointly owned. It held under Code
§ 20-107.3(C) that in the absence of such evidence, it lacked the authority to divide the debt.
The court then stated that it would reach the same result even if it applied the presumption in
Code § 20-107.3(A)(2) that marital property is jointly owned because it would exercise its
discretion not to divide the debt.
The appellate court must reverse an equitable distribution award if it finds a
“misapplication or wrongful application of the equitable distribution statute.’” Wiencko, 62
Va. App. at 229-30, 745 S.E.2d at 174 (quoting McIlwain, 52 Va. App. at 661, 666 S.E.2d at
547). Code § 20-107.3 requires a court effecting an equitable distribution to proceed in an
orderly fashion: Specifically, it must (1) “classify the property,” (2) “assign a value” to the
property, and (3) “distribute the property to the parties, taking into consideration the factors
listed in Code § 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809,
812, adopted upon reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). Code § 20-107.3(E)
requires the circuit court, when distributing the marital property during the final phase of the
process, to consider the “debts and liabilities of each spouse, the basis for such debts and
liabilities, and the property which may serve as security for such debts and liabilities.” Code
§ 20-107.3(E)(7). “However, to the extent that a valid indebtedness which is secured creates an
encumbrance on the legal title” of marital property, we have held that this “indebtedness must be
considered” by the circuit court at an earlier stage in the process, when “determining the value of
the marital property.” Trivett v. Trivett, 7 Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)
(emphases added).
Applying these principles, we hold that the circuit court, before distributing Wells Fargo
account #5889, had to value the account properly by deducting the lien on the account—the
-7- secured debt owed on the equity line. Consequently, we reverse and remand to the circuit court
to correctly calculate the value of the account before dividing it. On remand, the court should
once again apply the subsection (E) factors to determine the distribution of the account. See
generally Gamer v. Gamer, 16 Va. App. 335, 344, 429 S.E.2d 618, 624-25 (1993) (“Each marital
asset is not necessarily entitled to be treated the same for purposes of equitable distribution. The
[circuit court] may determine, depending upon how the factors in Code § 20-107.3(E) are
applied, that certain marital assets should be divided and treated differently than others.”), quoted
with approval in Judd v. Judd, 53 Va. App. 578, 592, 673 S.E.2d 913, 919 (2009).
Based on our ruling that the court was required to deduct the amount of the secured debt
in determining the value of the property, we need not address the appellant’s argument in his
seventh assignment of error that the court misperceived the range of its authority regarding
division of the debt under Code § 20-107.3(C).
2. Line-of-Duty Disability Benefits
The husband challenges the circuit court’s classification of benefit payments that he
received called line-of-duty (LOD) payments. He received the LOD payments based on his
former employment as a professional athlete. The parties agree regarding the amount of Wells
Fargo account #5608 that comprises the LOD payments at issue.
The record contains a copy of the detailed official summary of the “Player Retirement
Plan.” The included cover letter states that the retirement plan provides eligible employees with
“pension and disability benefits,” as well as “survivor protection for [employees’] wives and
famil[ies].” The plan covers retirement benefits and disability benefits, and it defines disability
benefits to include both “total and permanent disability benefits” and “line-of-duty disability
benefits.” The plan’s vesting requirements, which are based primarily on an employee’s receipt
-8- of credits for being under contract for a certain number of seasons, cover all categories of
benefits.6
The “monthly retirement benefit” is calculated based on (1) the number of the
employee’s benefit credits for credited seasons, (2) age upon beginning to receive benefits, and
(3) the form chosen for those benefits. The plan lists the normal retirement age as fifty-five but
also permits early retirement and deferred retirement under certain circumstances.
Additionally, an employee who is not already receiving ordinary retirement benefits may
elect to receive disability benefits under the plan if he can prove either “permanent disability”
that is “total” or a lesser degree of permanent disability involving “substantial disablement,” as
defined in the plan. Permanent benefits for total disability may be paid for the duration of an
employee’s life. An employee who meets the lesser standard of “substantial disablement” is
eligible to receive LOD disability benefits, which are payable for up to ninety months. Finally, a
vested former employee who collects disability benefits remains entitled to “all other
(non-disability) Retirement Plan benefits” in addition to the disability benefits, “although [an
employee] cannot receive both a retirement benefit and a disability benefit for the same period of
time.”7
The husband’s LOD payments were deposited directly into one of his accounts. The
statement that he received each month to document the deposit, titled “Retirement Pl[an]” and
“Direct Deposit Summary,” specifically referenced the sum as “Pension.”
6 An employee also becomes vested if he qualifies for total and permanent disability payments. Finally, additional “special [vesting] rules” permit other employees to qualify for regular retirement benefits but not disability retirement. These rules are not applicable in this case. 7 The husband testified regarding how the LOD disability benefits and more traditional retirement benefits function under the plan. The circuit court, as the finder of fact, was not required to give any weight to his testimony, particularly in light of the presence of the plan summary booklet in the record. See, e.g., Layman, 62 Va. App. at 137, 742 S.E.2d at 891. -9- Code § 20-107.3(G)(1), in relevant part, relates to the division of the marital share of
“any pension . . . or retirement benefits.” Code § 20-107.3(G)(1) (emphasis added). It classifies
as marital all such benefits the right to which is earned during the marriage. See id. The
husband argues that the payments should instead be treated like a personal injury award under
Code § 20-107.3(H). Subsection (H), which addresses the treatment of both personal injury and
workers’ compensation awards, classifies as marital only the portion of the award attributable to
wages lost and medical expenses unreimbursed during the marriage. The husband asserts that
his LOD payments are not compensation for lost wages or unreimbursed medical expenses but,
rather, cover his pain and suffering for work-related injuries. Consequently, he contends that the
benefits were wholly separate property and that the circuit court erred in classifying them as
marital.
Classification of property is generally a question of fact and will not be reversed unless
“plainly wrong or without evidence to support it.” See Ranney, 45 Va. App. at 31-32, 608
S.E.2d at 492. However, the appellate court reviews the circuit court’s “statutory interpretations
and legal conclusions de novo.” Craig v. Craig, 59 Va. App. 527, 539, 721 S.E.2d 24, 29 (2012)
(quoting Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004)). Manifestly, “the
meaning of ‘any pension . . . or retirement benefits’” in Code § 20-107.3(G)(1) and what
payments are encompassed within the statute’s terms is “a question of law” reviewed de novo.
Navas, 43 Va. App. at 487, 599 S.E.2d at 480 (alteration in original). These same principles
apply to the scope of subsection (H). See id.
The circuit court ruled that the LOD payments are a retirement benefit subject to
distribution under Code § 20-107.3(G). In light of the statutory language as interpreted by this
Court in Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643 (2000), and Navas, 43 Va. App. 484,
- 10 - 599 S.E.2d 479, we agree with the circuit court and hold that the husband’s LOD disability
payments are “pension . . . or retirement benefits” under Code § 20-107.3(G)(1).
In Asgari, the husband was injured while working for a state agency and received
disability retirement benefits from the Virginia Retirement System (VRS). 33 Va. App. at 397,
533 S.E.2d at 645. Documentation from the VRS “specifically referenced” the benefits as “‘Line
of Duty Disability Retirement’ [that was] based upon” his years of service and salaries earned.
Id. The circuit court ruled that the husband’s disability retirement was marital property, and the
husband appealed. Id. at 400-01, 533 S.E.2d at 647.
On appeal, this Court reviewed the language of Code § 20-107.3(G)(1) and emphasized
the legislature’s “clear[] ‘inten[t] [that] all pensions’” be subject to equitable distribution
pursuant to the statute. Id. at 401, 533 S.E.2d at 647 (emphasis added) (quoting Sawyer v.
Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 280 (1985)). It highlighted the definition of a
pension as “a retirement benefit paid regularly, with the amount of such based generally on
length of employment and amount of wages or salary of [the] pensioner” and further described as
“deferred compensation for services rendered.” Id. (quoting Banagan v. Banagan, 17 Va. App.
321, 324, 437 S.E.2d 229, 230-31 (1993)). It reasoned that the “‘all inclusive language’” of
subsection (G)(1) “does not suggest the exclusion of ‘disability pensions.’” Navas, 43 Va. App.
at 488, 599 S.E.2d at 481 (quoting Asgari, 33 Va. App. at 401, 533 S.E.2d at 647). The Court
emphasized that the VRS benefit was “a function of [the husband’s] employment service,
average wages and age.” Asgari, 33 Va. App. at 402, 533 S.E.2d at 648. Finally, it recognized
that all documentation related to the benefit referenced it as “Retirement,” “Disability
Retirement,” or the “like” and “includ[ed] a designated ‘retirement date.’” Id. at 402, 533 S.E.2d
at 647-48. That the husband also had to prove an injury qualifying as a disability did not change
- 11 - the classification of the LOD payments as “a ‘pension’ or ‘retirement benefit’” under Code
§ 20-107.3(G). See id. at 401-02, 533 S.E.2d at 647-48.
The Court subsequently applied Asgari in Navas and again held that the wife was entitled
to a marital share of her husband’s disability retirement. 43 Va. App. at 488-89, 599 S.E.2d at
481-82. It noted that the divorce decree’s award to the wife of a portion of the marital share of
the husband’s pension encompassed all three ways the retirement plan set out for a vested
employee to receive benefits, including disability. Id. at 487, 599 S.E.2d at 480. The Court
further observed that the disability allowance was available under the plan to any employee who
suffered a qualifying disability “before becoming eligible for [regular retirement] benefits.” Id.
at 489, 599 S.E.2d at 481. Finally, it noted that the benefit was “calculated in the same way as
the normal retirement allowance” and “replace[d]” the benefit that the husband would later have
qualified to “receive[] had he not been injured.” Id. at 487, 489-90, 599 S.E.2d at 480-81.
The holdings in Asgari and Navas control the outcome in the instant case.8 Here, like in
Navas, the retirement plan’s terms set out multiple ways in which the husband was entitled to
receive benefits under the plan, including through regular retirement and disability. See Navas,
43 Va. App. at 487, 489-90, 599 S.E.2d at 480-81. The husband’s eligibility for the LOD
benefits, like the more traditional retirement benefits available under the plan, was based in part
8 At the time Asgari and Navas were decided, in 2000 and 2004 respectively, Code § 20-107.3(G) and (H) were both in existence. See 1990 Va. Acts ch. 636 (reflecting subsection (G) and the addition of subsection (H)). The statute has been amended seven times since this Court decided Asgari, yet the General Assembly has not modified it to negate the effect of Asgari or provide that line-of-duty disability benefits should be classified as a personal injury or workers’ compensation award under (H) rather than as a “pension . . . or retirement benefits” under (G). See 2004 Va. Acts chs. 654, 757; 2006 Va. Acts ch. 260; 2010 Va. Acts ch. 506; 2011 Va. Acts ch. 655; 2012 Va. Acts ch. 144; 2016 Va. Acts ch. 559; 2017 Va. Acts ch. 797; see also Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730 (2001) (“When the General Assembly acts in an area in which one of its appellate courts already has spoken, it is presumed to know the law as the court has stated it and to acquiesce therein, and if the legislature intends to countermand such appellate decision it must do so explicitly.”). - 12 - on credited seasons of service to his employer, and the method for calculating the amount of the
LOD benefits was similar to the method used for calculating retirement benefits under the plan,
just as in Asgari and Navas. See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; Asgari, 33
Va. App. at 401-02, 533 S.E.2d at 647-48. Further, the retirement plan did not permit the
husband to receive both traditional retirement and LOD disability benefits for the same period of
time. This fact supports the inference that the LOD benefits functioned like traditional
retirement benefits in terms of their wage replacement purpose. See Navas, 43 Va. App. at 490,
599 S.E.2d at 481-82. Additionally, like in Asgari, the benefits at issue were characterized as
line-of-duty disability payments, and the account statement that the husband received each
month to document the direct deposit of the benefits into his account specifically referenced the
sum as “Pension,” a category of benefits expressly covered by Code § 20-107.3(G)(1). See
Asgari, 33 Va. App. at 402, 533 S.E.2d at 647-48 (examining the “characterization” of the
benefits in the relevant documents).
The requirement that the husband prove a qualifying injury did not change the
classification of the LOD disability benefits as pension or retirement benefits under subsection
(G). See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; Asgari, 33 Va. App. at 401-02,
533 S.E.2d at 647-48. Finally, the fact that the benefits were available for only a finite period of
ninety months, after which the husband would be eligible to receive “regular” retirement benefits
- 13 - under the plan, does not change the nature of the benefits.9 Cf. Navas, 43 Va. App. at 490, 599
S.E.2d at 482 (noting the plan provision preventing an employee from receiving a disability
allowance “at the same time” as normal or early retirement under the plan).
Consequently, we hold that the circuit court did not err in classifying the husband’s LOD
disability benefits as marital property subject to equitable distribution.
B. Child and Spousal Support
With regard to the awards of child and spousal support, the husband asserts that the circuit
court erroneously calculated both parties’ incomes because it failed to account for the impact of the
equitable distribution award. Specifically, he argues that the court should have adjusted his income
downward and the wife’s income upward based upon the court’s award to her of 50% of two
Wells Fargo accounts, #5889 and #7913, in the equitable distribution ruling.
Virginia’s statutory scheme requires that the spouses’ respective incomes must be
calculated before a court may determine how much child and spousal support is owed and to
whom. See Code § 20-107.1(E)(1), -108.2(B)-(C). The relevant statutes also require the circuit
court to consider, either directly or indirectly, the “provisions made with regard to the marital
9 On this record, contrary to the husband’s suggestion, we need not consider persuasive authority from other jurisdictions because Virginia’s statutory scheme and existing case law resolve the issue. In any event, the holding in Wright v. Wright, 730 S.E.2d 218 (N.C. Ct. App. 2012), cited by the husband, is distinguishable. In deciding Johnson v. Johnson, 450 S.E.2d 923, 925-26 (N.C. Ct. App. 1994), subsequently relied upon in Wright, 730 S.E.2d at 220, the North Carolina Court of Appeals recognized a split of authority and “agree[d] with . . . states” classifying any portion of disability benefits that “compensate for disability” as separate property. This Court, by contrast, rejected a similar argument in Asgari and adopted a unitary approach to classifying disability retirement benefits. 33 Va. App. at 401-02, 533 S.E.2d at 647-48. We are bound by Asgari, not Johnson or Wright. - 14 - property under § 20-107.3” in effecting an equitable distribution of the marital estate.10 Code
§ 20-107.1(E)(8) (relating to spousal support); see Code § 20-108.2(C) (providing that “gross
income” for purposes of calculating child support “means all income from all sources,” including
dividends, interest, and capital gains); see also Code § 20-108.1(B)(12) (permitting a court to
deviate from the presumptive calculation under the child support guidelines where property
received by a parent in equitable distribution “earns income or has an income-earning
potential”). Accordingly, our ruling reversing the equitable distribution award and remanding
for additional proceedings requires that the circuit court, on remand, also revisit the awards of
child and spousal support. See Robinson v. Robinson, 46 Va. App. 652, 671, 621 S.E.2d 147,
156-57 (2005) (en banc).
C. Attorney’s Fees and Costs in the Circuit Court
The husband suggests that the circuit court errors he raises on appeal, as well as the other
issues that were resolved against the wife in that court, require the conclusion that the court
“abused its discretion in awarding [the wife] every single penny of her attorney’s fees and costs.”
He further claims that the court’s fee award was based on the “rationale that the fees were all a
result [of his] adulterous conduct” and that this rationale is not supported by the record.
If a divorce matter does not involve a property settlement agreement that “contain[s] a
provision governing a fee dispute, ‘[a]n award of attorney’s fees and costs “is a matter for the
trial court’s sound discretion after considering the circumstances and equities of the entire
case.”’” Jones v. Gates, 68 Va. App. 100, 105, 803 S.E.2d 361, 364 (2017) (quoting Mayer v.
10 The evidence indicates that in 2015, prior to the court’s order of division, the Wells Fargo accounts produced more than half of the income reflected on the husband’s income and expense statement. The record also appears to reflect that the court calculated the husband’s income for purposes of child and spousal support without adjusting the figures on that exhibit. It further appears that the court used an income figure for the wife that included only the employment income that it imputed to her. - 15 - Corso-Mayer, 62 Va. App. 713, 731, 753 S.E.2d 263, 272 (2014)). “Such decision ‘is
reviewable on appeal only for an abuse of discretion.’” Id. (quoting Graves v. Graves, 4
Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). As with any other issue, this Court must defer
to any findings of fact underpinning the circuit court’s award of fees and costs. See C.S. v. Va.
Beach Dep’t of Soc. Servs., 41 Va. App. 557, 566, 586 S.E.2d 884, 888 (2003); see also Green v.
Va. State Bar ex rel. Seventh Dist. Comm., 274 Va. 775, 789, 652 S.E.2d 118, 125 (2007)
(stating that “factual findings [are] given ‘substantial weight’ under [an] abuse of discretion
standard” (quoting Blue v. Seventh Dis. Comm., 220 Va. 1056, 1061-62, 265 S.E.2d 753, 756-57
(1980))).
The record, so viewed, supports the circuit court’s award of fees and costs and does not
support the husband’s claim that the court found that the basis for all the fees and costs was “a
result [of the husband’s] adulterous conduct.” Rather, the court relied on the husband’s adultery
only indirectly, in a manner that did not constitute an abuse of discretion.
The court noted first the fact that the husband had both “vastly more income” than the
wife and vastly more earning potential. This finding is supported by the record, which indicates
that the husband has a college degree and continues to earn appearance fees based on his former
career as a professional athlete. The wife, by contrast, never finished college, worked at
relatively low-wage jobs, and did so for only a small portion of the marriage.
The circuit court also found that the wife had little knowledge about the family’s finances
during the marriage and, consequently, had to “incur many expenses in order to prepare and
argue for her equitable share.” The court further found that the husband’s “adulterous conduct,”
which the evidence established occurred repeatedly throughout the marriage, “destroyed [the
wife’s] trust in him.” Finally, the court found that the wife’s questioning of the husband’s
“forthrightness” regarding finances in the divorce litigation was “the logical, reasonable, and
- 16 - understandable reaction to [his] adulterous conduct” and that “the [in]escapable consequence of
such conduct [was] incurring attorney’s fees.”
The court’s rationale for awarding fees and costs and its underlying findings of fact
indicate that the award did not stem from the adultery itself and was not an abuse of discretion.
D. Attorney’s Fees and Costs on Appeal
Each party seeks an award of attorney’s fees and costs on appeal. Pursuant to Rule
5A:30, in specified cases in which attorney’s fees are recoverable under Title 20 of the Code of
Virginia, the Court of Appeals “may award” some or all of the fees requested or “remand the
issue to the circuit court . . . for a determination thereof.” Rule 5A:30(b)(1), (2). Whether to
award fees is discretionary. See id.; Harper v. Va. Dep’t of Tax’n, 250 Va. 184, 194, 462 S.E.2d
892, 898 (1995). In determining whether to make such an award, the Court may consider factors
including whether the requesting party has prevailed, whether the appeal was “fairly debatable”
or frivolous, whether either party “generated unnecessary delay or expense” in pursuing his or
her interests, and whether other reasons exist to support an award of attorney’s fees and costs.
See Rule 5A:30(b)(3), (4); Brandau v. Brandau, 52 Va. App. 632, 642, 666 S.E.2d 532, 538
(2008); Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004);
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In addition, Rule
5A:30(b)(3) specifically directs this Court to “consider all the equities of the case.”
Considering all the factors set out in Rule 5A:30 and the applicable case law, we see no
reason that either the husband or the wife should be required to pay the other party’s attorney’s
fees and costs in this case. Accordingly, in the exercise of our discretion, we decline to make an
award of attorney’s fees and costs to either party. See, e.g., Wright v. Wright, 61 Va. App. 432,
470, 737 S.E.2d 519, 537-38 (2013).
- 17 - III. CONCLUSION
In sum, we affirm the circuit court’s classification of Wells Fargo accounts #5889 and
#7913 as marital, including its finding that the husband failed to trace the funds in the accounts
to his separate property. We also affirm the court’s conclusion that the husband’s LOD disability
benefits constituted fully divisible pension or retirement benefits rather than a personal injury
award with a separate component. We hold that the court erred by failing to subtract the lien on
Wells Fargo account #5889 in order to value the account before distributing it between the
parties. Consequently, we reverse on this aspect of the equitable distribution ruling and remand
for a redetermination of valuation and division. Additionally, because the circuit court must
correct its equitable distribution award, it must also consider on remand any necessary
adjustments to its child and spousal support awards in light of the adjustment in the equitable
distribution. Regarding the circuit court’s award to the wife of her attorney’s fees and costs in
that court, the circuit court’s findings of fact, which are not plainly wrong, establish that it did
not abuse its discretion by making that award. Finally, we deny the parties’ requests for
attorney’s fees and costs in this appeal.
Affirmed in part and reversed and remanded in part.
- 18 -