Stacey W. Beck v. Joseph E. Beck, III

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Lemons*
Argued at Richmond, Virginia

STACEY W. BECK
MEMORANDUM OPINION ** BY
v. Record No. 1082-99-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 19, 2000
JOSEPH E. BECK, III

FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge

Barbara S. Picard (Cawthorn, Picard & Rowe,
P.C., on brief), for appellant.

(Joseph E. Beck, III, pro se, on brief).
Appellee submitting on brief.

Stacey W. Beck (wife) appeals the trial court's equitable

distribution and spousal support awards. On appeal, wife argues

that the trial court erred in: (1) finding that she made a gift

to husband of her separate funds that were used to purchase and

refinance the marital home and that were placed in investment

accounts; (2) making an unequal division of the parties'

retirement plans; (3) refusing to award her spousal support;

(4) failing to impute $90,000 annual salary to husband for

*
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
purposes of calculating child support; (5) failing to find that

husband committed waste in regard to a $26,000 bonus husband

received during the marriage and the $8,000 he received from the

sale of the parties' vehicle, a marital asset; and (6) failing

to award her attorney's fees. For the reasons that follow, we

affirm in part, reverse in part, and remand.

I. BACKGROUND

The Becks were married in October 1988 and separated in

December 1996. They were divorced by final decree in September

1998. In April 1999, the circuit court entered its equitable

distribution and spousal support decree. When the parties

separated, they had two young sons, ages three and two, and wife

was pregnant with their third child. Shortly after they

separated, wife moved to Pennsylvania to be near her family. At

that time, husband told wife that while she was not living in

the marital home he would live there. However, after several

months, husband left the home and moved into an apartment with

his paramour.

In September 1992, husband began working for Hungerford

Mechanical as a sales manager for the fire protection division.

In May 1997, husband voluntarily left his employment with

Hungerford Mechnical, where he was earning a base salary of

$50,000 per year plus ten percent commission on the profit of

the fire protection department. The company paid the commission

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bonuses in the first quarter of each year for the preceding

year. For the two years that husband received a bonus, the

amounts varied substantially: in 1995, he received a bonus

between $7,000 and $8,000 and, in 1996, he received $26,000.

After husband left Hungerford Mechanical, he started his

own company, Beck Fire Protection. The company was in business

for less than one year and had been dissolved at the time of the

equitable distribution hearing. At the time of the hearing,

husband had been employed as a general manager and salesman for

Commonwealth Sprinkler, where he earned an annual salary of

$35,000.

During the marriage, in addition to the marital residence,

the parties acquired various assets, including investment

accounts, retirement accounts, and bank accounts. Many of the

accounts had been primarily funded by gifts to wife from her

family.

II. ANALYSIS

A decision regarding equitable
distribution rests within the sound
discretion of the trial court and will not
be disturbed unless it is plainly wrong or
without evidence to support it. See McDavid
v. McDavid, 19 Va. App. 406, 407-08, 451
S.E.2d 713, 715 (1994) (citing Srinivasan v.
Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d
675, 678 (1990)). "Unless it appears from
the record that the trial judge has not
considered or has misapplied one of the
statutory mandates, this Court will not
reverse on appeal." Ellington v. Ellington,

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 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).

Holden v. Holden, 31 Va. App. 24, 26-27, 520 S.E.2d 842, 844

(1999). "In challenging the court's decision on appeal, the

party seeking reversal bears the burden to demonstrate error on

the part of the trial court." Barker v. Barker, 27 Va. App.

519, 535, 500 S.E.2d 240, 248 (1998) (citation omitted).

"In fashioning any equitable distribution award, the trial court

must consider all the enumerated factors of Code § 20-107.3(E)

in exercising its discretion, and 'the Supreme Court and this

Court have repeatedly held that it is reversible error for the

trial [court] to fail' to do so." Gottlieb v. Gottlieb, 19 Va.

App. 77, 94, 448 S.E.2d 666, 676 (1994) (quoting Robinson v.

Robinson, 5 Va. App. 222, 227, 361 S.E.2d 356, 358-59 (1987)).

"'A commissioner's findings of fact which have been accepted by

the trial court "are presumed to be correct when reviewed on

appeal and are to be given 'great weight' by this Court."'"

Gilman v. Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768-69

(2000) (citation omitted).

A. Wife's Separate Property Claims

Wife contends that the trial court erred by finding that

she made a gift to husband of her separate funds that were used

to purchase or curtail the mortgage on the marital residence and

to fund the Interstate Johnson Lane account, the Scudder Capital

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Growth Fund, the Vanguard Group Investment account, the Fidelity

Magellan account, and the Fidelity Cash Reserve account.

1. Marital Residence

During the marriage, the parties purchased the marital

residence for approximately $306,071 and titled it jointly as

tenants by the entirety. They made a down payment of

approximately $60,000 on the purchase price which consisted of

$11,571 of marital proceeds from the sale of their first home;

$28,000 from the wife's Fidelity Case Reserve account, which we

find for reasons hereafter set forth was wife's separate

property; and $20,000 of husband's separate property, which he

had received during the marriage as a gift from wife's father.

They financed the balance. A year later, they refinanced the

loan by paying $50,404 to curtail the loan balance, which the

wife paid from the Calvert Account and which husband

acknowledges was wife's separate property.

The trial court classified the marital residence and

proceeds from the sale as all marital property. The

commissioner stated that the "parties clearly intended for this

home to serve as their family and marital residence and the

property was titled jointly, by tenants by the entirety and the

separate contributions made by [wife] towards the acquisition

and of the equity in the home, is deemed to be a gift by her to

him and the sale proceeds are marital." Accordingly, the trial

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court ruled that even though the wife traced her contributions

to the acquisition of the property to her separate funds,

nevertheless, the property and proceeds are all marital, rather

than hybrid, because wife made a gift to husband of an interest

in the funds by placing them in the martial residence.

Therefore, the trial court, based on the parties' respective

contributions to the purchase of the property and the source of

those funds, equitably distributed the marital assets two-thirds

to wife and one-third to husband.

Code § 20-107.3(A)(3)(e) provides that:

[w]hen marital property and separate
property are commingled into newly acquired
property resulting in the loss of identity
of the contributing properties, the
commingled property shall be deemed
transmuted to marital property. However, to
the extent the contributed property is
retraceable by a preponderance of the
evidence and was not a gift, the contributed
property shall retain its original
classification.

We have stated:

In order to trace the separate portion
of hybrid property, a party must prove that
the claimed separate portion is identifiably
derived from a separate asset. This process
involves two steps: a party must
(1) establish the identity of a portion of
hybrid property and (2) directly trace that
portion to a separate asset.

Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141

(1997) (citing Code § 20-107.3(A)(3)(d)-(f)). "'[T]he party

claiming a separate interest in transmuted property bears the

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burden of proving retraceability.'" Holden, 31 Va. App. at 27,

520 S.E.2d at 844 (quoting von Raab v. von Raab, 26 Va. App.

239, 248, 494 S.E.2d 156, 160 (1997)).

The evidence proves and amply supports the trial court's

finding that wife traced $78,404 of her separate funds to the

purchase of the marital home. The commissioner concluded,

however, that wife had made a gift to husband of these separate

funds which she used to purchase and refinance the home. Wife

testified that she paid $28,000 from her separate funds as a

down payment on the home, which funds had been gifts to her from

her father and grandfather. Wife introduced copies of checks

payable to her from her father as evidence of the gifts. Wife

also testified that just before refinancing the residence, she

transferred $51,000 from her separately owned bank account, the

Calvert account, into the parties' joint NationsBank account.

Thereafter, a check was drawn on the NationsBank account in the

amount of $50,404 to curtail the mortgage. The foregoing

evidence supports the trial court's finding that wife traced

$78,404 in separate property that she contributed to the hybrid

property. See Holden, 31 Va. App. at 28-29, 520 S.E.2d at

844-45.

The trial court upheld the commissioner's finding that,

although wife retraced her separate funds in the marital

residence, the evidence proved that she gifted those funds to

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husband. We disagree. No presumption of gift arises solely

from the fact that the property, which was acquired in part with

wife's separate funds, was jointly titled to husband and wife.

See Code § 20-107.3(A)(3)(g). To establish a gift, the donee

must prove by clear and convincing evidence: "(1) the intention

on the part of the donor to make the gift; (2) delivery or

transfer of the gift; and (3) acceptance of the gift by the

donee." Theismann v. Theismann, 22 Va. App. 557, 566, 471

S.E.2d 809, 813 (citation omitted), aff'd en banc, 23 Va. App.

697, 479 S.E.2d 534 (1996); see also Dean v. Dean, 8 Va. App.

143, 146, 379 S.E.2d 742, 744 (1989) (holding that one who

claims ownership of property by gift bears the burden of proving

the donative intent of the donor by clear and convincing

evidence).

Here, the element required to prove a gift that is disputed

by the parties is wife's intent to give the money to husband.

Although the parties intended the residence to be their family

and marital home, husband did not prove by clear and convincing

evidence that wife by words, acts, or conduct intended to gift

the funds to him that were used as a down payment or to reduce

the mortgage. Wife testified that she never mentioned or

discussed making a gift of those funds to husband and that

husband knew the funds were her separate property, which she had

received as gifts from her family. Husband testified, "The

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intention with those funds as told to me by herself and her dad

was that they were given to her as an inheritance and for us,

part of it was inheriting and a gift and the intention was for

us to do as we pleased." Husband, however, admitted that he

"rarely" discussed with his father-in-law the gifts the

father-in-law gave to wife. Husband also testified that the

funds in the Calvert account, of which $50,404 was used to

refinance the mortgage on the residence, was exclusively in

wife's name "for her to do as she pleased." Husband stated that

after he left the marital residence, he assured wife's father

that if the funds were hers, "[he had] no desire to try and go

after it." Accordingly, we find no evidence to support the

trial court's finding that husband proved, by clear and

convincing evidence, that wife intended to gift the funds to

husband that she used as a down payment or to curtail the

mortgage. We, therefore, reverse the trial court's holding and

remand the issue to the trial court for entry of an equitable

distribution award of the $160,357.67 in accordance with the

following directions.

The $160,357.67 proceeds shall be distributed in accordance

with the proportional contributions that the parties made to the

acquisition of the property. Neither party contends and no

evidence suggests that the property increased in value due to

subsequent contributions of marital property or the personal

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efforts of either party. Furthermore, the evidence does not

establish the extent to which the parties acquired marital

equity in the home by having made mortgage payments with marital

funds. Accordingly, on the record before us, we find that wife

contributed 71.3% from her separate funds to acquire the

property, husband contributed 18.2% from his separate funds, and

the parties contributed marital funds of 10.5%. The trial court

has discretion to divide the marital share according to the Code

§ 20-107.3(E) factors. Accordingly, the trial court shall award

wife 71.3% or $114,335.01 as her separate property, shall award

husband 18.2% or $29,185.09 as his separate property, and shall

distribute the 10.5% or $16,837.55 between the parties in

accordance with the Code § 20-107.3(E) factors.

2. Investment Accounts

Wife next contends that the trial court erred in finding

that she gifted to husband her separate funds that were

deposited in the Interstate Johnson Lane account, the Scudder

Capital Growth Fund, the Vanguard Group Investment account, the

Fidelity Magellan account, and the Fidelity Cash Reserve

account. Wife introduced evidence showing that during their

marriage she received gifts totaling $273,430 from various

family members. She introduced evidence showing that a portion

of those funds was deposited into all of the above accounts.

The commissioner found, which finding the trial court confirmed,

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that wife had traced her separate funds in each account.

However, the trial court found that the funds wife deposited

into the investment accounts were marital property and that wife

had gifted an undivided interest to husband in the separate

property.

In the absence of satisfactory evidence to the contrary,

property acquired by either spouse during the marriage is

presumed to be marital. See Code § 20-107.3(A)(2); Hart v.

Hart, 27 Va. App. 46, 61, 497 S.E.2d 496, 503 (1998). However,

"[s]eparate property is . . . (ii) all property acquired during

the marriage by bequest, devise, descent, survivorship or gift

from a source other than the other party." Code

§ 20-107.3(A)(1).

"In the case of a gift to one of the
spouses, if there is credible evidence
presented to show that the property was
intended by the donor to be the separate
property of one of the spouses, the
presumption [of marital property] is
overcome, and the burden shifts to the party
seeking to have the property classified as
marital to show a contrary intent on the
part of the donor."

Rahbaran, 26 Va. App. at 210, 494 S.E.2d at 142 (quoting

Stainback v. Stainback, 11 Va. App. 13, 17-18, 396 S.E.2d 686,

689 (1990)).

Here, the undisputed evidence proves that wife deposited

the separate funds which were gifted to her by her family

members into several of the accounts acquired during the

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marriage. Wife concedes that part of the funds was deposited

first into the parties' joint checking account and commingled

there with marital funds before being deposited into the other

accounts. Also, all of the investment accounts into which the

funds were subsequently deposited also contained marital funds,

except for the Fidelity Magellan account. The Fidelity Magellan

and the Fidelity Cash Reserves accounts were registered solely

in wife's name, and only she had access to those accounts.

Husband testified that he actively managed the parties'

investment accounts by reading trade journals, researching

various investment accounts before an investment was made,

keeping track of the investments, and organizing data onto

spreadsheets. Wife testified that they made their investment

decisions together. Husband testified that the gift money she

received from family members was "supposed to be for both of

[them]."

On these facts, the trial court did not err in finding that

wife gifted to husband an interest in the separate funds

deposited in the Interstate Johnson Lane account, the Scudder

Capital Growth Fund, and the Vanguard Group Investment account.

After depositing the funds into the marital checking account and

commingling the separate funds with marital funds, the parties

jointly made investment decisions, and the commingled funds were

deposited into the investment accounts that were either jointly

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registered or registered solely in husband's name. When wife

received gifted funds from her family members, the funds would

routinely be placed into the parties' joint marital checking

account. The funds were disbursed and deposited into wife's

separately held accounts as well as the parties' joint accounts

or accounts registered solely in husband's name. Wife's

decision to invest funds into the joint accounts or the accounts

bearing only husband's name, rather than investing the funds in

her separately held accounts, supports wife's intent to gift an

undivided portion of those funds to husband. Viewing the

evidence in the light most favorable to husband, we hold that

the trial court was not plainly wrong in concluding that wife

intended to make a gift to husband of a portion of these funds

and that those funds thereby became marital property.

However, we hold that the trial court erred in finding that

wife gifted to husband an interest in the funds in the Fidelity

Magellan account. Husband failed to prove that wife by any

acts, words, or conduct intended to gift an interest in the

funds in this account to him. The account was registered solely

in wife's name, only she had access to the account, and all the

funds in the Magellan account were traced to wife's separate

property. Additionally, the Fidelity Cash Reserve account was

opened in wife's name only by her father depositing $20,000 into

the account at the beginning of the parties' marriage. At the

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equitable distribution hearing, husband testified that this

account was in "wife's name only and [he didn't] have any access

to that account." Accordingly, we hold that husband failed to

show, by clear and convincing evidence, that wife intended to

gift the funds in the Fidelity Magellan and Fidelity Cash

Reserve accounts to him. Although wife's separate funds that

were deposited into the Fidelity Cash Reserve account were

commingled with some marital funds in that account, husband, in

effect, concedes that the balance of the funds in that account

was wife's separate property. See Code § 20-107.3(A)(3)(d)

(commingling by contributing one category of property to

another, resulting in loss of identity, transmutes except to

extent retraced). Therefore, the trial court erred in finding

that the funds were marital property. We, therefore, reverse

that portion of the trial court's order and remand to the trial

court for recalculation of the equitable distribution award of

those remaining marital investment funds.

B. Retirement Accounts

Wife contends that the trial court erred in failing to

equally divide the parties' 401K plans. Wife asserts that the

commissioner classified the retirement accounts as marital but

then erroneously treated them as separate property and failed to

apply the factors set forth in Code § 20-107.3(A)(2) and (E).

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 Code § 20-107.3(A)(2)(iii) provides that marital property

is:

All property including that portion of
pensions, profit-sharing or deferred
compensation or retirement plans of whatever
nature, acquired by either spouse during the
marriage, and before the last separation of
the parties, if at such time or thereafter
at least one of the parties intends that the
separation be permanent, is presumed to be
marital property in the absence of
satisfactory evidence that it is separate
property.

The parties stipulated that wife's 401K was valued at $36,000

and husband's 401K was valued at $61,830.70. The trial court

classified both husband's and wife's 401K plans as marital but

concluded that each party shall retain his or her account

without contribution from the other. The commissioner noted,

"As a result of their sole efforts towards the values of these

plans from their previous employers, separately, this

Commissioner will report that each party maintain those accounts

separately, without contribution to the spouse."

Code § 20-107.3(G)(1) provides that upon consideration of

the factors set forth in Code § 20-107.3(E), "[t]he court may

direct payment of a percentage of the marital share of any

pension, profit-sharing or deferred compensation plan or

retirement benefits . . . which constitutes marital

property . . . ." (Emphasis added). "Virginia's statutory

scheme of equitable distribution does not have a presumption

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favoring an equal distribution of assets." Alphin v. Alphin, 15

Va. App. 395, 404, 424 S.E.2d 572, 577 (1992) (citation

omitted). The trial court may consider under Code

§ 20-107.3(A)(2) and (E) the unequal efforts of the parties

toward the acquisition of their respective retirement plans and,

accordingly, grant to them their respective plans. See Artis v.

Artis, 10 Va. App. 356, 362, 392 S.E.2d 504, 507-08 (1990); see

also Keyser v. Keyser, 7 Va. App. 405, 413, 374 S.E.2d 698, 702

(1988) (stating that "by listing the factors listed in Code

§ 20-107(E), the legislature envisioned that consideration of

the factors to various properties could justify different

equities in each of the properties"). By classifying the

respective pensions as marital property, the court determined

that each spouse had rights and equities in the other's pension,

but by awarding each their respective pensions, the court

determined that their individual efforts in accumulating their

pensions justified their receiving the major portion of their

own respective pension, thereby justifying an award to each of

his and her pensions. Therefore, we cannot say the trial

court's refusal to award wife a percentage of husband's 401K was

an abuse of discretion or unsupported by the evidence. See Zipf

v. Zipf, 8 Va. App. 387, 393 n.2, 382 S.E.2d 263, 266 n.2 (1989)

(holding that the division of marital property is a matter

committed to the sound discretion of the trial court).

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 C. Spousal Support

Wife contends that the trial court erred in failing to award

her spousal support. She argues that the court erred in finding

that she has the ability to obtain full-time employment earning as

much as husband. Wife asserts that obtaining employment would be

prohibitive because of the child care expenses she would incur.

She requests that she be awarded, at a minimum, spousal support

equal to the child care expenses she would incur if she were

working and incurring such expenses.

In awarding spousal support, "the law's aim is to provide a

sum for such period of time as needed to maintain the spouse in

the manner to which the spouse was accustomed during the marriage,

balanced against the other spouse's ability to pay." Blank v.

Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (citation

omitted).

In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the . . . 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) (citation omitted); see also Howell v. Howell, 31 Va.

App. 332, 351, 523 S.E.2d 514, 524 (2000) (finding that a

"spousal support award is subject to the trial court's

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discretion and will not be disturbed unless plainly wrong or

without evidence to support it").

The trial court held that wife shall receive a reservation of

spousal support and that husband shall not receive a reservation.

The commissioner in recommending that wife merely receive a

reservation stated:

This marriage was a eight year marriage
approximately, and both parties equally have
the good health and ability to earn
income. . . . [Wife] is now providing almost
100% . . . of the non-monetary contributions
towards the well being of their family,
without much if any support or assistance
from [husband] . . . . My careful
consideration of the criteria enumerated, in
reference to spousal support in the Virginia
Code, shows that [wife] shall receive a
reservation of spousal support . . . .

We hold that the trial court's failure to award wife spousal

support is not supported by the evidence. "Among the other

statutory factors, the trial court must evaluate the earning

capacity of both parties." Barker, 27 Va. App. at 528, 500 S.E.2d

at 244. Although wife has a master's degree in business

administration, the record shows that wife does not work outside

of the home because all three of the parties' children are below

school age. As the commissioner noted, wife provides nearly 100%

of the non-monetary contributions to rearing and attending the

three children. The record fails to show that wife has income

sufficient to meet her needs or to provide the basic necessities.

Code § 20-107.1(E)(8) requires the trial court to consider the

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provisions made with regard to the marital property under Code

§ 20-107.3 in fashioning a spousal support award. Although the

evidence shows that wife has substantial assets, it fails to show

that the assets had income generating potential. Moreover, the

size of the equitable distribution award, while a factor, is not

dispositive; wife was awarded that to which she was entitled under

the law, "without regard to need or earning capacity." Gottlieb,

19 Va. App. at 85, 448 S.E.2d at 671 (holding that wife's

$600,000 lump sum equitable distribution award is not

dispositive of her spousal support award). Therefore, we hold

that the trial court erred in not awarding spousal support in an

amount at least equal to that necessary to pay child care expenses

that would enable wife to seek employment. Accordingly, the trial

court is instructed to reconsider the award of spousal support on

remand.

D. Husband's Imputed Income

First, wife contends that the trial court erred by failing

to impute $90,000 annual income to husband because he

voluntarily was under-employed. Next, wife contends that even

if the commissioner was correct in imputing $50,000 annual

income to husband, the recommended monthly child support

obligation of $1,027.20 was erroneously calculated using an

annual income of $35,000 rather than $50,000.

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 "Imputation of income is based on the principle that a

spouse should not be allowed to choose a low paying position

that penalizes the other spouse or any children entitled to

support." Calvert v. Calvert, 18 Va. App. 781, 784-85, 447

S.E.2d 875, 876-77 (1994). "A reduction in income resulting from

a voluntary employment decision does not require a corresponding

reduction in the payor spouse's support obligations, even if the

decision was reasonable and made in good faith." Stubblebine v.

Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) (en

banc) (citing Antonelli v. Antonelli, 242 Va. 152, 156, 409

S.E.2d 117, 119-20 (1991)). "The decision to impute income is

within the sound discretion of the trial court and its

[decision] will not be reversed unless plainly wrong or

unsupported by the evidence." Blackburn v. Michael, 30 Va. App.

95, 102, 515 S.E.2d 780, 784 (1999) (citation omitted).

The trial court imputed $50,000 annual salary to husband,

finding that he was voluntarily under-employed. At the time

husband voluntarily terminated his employment with Hungerford

Mechanical in May 1997, he was earning a base salary of $50,000

per year plus a bonus, consisting of a ten percent commission on

the net profit from the fire protection department. Currently,

husband is employed at Commonwealth Sprinkler earning $35,000

per year. Although the trial court found that husband's current

salary is $35,000, for purposes of determining husband's child

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support obligation and as the basis for deviating from the

guidelines, the court imputed to husband $50,000 annual income.

In his interim report dated February 13, 1998, the commissioner

found that "a $50,000.00 salary, is the correct amount of income

that [husband] can earn and is not earning through his own fault

and that his current $35,000.00 salary is not relevant to this

issue."

We hold that the trial court did not err by imputing

$50,000 income to husband. Husband's former employer testified

that it was husband's decision to leave his employment with

Hungerford Mechanical and, but for that decision, husband would

still be employed with the company. Although the evidence

establishes that, while employed at Hungerford Mechanical,

husband earned yearly bonuses between $7,000 and $26,000 in

addition to his $50,000 base salary, the additional income not

only fluctuated greatly, but it was not guaranteed. Further,

husband's employer testified that employees were only eligible

for bonuses if they were employed with the company at the end of

the calendar year.

Code § 20-108.1(B) provides that there shall be a

rebuttable presumption that the amount of the award which

resulted from the application of the guidelines set out in Code

§ 20-108.2 is correct. The provision further provides:

In order to rebut the presumption, the
court shall make written findings in the

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 order, which findings may be incorporated by
reference, that the application of such
guidelines would be unjust or inappropriate
in a particular case. The finding that
rebuts the guidelines shall state the amount
of the support that would have been required
under the guidelines, shall give a
justification of why the order varies from
the guidelines, and shall be determined by
relevant evidence pertaining to the
following factors affecting the obligation,
the ability of each party to provide child
support, and the best interests of the
child: [including] . . . Imputed income to
a party who is voluntarily unemployed or
under-employed . . . .

Accordingly, the trial court must calculate the presumptive

amount of the support award and, if the court deviates based on

one of the factors, the court shall give a justification as to

why the order varies from the guideline amount.

Here, the court imputed $50,000 annual income to husband.

The court also determined, as it was required to do, the

presumptive guideline amount based upon husband's actual salary

of $35,000, which amount was $1,027.20, consisting of $849.20

from the guidelines and $178 for the children's medical

insurance premium. See Farley v. Liskey, 12 Va. App. 1, 5, 401

S.E.2d 897, 899 (1991) (stating that gross income as used in the

statute includes only actual income and imputed income is but a

factor to consider only after the presumptive amount is

determined). However, although the trial court imputed income

of $50,000 as the justification for deviating from the $35,000

guideline amount, the court, nevertheless, erroneously awarded

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$1,027.20, which was the presumptive amount based on $35,000,

rather than $1,294, the amount based upon a $50,000 imputed

salary.

While the commissioner's worksheet determined the

presumptive amount under the guidelines, the court order failed

to state the presumptive guideline amount. Furthermore, while

the court made clear that it was imputing a $50,000 income to

husband as the basis for deviating from the guidelines, the

order did not make explicit findings regarding the deviation.

See Richardson v. Richardson, 12 Va. App. 18, 21-23, 401 S.E.2d

894, 896-97 (1991). Rather, the court merely stated the amount

of husband's monthly support obligation, which amount was

erroneous based upon an actual income of $35,000.

Accordingly, we find that the trial court's ruling imputing

$50,000 annual income to husband was not an abuse of discretion,

but to the extent that the court miscalculated the support

obligation and failed to make explicit findings, on remand the

court shall redetermine the amount of child support based on the

finding of $50,000 imputed income and accordingly enter its

order nunc pro tunc.

E. Alleged Waste of Marital Assets by Husband

Wife contends that the trial court erred in finding that

husband did not waste the $26,000 bonus earned before the

parties separated but disbursed in March 1997, after the parties

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separated. Wife further contends that the trial court erred in

failing to find that husband wasted the $8,000 proceeds from the

sale of the parties' vehicle. Wife argues that husband failed

to meet his burden of proving that the funds were used for a

proper purpose.

The trial court held that "[t]he bonus check Husband

received after the separation, though earned by Husband during

the marriage, was primarily used for attorney fees. As there

are no funds left to be divided, there will be no division of

these funds."

Waste is defined as the "dissipation of marital funds in

anticipation of divorce or separation for a purpose unrelated to

the marriage and in derogation of the marital relationship at a

time when the marriage is in jeopardy." Booth v. Booth, 7 Va.

App. 22, 27, 371 S.E.2d 569, 572 (1989) (citation omitted).

"Once the aggrieved spouse shows that marital funds were

withdrawn or used after the breakdown, the burden rests with the

party charged with dissipation to prove that the money was spent

for a proper purpose." Clements v. Clements, 10 Va. App. 580,

586-87, 397 S.E.2d 257, 261 (1990) (citation omitted). "We have

previously held that marital funds spent for living expenses,

attorney's fees for the divorce proceedings, and other

necessities of life while the parties are separated do not

constitute dissipation." Anderson v. Anderson, 29 Va. App. 673,

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695, 514 S.E.2d 369, 380 (1999) (citing Decker v. Decker, 17 Va.

App. 12, 19, 435 S.E.2d 407, 412 (1993); Alphin, 15 Va. App. at

403, 424 S.E.2d at 576).

Husband does not dispute that he retained the $26,000 bonus

and $8,000 of the $11,000 proceeds from the sale of his Ford

Explorer. However, he testified that he spent $10,000 of the

bonus and $3,000 of the sale proceeds for attorney's fees.

Therefore, because husband demonstrated that these funds were not

used for an improper purpose, the trial court did not err in

finding that husband did not commit waste. However, husband

failed to show that the remainder, or $21,000, was used for a

proper purpose. Moreover, there was ample evidence in the record

showing that husband dissipated the remainder of the funds. The

evidence proved that husband vacated the marital residence and

that it sat vacant when he rented and moved into an apartment with

his paramour. Although he stated that his paramour would

reimburse him for expenses when she could, he admitted that he

paid all of the expenses, including rent, utilities, country club

dues, health insurance premiums, and monthly car payments for his

paramour's vehicle. Husband also testified that he used some of

the funds from the bonus to make the down payment for one of his

two Mercedes Benz automobiles and to apply to credit card debt.

Accordingly, we find that the trial court erred in finding that

husband did not dissipate that portion of the bonus he received

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and that portion of the proceeds from the sale of the vehicle that

he failed to account for, as was his burden. Accordingly, on

remand, the trial court shall include the $21,000 as a marital

asset in recalculating the equitable distribution award.

F. Attorney's Fees

Wife contends that the trial court erred in failing to award

attorney's fees. She argues that because husband used marital

funds to pay his attorney's fees, the court, at a minimum, should

have awarded her a sum equal to that amount of marital funds

husband used, which was $13,000. Further, wife argues that she is

entitled to attorney's fees because husband, in defending the

suit, advanced many "baseless" positions.

"An award of attorney's fees to a party in a divorce suit

is a matter for the exercise of the trial court's sound

discretion after consideration of the circumstances and equities

of the entire case." Davis v. Davis, 8 Va. App. 12, 17, 377

S.E.2d 640, 643 (1989) (citation omitted).

Here, the evidence proves that husband spent at least

$13,000 of marital assets for attorney's fees. Husband

testified that of the $26,000 bonus he earned during the

marriage while employed at Hungerford Mechanical, he spent

$10,000 on attorney's fees. Further, he testified that of the

$8,000 proceeds from the sale of the Ford Explorer, which was a

martial asset, he spent $3,000 on attorney's fees. The record

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reflects that wife has adequate financial resources to pay her

own litigation expenses; however, the record indicates that wife

borrowed money to pay her attorney's fees while husband used

marital assets to pay his attorney's fees. Because the trial

court must reconsider the equitable distribution award for the

reasons previously stated, the court shall reconsider the wife's

request for attorney's fees in light of the foregoing

observations.

Affirmed, in part,
reversed, in part,
and remanded.

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