Gregory Shaffer v. Linda Shaffer

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia

GREGORY SHAFFER
MEMORANDUM OPINION * BY
v. Record No. 3329-02-4 JUDGE D. ARTHUR KELSEY
JULY 29, 2003
LINDA SHAFFER

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge

Stephen D. Quatannens for appellant.

Lawrence D. Diehl for appellee.

Asserting twenty-nine assignments of error, Gregory Shaffer

challenges the grounds upon which the trial court granted his

wife a divorce, the award of sole legal custody of his children

to his wife, the award of spousal and child support, the

equitable distribution award, and the award to his wife of

attorney's fees incurred in the trial court.

The chancellor addressed each of these issues in a

comprehensive letter opinion. Finding no error in the trial

court's analysis or its holdings, we affirm. Because many of

husband's arguments have little or no legal merit, we grant

wife's request for attorney's fees on appeal and remand this

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
matter to the trial court to review the reasonableness of her

requested amount.

I.

When reviewing a chancellor's decision on appeal, we view

the evidence in the light most favorable to the prevailing

party, granting her the benefit of any reasonable inferences.

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835

(2003). "That principle requires us to discard the evidence of

the appellant which conflicts, either directly or inferentially,

with the evidence presented by the appellee at trial." Id.

(citations and internal quotations omitted).

Gregory ("husband") and Linda Shaffer ("wife") married on

September 30, 1989. The couple had two daughters, born in 1991

and 1994. Wife quit her job as a sales manager after she and

husband agreed that she would be a stay-home mother and the

"primary caretaker for the children."

In 1993, upon returning from a business trip to Ohio,

husband admitted to wife that he had been "in bed" with a woman

he met in a bar. Husband denied, however, having intercourse

with the woman. Husband also promised never again to be

unfaithful. Wife forgave husband, but made clear to him that

"the marriage would not survive another incident of infidelity."

In 1995, husband accepted a new job that involved extensive

domestic and international travel. "He was hardly ever home,"

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wife recalled. During this period, wife maintained the

household and raised the children.

After returning from a trip in March 2000, husband

announced that he did not "know if I want to be married anymore,

marriage is boring." To liven the relationship, husband

suggested, the couple should "go out to bars and go dancing and

get drunk." Husband also complained that wife did not do enough

to stimulate him sexually or to "keep things exciting." Hearing

this news, wife felt emotionally "devastated."

Husband left on another trip, this time to Pakistan. After

his return, husband admitted that he had "committed adultery"

with numerous women for a "long time." Included in his

indiscretions were sexual relations with "a nurse," "a patient,"

"another nurse," and, when on trips, at least four women he met

in bars. 1 In later conversations, husband also confessed to at

least "three or four" of the affairs to Nancy Pcsolyar, a

neighbor, and also admitted his infidelity to Rev. Ronald

Melton.

In addition, husband told wife that he had never used a

condom or any other type of protection to guard against the

transmission of sexually-transmitted diseases to wife, with whom

he was also sexually active during the period of his adulteries.

1
In his appeal brief, husband admits that "the parties had
a conversation in which Mr. Shaffer informed his wife that he
had had sexual intercourse with other women since 1993."

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"Totally numb" upon hearing this news, wife felt like her

"entire life ha[d] been turned upside down." She particularly

feared for her health, given the risk of contracting a sexually

transmitted disease from her promiscuous husband. Wife stood by

"in a state of shock" as husband then packed his belongings and

moved out of the home.

A few months later, husband asked if wife would forgive him

and consent to him moving back into the marital home. Wife

asked him directly if he would "give up his adulterous

lifestyle." Husband said he would not. Under such

circumstances, wife testified, she would not agree to condone

husband's infidelities and to resume cohabitation with him.

During the period of separation, husband continued to

display aberrant behavior. He broke into wife's car while she

was at a restaurant and, after initially denying that he did so,

admitted tearing pages out of wife's journals left in her car.

He also entered the home while wife was away and placed items of

lingerie on wife's bed —— which wife interpreted as a mocking

and offensive gesture.

Husband also treated his young children poorly. "Many

times," wife testified, he yelled at her in front of the

children, including one episode where he called her "an F'ing B"

in their presence. In addition, despite a court order

forbidding him from doing so, husband exposed his young

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daughters to his girlfriend —— resulting in a contempt of court

conviction. And on two occasions, husband forfeited his

opportunity for visitation with his daughters so he could

vacation with a paramour.

The trial court awarded wife a divorce based on husband's

cruelty and constructive desertion. The chancellor also awarded

wife sole legal and physical custody of the children, spousal

support at $2,000 a month, and child support at $824.52 a month.

In the equitable distribution award, the chancellor transferred

the marital home to wife and allowed husband to retain

substantial funds within his retirement accounts. Husband filed

forty-nine exceptions to the final decree.

II.

Rule 5A:20(e) requires the appellant's brief to include,

among other things, the "principles of law, the argument, and

the authorities relating to each question presented."

Statements unsupported by "argument, authority, or citations to

the record" do not merit appellate consideration. Thomas v.

Commonwealth, 38 Va. App. 319, 321 n.1, 563 S.E.2d 406, 407 n.1

(2002); Dickerson v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d

230, 234 (2001); Bennett v. Commonwealth, 35 Va. App. 442, 452,

546 S.E.2d 209, 213 (2001); Buchanan v. Buchanan, 14 Va. App.

53, 56, 415 S.E.2d 237, 239 (1992).

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 Husband asserts on appeal twenty-nine assignments of error.

On questions 6, 9, 10, 11, 12, 13, 14, 19, 20, 21, 22, 23, 24,

25, 26, 27, and 28, husband's brief provides inadequate citation

either to the record or to supporting principles of law.

Instead, on these points, husband's brief addresses the subject

in a cursory, perfunctory manner. Rule 5A:20(e) precludes our

review of these issues in the face of such an inadequate attempt

at appellate advocacy.

III.

A.

On the issues that remain, we begin our analysis by

restating basic principles governing the standard of appellate

review —— a subject that intersects nearly every argument

husband makes in this appeal.

"Under Code § 8.01-680, a factual determination cannot be

reversed on appeal unless 'plainly wrong or without evidence to

support it.'" Congdon, 40 Va. App. at 261, 578 S.E.2d at 836

(citation omitted); Torian v. Torian, 38 Va. App. 167, 181, 562

S.E.2d 355, 362 (2002). This standard applies to a trial

court's decision regarding divorce, Hughes v. Hughes, 33

Va. App. 141, 145-46, 531 S.E.2d 645, 647 (2000), child custody

and visitation, Albert v. Albert, 38 Va. App. 284, 294, 563

S.E.2d 389, 394 (2002), spousal support, Congdon, 40 Va. App. at

261, 578 S.E.2d at 836, child support, Joynes v. Payne, 36

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Va. App. 401, 424, 551 S.E.2d 10, 21 (2001), equitable

distribution, Thomas v. Thomas, 40 Va. App. 639, 644, 580 S.E.2d

503, 505 (2003), and attorney's fees, Northcutt v. Northcutt, 39

Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002). Under this

standard, we do not "retry the facts or substitute our view of

the facts for those of the trial court." Congdon, 40 Va. App.

at 266, 578 S.E.2d at 838 (citation omitted).

Moreover, we will overturn a decision committed to the

chancellor's sound discretion only upon a showing that she

abused that discretion. An abuse of discretion can be found if

the trial court uses "an improper legal standard in exercising

its discretionary function" or fails "to consider the statutory

factors required to be part of the decisionmaking process." Id.

(citation and internal quotation marks omitted).

B.

Husband challenges the grounds upon which the chancellor

granted wife a final divorce. The trial court erred, husband

argues, by finding him guilty of cruelty and constructive

desertion and by not finding wife guilty of desertion in

"barring Mr. Shaffer's return to the residence" after he decided

he wanted to come home. In the alternative, husband contends

that the trial court should have granted the divorce on no-fault

grounds pursuant to Code § 20-91(9)(a). We disagree with each

of these assertions.

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 Cruelty consists of "anything that tends to bodily harm and

thus renders cohabitation unsafe" or "involves danger of life,

limb or health." Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342

S.E.2d 658, 662 (1986) (quoting Latham v. Latham, 71 Va. (30

Gratt.) 307, 320-22 (1878)). Constructive desertion occurs

"where the conduct of the other spouse has caused conditions in

the marital home to be intolerable" to the point that the

affected spouse has to leave. Gottlieb v. Gottlieb, 19 Va. App.

77, 82, 448 S.E.2d 666, 669 (1994) (quoting Kerr v. Kerr, 6

Va. App. 620, 623, 371 S.E.2d 30, 32 (1988)).

The chancellor did not plainly err in finding husband

guilty of cruelty and constructive desertion. By engaging in

sexual intercourse with multiple paramours without any form of

protection against sexually transmitted diseases, and then

continuing to have sex with his unsuspecting wife, husband

rendered "cohabitation unsafe" for cruelty purposes, Zinkhan, 2

Va. App. at 208, 342 S.E.2d at 662 (citation omitted), and

palpably "intolerable" for constructive desertion purposes,

Gottlieb, 19 Va. App. at 82, 448 S.E.2d at 669 (citation

omitted). To deny wife a divorce on this ground would be

tantamount to placing upon her the legal duty to remain married

(subject to conjugal obligations) to a man who, through numerous

adulteries, put her at risk of sexually-contracted diseases and

whose behavior —— based on his own admission —— strongly

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suggested he would continue to do so in the future. Knowingly

placing a spouse at risk of an HIV infection or some other

sexual contagion is a cruelty the law does not require the

innocent spouse to tolerate.

We also find meritless husband's assertion that his sexual

infidelities "were not proven sufficiently by the evidence."

Under oath before the commissioner, husband admitted confessing

to wife that he "had sexual relations with other women during

[the] marriage." Wife provided further details about her

husband's confession, including that they had been going on "for

a long time" and with many sexual partners. Husband's

admissions to his neighbor and his pastor likewise corroborate

wife's testimony. The evidence, therefore, provides ample

support for the predicate finding of adultery underlying the

chancellor's cruelty and constructive desertion holding. See,

e.g., Watts v. Watts, 40 Va. App. 685, 689-90, 581 S.E.2d 224,

226-27 (2003) (surveying cases addressing sufficiency of the

evidence proving adultery). 2

2
We also reject husband's assertion that his various
admissions used to support the cruelty and constructive
desertion grounds were not corroborated by other evidence in the
case. Husband's contention "fails to distinguish evidence
sufficient to prove adultery where the offending spouse denies
it from evidence sufficient to corroborate an admission of
adultery under oath by the offending spouse." Pommerenke v.
Pommerenke, 7 Va. App. 241, 245, 372 S.E.2d 630, 632 (1988).
Where, as here, an admission under oath occurs, only "slight
corroboration of adultery" is necessary. Id. Husband's
admissions to Nancy Pcsolyar of "three or four" adulterous

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 For similar reasons, the chancellor did not err in refusing

to find wife guilty of desertion because she refused husband's

request for cohabitation after he left the marital home. Actual

desertion requires both an "actual breaking off of the marital

cohabitation" and an "intent to desert in the mind of the

offender." Gottlieb, 19 Va. App. at 83, 448 S.E.2d at 670.

Wife's refusal to continue cohabitation with husband after her

discovery of his conduct —— coupled with her credible belief

that he would not change and, to be sure, his announced refusal

to change —— does not constitute desertion. That is

particularly true given the chancellor's finding of cruelty and

constructive desertion on husband's part. See, e.g., Seemann v.

Seemann, 233 Va. 290, 296, 355 S.E.2d 884, 888 (1987) ("Even if

[husband's] conduct did not amount to cruelty, the trial court

properly could conclude that his conduct was the 'provoking

cause' for her leaving the home."); Gottlieb, 19 Va. App. at 83,

448 S.E.2d at 670 ("Wife's evidence proved that she left the

affairs meets this slight burden. Moreover, every "element or
essential charge need not be corroborated, nor must the
corroborating evidence, standing alone, prove the grounds for
divorce, but corroboration must give sufficient strength to the
complainant's testimony to be clearly worthy of belief." Bchara
v. Bchara, 38 Va. App. 302, 312, 563 S.E.2d 398, 403 (2002)
(quoting Emrich v. Emrich, 9 Va. App. 288, 296, 387 S.E.2d 274,
278 (1989)).

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marital home because she reasonably believed her health was

endangered by remaining, and she unsuccessfully tried less

drastic measures to eliminate the danger."). Reasons to refuse

cohabitation "other than an intent to desert may justify

discontinuance of the relationship without giving rise to

grounds for divorce." D'Auria v. D'Auria, 1 Va. App. 455, 459,

340 S.E.2d 164, 166 (1986). 3

We also disagree that husband had a right to a divorce on

no-fault grounds. In cases "where a court has a choice between

a cause of action for a 'no fault' divorce and a cause seeking

to fix fault," nothing in Virginia law states that "the cause

without fault to either party should be chosen." Robertson v.

Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43 (1975). Virginia

law does not require courts to "give precedence" to no-fault

grounds over fault grounds. Id. Instead, when a trial court

faces "dual or multiple grounds for divorce," it can exercise

its own discretion in selecting the ground upon which to grant

the divorce. Sargent v. Sargent, 20 Va. App. 694, 707, 460

S.E.2d 596, 602 (1995). In our case, therefore, while the

3
See, e.g., Breschel v. Breschel, 221 Va. 208, 212, 269
S.E.2d 363, 366 (1980) (concluding that wife who left because
she reasonably believed continued cohabitation endangered her
health was free from legal fault); Capps v. Capps, 216 Va. 382,
385, 219 S.E.2d 898, 900 (1975) (recognizing that wife, who left
the marital home after a single act of physical abuse, was free
from legal fault even though husband's abuse did not amount to
cruelty as a fault ground).

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chancellor could have granted a divorce based on a one-year

separation, see Bchara v. Bchara, 38 Va. App. 302, 310, 563

S.E.2d 398, 402 (2002), she also had the discretion not to.

C.

Husband next challenges the chancellor's decision to award

sole legal custody to wife. Finding that the trial court

properly exercised its statutory authority, we affirm.

Code § 20-124.3 lists various factors the trial court must

consider in making custody and visitation decisions. See

generally Joynes, 36 Va. App. at 416, 551 S.E.2d at 17. Though

the trial court must consider each factor, "it is not required

to quantify or elaborate exactly what weight or consideration it

has given to each of the statutory factors." Sullivan v. Knick,

38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002) (quoting

Sargent, 20 Va. App. at 702, 460 S.E.2d at 599). So long as the

chancellor considers the statutory factors, we will not reverse

her decision absent an abuse of discretion. Id.

In this case, the chancellor found that husband displayed

an "inability to accurately assess the emotional needs of the

children." After announcing to the children that "he did not

want to be married to their mother any more," husband did little

to address their emotionally "hysterical" reaction. He only

made things worse by calling their mother a "F'ing B" in their

presence, declining visitation with them so he could vacation

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with his latest paramour, and contemptuously violating a court

order forbidding him from exposing his children to his

paramours. Given the wife's history of faithful parenting and

husband's history of placing his own interests ahead of his

children's, the chancellor did not abuse her discretion by

finding that the best interests of the children favored an award

of sole legal custody to wife.

D.

Husband's disagreement with the trial court's decision to

award spousal support can be grouped into two categories. 4 The

first involves a challenge to the trial court's "assessment and

application of factors pursuant to § 20-107.1 in awarding

complainant spousal support." The second challenges the trial

court's refusal, at husband's insistence, to impute income to

wife on the ground that she was voluntarily underemployed. We

find no merit in either contention.

4
Husband waived arguments regarding spousal support
asserting that the trial court erred: (i) by "allowing the
introduction of opinion evidence of Larry Stone," who testified
regarding wife's earning potential in her business; (ii) in its
"findings as to complainant's income"; (iii) by not "awarding
spousal support for a limited term of years"; (iv) by not
"adequately considering the ability or inability" of husband to
pay the award; (v) by "failing to note the unnecessary and
inflated nature" of wife's expenditures; (vi) for "not modifying
the spousal support and child support awards after the court
significantly revised" wife's income; and (vii) by allowing its
error in spousal support determination to carry over into its
child support determination. See Rule 5A:20(e).

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 Following the dissolution of a marriage, the trial court

"may make such further decree as it shall deem expedient

concerning the maintenance and support of the spouses." Code

§ 20-107.1(A). Crafting an appropriate award requires the

chancellor to consider the factors outlined in Code

§ 20-107.1(E). See Wright v. Wright, 38 Va. App. 394, 404, 564

S.E.2d 702, 707 (2002). "Whether and how much spousal support

will be awarded is a matter of discretion for the trial court."

Congdon, 40 Va. App. at 262, 578 S.E.2d at 836 (quoting

Northcutt, 39 Va. App. at 196, 571 S.E.2d at 914). Thus, "in

fixing spousal support, a trial court has broad discretion which

should not be interfered with by an appellate court unless it is

clear that some injustice has been done." Joynes, 36 Va. App.

at 423, 551 S.E.2d at 21 (citation omitted).

In this case, the evidence showed a disparity in earnings

between the wife and husband. In addition, wife's going-forward

expenses now include the mortgage and other financial

responsibilities of home ownership, while husband's on-going

living expenses are being defrayed by his live-in girlfriend.

The chancellor also took into account wife's legitimate interest

in the "high standard of living" she had enjoyed during the

marriage. Each of these findings corresponds to various

statutory factors listed in Code § 20-107.1. We find no abuse

of discretion in this reasoning.

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 We also disagree that the chancellor erred in not imputing

income to wife because of her alleged underemployment.

Imputation of income requires proof that "the other parent was

voluntarily foregoing more gainful employment, either by

producing evidence of a higher-paying former job or by showing

that more lucrative work was currently available." Mir v. Mir,

39 Va. App. 119, 128, 571 S.E.2d 299, 304 (2002). The burden of

proof rests on the party asserting the imputation. Albert, 38

Va. App. at 295, 563 S.E.2d at 395. "The evidence must be

sufficient to 'enable the trial judge reasonably to project what

amount could be anticipated.'" Id. (quoting Hur v. Va. Dept. of

Soc. Servs. Div. of Child Support Enforcement ex rel. Klopp, 13

Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)).

The chancellor did not plainly err in finding that husband

failed to carry the burden of persuasion on this issue. The

chancellor found husband's evidence speculative and accepted

wife's testimony that her business, a portrait studio, faced a

potentially bright future. Nor did any evidence refute wife's

belief that her flexible self-employment allowed her to

"schedule her business appointments around her children's

schedules" and thus provide much needed "regularity and

stability" to her still-emotionally fragile children. For these

reasons, the chancellor did not plainly err in finding that

husband did not carry his burden of proof on this issue.

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 E.

Husband also argues that the trial court "erred in the

assessment and application of factors pursuant to § 20-108.1 in

awarding complainant $824.52 in monthly child support." 5 He

again argues that the chancellor erred by not imputing income to

wife, a contention we reject. Beyond that, husband makes a

generalized attack on the calculation of child support. We

reject husband's argument and find the award consistent with

Code § 20-108.1's statutory factors and the overarching policy

of reinforcing the "best interest of the child or children."

Shoup v. Shoup, 37 Va. App. 240, 249, 556 S.E.2d 783, 787

(2001); see also Mir, 39 Va. App. at 130, 571 S.E.2d at 305

(recognizing the rebuttable presumption that the court's award

"is the correct amount of child support to be awarded").

F.

Husband raises two questions concerning the trial court's

equitable distribution determination. 6 First, he argues that the

5
Rule 5A:20(e) bars husband's argument that the trial court
"erred and was plainly wrong in the award of life insurance
coverage to the children."
6
Once again, husband's failure to comply with Rule 5A:20(e)
bars his arguments that the trial court erred by (i) "not
requiring the complainant to refinance the indebtedness on the
marital residence within a specified period of time"; (ii) in
accepting wife's proposed division of the household furnishings
over husband's proposed division; (iii) in its valuation of his
Pfizer IRA; (iv) in its valuation of his FBI retirement account;
(v) in its "findings as to the source of funds in the marital

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chancellor misapplied the statutory factors in Code

§ 20-107.3(E) by considering his marital fault without first

finding whether it had a pecuniary impact on the value of

marital assets. Second, husband contends that the chancellor

abused her discretion in awarding wife the marital home. We

disagree with both assertions.

Husband's first argument overlooks settled law. As we

recently reaffirmed, consideration of "nonmonetary contributions

to the well being of the family under Code § 20-107.3(E)(1)

requires no showing of an adverse economic impact. In that

context, the 'well-being' of the family relates to the effect on

the family's emotional welfare and condition." Watts v. Watts,

40 Va. App. 685, 699, 581 S.E.2d 224, 231 (2003); see also

Barker v. Barker, 27 Va. App. 519, 540, 500 S.E.2d 240, 250

(1998); O’Loughlin v. O’Loughlin, 20 Va. App. 522, 528, 458

S.E.2d 323, 326 (1995). 7 Nor does the statute require a

pecuniary impact on marital property when considering how

savings account" and its subsequent division; (vi) in finding
that wife did not dissipate "assets of the marital estate"; and,
(vii) in "designating complainant irrevocable beneficiary to all
or a portion of defendant's survivor annuity plan."
7
In this case, the chancellor predicated the divorce on
husband's cruelty and constructive desertion. For equitable
distribution purposes, however, the trial court may consider
facts demonstrating marital fault outside the parameters of the
fault ground for the a vinculo divorce. See Cousins v. Cousins,
5 Va. App. 156, 158-59, 360 S.E.2d 882, 884 (1987); Bacon v.
Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 41 (1986); Bentz v.
Bentz, 2 Va. App. 486, 488, 345 S.E.2d 773, 774 (1986).

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marital fault has affected the "mental condition" of a spouse

under Code § 20-107.3(E)(4). Watts, 40 Va. App. at 698, 581

S.E.2d at 231; see also Smith v. Smith, 18 Va. App. 427, 431,

444 S.E.2d 269, 273 (1994).

The evidence before the chancellor demonstrated an acutely

negative impact of husband's conduct on the "well-being of the

family," Code § 20-107.3(E)(1), and on the "mental condition" of

his wife, Code § 20-107.3(E)(4). For all intents and purposes,

the "well-being" of the family ceased to exist as a direct

consequence of husband's serial adulterous relationships and his

announced desire to be done with the marriage. Describing this

conduct as a negative non-monetary contribution to the

well-being of the family is, at best, euphemistic.

In addition, the chancellor found that wife "began to

suffer physically and emotionally." The husband's conduct left

his wife "totally numb," "emotionally bankrupt," and in a "state

of shock" and "total devastation." She stayed in counseling and

under anti-anxiety medication up until the time of trial. The

children also "exhibited physical and emotional problems

attributable to the breakup of the family." Both required

extensive counseling. One suffered from "fears and anxiety"

severe enough to cause sleeping disorders. The other

experienced elevated "stress" and "fainting spells" at school

requiring treatment at a local hospital emergency room.

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 In contrast, the chancellor found compelling wife's

positive non-monetary contributions to the well-being of the

family. As the chancellor noted, wife "sacrificed her career

for the well being of the family" by ceasing to work "outside of

the home" shortly before the birth of her first child. She

"became the primary caretaker of the children." Wife's

recognized "abilities as a homemaker" greatly enhanced the value

of each of the parties' three marital residences. And much of

husband's financial success, the chancellor found, was

positively influenced by wife's faithful support of his

professional endeavors.

The chancellor, therefore, did not misapply the equitable

distribution factors in Code § 20-107.3(E). The evidence amply

supports the chancellor's finding that husband's fault was

severely detrimental to the "well-being of the family," Code

§ 20-107.3(E)(1), and the "mental condition" of the parties,

Code § 20-107.3(E)(4).

Husband's second argument, that the chancellor erred in

awarding the marital home to wife, also fails. Equitable

distribution does not mean equal distribution. In adopting the

equitable distribution model, the General Assembly "expressly

rejected any presumption in favor of an equal distribution of

marital property." Papuchis v. Papuchis, 2 Va. App. 130, 132,

341 S.E.2d 829, 831 (1986) (quoting Report of Joint Subcommittee

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Studying Code § 20-107, House Doc. No. 21, at 8 (1982)).

"Instead, a trial court considers the factors in Code

§ 20-107.3, to make a decision regarding division of marital

property." Shackleford v. Shackleford, 39 Va. App. 201, 211,

571 S.E.2d 917, 922 (2002).

In this case, the chancellor considered each of the

statutory factors, including the contributions (both positive

and negative) to the "well-being of the family," Code

§ 20-107.3(E)(1), and the "mental condition of the parties,"

Code § 20-107.3(E)(4). The evidence showed that the children

had lived in the home with their mother and that she operated

her business from this location. The factual predicates for the

chancellor's decision are valid, and her exercise of discretion

sound. We thus find no error in this aspect of the equitable

distribution award. 8

G.

We also find no merit in husband's challenge to the

chancellor's award of wife's attorney's fees against him.

Whether to award attorney's fees "is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

8
Husband waived his final two equitable distribution
arguments, which claimed that the court erred by (i) "denying
the direct examination of complainant by defendant in his
case-in-chief"; and (ii) not factoring the attorney's fee into
his assets and liabilities when determining an appropriate level
of child and spousal support. See Rule 5A:20(e).

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only for an abuse of discretion." Northcutt, 39 Va. App. at

199-200, 571 S.E.2d at 916 (quoting Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987)) (internal quotation marks

omitted). Because each case presents its own unique set of

equities, principles of appellate review steer clear of

inflexible rules and focus instead on "reasonableness under all

the circumstances." Joynes, 36 Va. App. at 429, 551 S.E.2d at

24.

The chancellor awarded a portion of wife's attorney's fees

($15,000) against husband. 9 We find this decision well within

the trial court's discretion for two reasons. First, as the

chancellor found, the evidence lays the blame for the demise of

this marriage squarely on husband's shoulders. It is entirely

fair that he, as the party causing the need for this litigation,

should contribute toward the transactional cost of the legal

proceedings. Second, the record also reflects that husband's

strategy of contesting nearly every point, irrespective of the

objective merits of his position, unnecessarily increased the

cost of this litigation. These observations amply justify the

chancellor's decision to require husband to pay $15,000 of

wife's attorney's fees.

9
Husband includes his challenge to the fee award within a
question presented numbered "28 & 29." Because the argument
appears in the second half of the dual-question, for clarity
sake, we will treat the attorney's fee issue as question 29.

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 H.

Finally, we turn to the question of attorney's fees on

appeal. "The appellate court has the opportunity to view the

record in its entirety and determine whether the appeal is

frivolous or whether other reasons exist for requiring

additional payment." O'Loughlin v. O'Loughlin, 23 Va. App. 690,

695, 479 S.E.2d 98, 100 (1996). From our unique vantage point,

we can examine the arguments on appeal not merely in the

abstract, but also as they fit within the course of conduct

shown in the trial court.

Wife seeks fees in this case, arguing that many of

husband's assertions on appeal are "clearly without foundation

in law or fact." We agree. Husband raised twenty-nine

assignments of error —— all of which he either failed to brief

adequately or failed to analyze properly under the governing

standard of review. The substance of his arguments, as well as

the manner of their presentation, fall well below our

expectations. See Gottlieb, 19 Va. App. at 95, 448 S.E.2d at

677 (awarding appellate fees where "[m]any of husband's

questions presented or assignments of error were not supported

by the law or the evidence"). 10 We view husband's appellate

10
See also Marks v. Marks, 36 Va. App. 216, 231, 548 S.E.2d
919, 926 (2001) (awarding "reasonable expenses incurred in
defending this unjustified appeal"); Taylor v. Taylor, 27
Va. App. 209, 218, 497 S.E.2d 916, 920 (1998) (remanding to

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arguments as little more than a continuation of the performance

that led to the award of fees against him in the trial court.

For these reasons, we award wife all attorney's fees

incurred on appeal and remand to the trial court the task of

ensuring that the amount requested is reasonable. 11

IV.

In sum, we affirm the chancellor's decisions on the grounds

of divorce, spousal support, child support, equitable

distribution, and liability for attorney's fees in the trial

court. We grant wife's request for attorney's fees on appeal

and remand this matter to the chancellor to calculate the

amount.

Affirmed and
remanded.

trial court calculation of "counsel fees incurred in this
appeal"); Johnson v. Johnson, 26 Va. App. 135, 154, 493 S.E.2d
668, 677 (1997) (remanding for award of "counsel fees incurred
by father in this appeal"); Via v. Via, 14 Va. App. 868, 873,
419 S.E.2d 431, 434 (1992) (ordering trial court to "enter an
appropriate award of attorney's fees for services rendered to
[wife] in the trial court, as well as on appeal").
11
In his reply brief on appeal, husband seeks an award of
attorney's fees against wife. We deny that request.

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