Joynes v. Payne

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Humphreys
Argued by teleconference

STANLEY K. JOYNES, III
OPINION BY
v. Record No. 1556-00-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 28, 2001
MARIA L. PAYNE

UPON A REHEARING

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge

Edward D. Barnes (Charles E. Powers; Barnes &
Batzli, P.C., on brief), for appellant.

James C. Roberts (Dawn B. DeBoer; Melissa J.
Roberts; Mays & Valentine, L.L.P., on brief),
for appellee.

Stanley K. Joynes appealed a final decree of divorce in

which the circuit court granted his wife, Maria L. Payne, a

divorce, granted Payne custody of the parties' two children,

distributed the parties' marital property, and granted Payne

spousal support, child support, and attorney's fees. Joynes

alleged that the trial court erred in: (1) awarding custody of

the parties' children to Payne; (2) failing to allow Joynes to

present additional evidence after the close of evidence; (3)

failing to establish May 28, 1999 as the date of the custody

award; (4) awarding the ordered level of spousal support; (5)

failing to specify a termination date for the spousal support

awarded; (6) awarding the ordered level of child support; (7)
awarding Payne attorney's fees; and (8) failing to appropriately

consider the evidence regarding the equitable distribution of

the parties' property. Payne asserted on cross-appeal that the

trial court erred in assessing against her a negative

non-monetary contribution. In the alternative, Payne contended

that the trial court improperly quantified the negative

non-monetary contribution. By published opinion dated May 8,

2001, we affirmed in part, and reversed and remanded in part.

By order entered June 19, 2001, we stayed our previous

decision and granted Joynes' motion for rehearing based on

Joynes' contention that the reversal and remand on the issue of

Payne's child support obligation amounted to a judgment allowing

an imputation of income at a lower standard for spousal support

than that used for child support, which he argued was contrary

to established case law and statutes. Upon reconsideration of

this matter and for the reasons that follow, we find no

reversible error and affirm the judgment of the trial court in

its entirety.

I. Background

"Under familiar principles we view [the] evidence and all

reasonable inferences in the light most favorable to the

prevailing party below." Martin v. Pittsylvania County Dep't of

Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

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 The parties were married on August 9, 1980. There were two

children of the parties' marriage: Elizabeth, born August 15,

1991, and Alexandra, born January 30, 1995. In January 1998,

the parties agreed to separate. On July 2, 1998, Joynes filed

his bill of complaint. The parties did not physically separate

until November 27, 1998. From that time, until the resolution

of the matter, the parties operated under an agreed upon

pendente lite order.

An evidentiary hearing was held before the Commissioner in

Chancery on May 3, 4, 5, 6, 7, and 10 of 1999. An additional

hearing was held before the commissioner on May 29, 1999. The

testimony presented during the hearing established that Payne

had suffered from bulimia since her college years. Payne

experienced periodic bouts of the disorder until approximately

1993, when a partner with the law firm where she worked informed

Joynes of Payne's condition. Although Payne had denied any such

disorder in the past, Payne admitted to her problem at that

time. Since then, she has come to terms with the disorder and

has sought treatment. At the time of the trial, Payne was

"medically cured" of the bulimia but continued to consult with

her physicians on a regular basis.

It was undisputed during the trial that the parties'

children were physically healthy and enjoyed a good relationship

with both parents. Payne had taken an extended leave of absence

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from her position as a partner in a law firm both before and

after the birth of Elizabeth. In January, 1993, Payne reduced

her employment to part-time, working only three days per week.

She took a third extended leave of absence after the adoption of

Alex, the parties' second child. Payne then returned to work

part-time until March, 1997, when she ceased work in order to

attend to her family responsibilities. Joynes testified that he

objected to Payne's decision to terminate her employment.

Until May, 1996, Joynes worked a considerable number of

hours as a partner with another law firm. At that time, he was

diagnosed with cancer and underwent surgery and treatment.

Because of his illness, Joynes cut back his work hours but

continued to work several hours every day.

Testimony established that Joynes enjoyed a good

relationship with his family and had several family members

living close by, who had a close relationship with the children.

Payne's family resides in Florida, and, although her

relationship with them was strained at one time, evidence was

presented demonstrating that the relationship had improved.

However, she and the children did not spend time with her family

on a regular basis.

During the parties' separation, prior to the entry of the

final decree, the evidence established that Payne allowed Joynes

visitation as agreed upon in the decree. However, although

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Payne allowed Joynes additional visitation, she did not allow

Joynes additional visitation on every occasion that Joynes

requested it.

After the close of the evidence and upon review of written

memoranda submitted by both parties, the commissioner filed his

eighty-eight page report on January 4, 2000. The parties filed

exceptions to the report and on March 27, 2000, argued their

exceptions to the trial court. On April 10, 2000, Joynes filed

a motion with the trial court, requesting a hearing to present

new evidence. The trial court denied the motion on April 11,

2000 during a telephone conference among both parties' counsel

and the court. After fully reviewing the extensive transcript,

exhibits and legal memoranda, the trial court affirmed the

commissioner's award on May 5, 2000. The final decree was

entered on June 5, 2000.

On appeal, Joynes raises seventeen assignments of error.

Payne, on cross-appeal, alleges three additional errors. 1

II. Custody

We first note that:

[w]hile the report of a commissioner in
chancery does not carry the weight of a
jury's verdict, Code § 8.01-610, it should

1
Following oral argument, Joynes filed a "Motion to Strike"
from the record comments made by counsel for Payne in his
argument before us. This motion was opposed by Payne. We are
cognizant of the facts contained in the record and we note that
counsel for Joynes had the opportunity for rebuttal argument.
Accordingly, we decline to grant Joynes' motion.

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 be sustained unless the trial court
concludes that the commissioner's findings
are not supported by the evidence. This
rule applies with particular force to a
commissioner's findings of fact based upon
evidence taken in his presence, but is not
applicable to pure conclusions of law
contained in the report. On appeal, a
decree which approves a commissioner's
report will be affirmed unless plainly wrong
. . . .

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984).

With regard to the award of custody, Joynes argues that the

commissioner and the trial court erred in: (1) failing to grant

Joynes custody because the evidence established that Payne's

actions had been adverse to the best interests of the children;

(2) applying an erroneous burden of proof with respect to

Joynes' petition for custody; (3) failing to substantively

consider the factors set forth in Code § 20-124.3; (4) failing

to consider Joynes as a custodial parent; (5) refusing Joynes'

request to present additional evidence after the close of

evidence; and (6) failing to establish the date of the award of

custody as May 28, 1999, the date of the close of evidence.

In awarding Payne physical custody of the children, the

commissioner found as follows with regard to Payne's bulimia:

[I]n order to obtain physical custody solely
as a result of defendant's bulimia, I think
the plaintiff must show that the defendant
is not consistently alert to any signs or
symptoms of relapse and willing to seek
immediate treatment, or that defendant does
not fully understand the potential genetic
predisposition towards the illness and the

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 role environmental factors may play in
developing an eating disorder in children.
The evidence does not prove the defendant
lacking in either measure.

* * * * * * *

For all of the above reasons, I find that
defendant's bulimic condition, standing
alone, is not a sufficient reason to award
sole custody of Elizabeth and Alex to the
plaintiff.

The commissioner then specifically discussed and considered each

of the factors listed in Code § 20-124.3, as it read during the

hearing of this matter. 2 The commissioner also recognized that

2
Code § 20-124.3 states as follows:

In determining best interests of a child for
purposes of determining custody or
visitation arrangements including any
pendente lite orders pursuant to § 20-103,
the court shall consider the following:

1. The age and physical and mental
condition of the child, giving due
consideration to the child's changing
developmental needs;

2. The age and physical and mental
condition of each parent;

3. The relationship existing between each
parent and each child, giving due
consideration to the positive involvement
with the child's life, the ability to
accurately assess and meet the emotional,
intellectual and physical needs of the
child;

4. The needs of the child, giving due
consideration to other important
relationships of the child, including but
not limited to siblings, peers and extended
family members;

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serving the best interests of the children was his primary

concern. He noted that Payne had been the primary nurturer and

care-provider since the children's births. He also noted that

Payne's "possessory stance" toward Joynes, with regard to

visitation, could have a negative impact on the relationship

between Joynes and the children. In addition, he stated that

Joynes' "forays" with another woman caused him some concern.

Yet, he found both Joynes and Payne to be fit parents and

ultimately ruled that, "[i]n consideration of the evidence

presented pursuant to Virginia Code § 20-124.3, and the

applicable case law, [he was] constrained to find that [Payne]

should remain the physical custodian for Elizabeth and Alex."

5. The role which each parent has played
and will play in the future, in the
upbringing and care of the child;

6. The propensity of each parent to
actively support the child's contact and
relationship with the other parent, the
relative willingness and demonstrated
ability of each parent to maintain a close
and continuing relationship with the child,
and the ability of each parent to cooperate
in matters affecting the child;

7. The reasonable preference of the child,
if the court deems the child to be of
reasonable intelligence, understanding, age
and experience to express such a preference;

8. Any history of family abuse as that term
is defined in § 16.1-228; and

9. Such other factors as the court deems
necessary and proper to the determination.

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 Code § 20-124.3 specifies the factors a court "shall

consider" in determining the "best interests of a child

for . . . custody or visitation." Although the trial court must

examine all factors set out in Code § 20-124.3, "it is not

'required to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors.'"

Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599

(1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 346, 349

S.E.2d 422, 426 (1986)). As long as evidence in the record

supports the trial court's ruling and the trial court has not

abused its discretion, its ruling must be affirmed on appeal.

See Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 578

(1992).

Here, the commissioner's extensive report demonstrates that

he considered the statutory factors and made his decision based

upon the children's best interests. Despite Joynes' assertion

to the contrary, the record is replete with evidence in support

of the commissioner's recommendation. See Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)

("The credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented.").

Furthermore, the commissioner merely considered Joynes'

"forays" with another woman, as well as Payne's past role as the

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primary nurturer and care-giver for the children. He did not

rely solely on these factors in reaching his determination. In

fact, he specifically stated that he did not rely on Joynes'

activities with another woman in reaching his decision. Thus,

the commissioner's consideration of these factors is not error;

rather, it merely demonstrates his resolve in carefully

considering the voluminous amount of evidence presented and its

relationship to the best interests of these children. See Brown

v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999)

(holding that the finder of fact is given broad discretion in

determining what promotes the children's best interests).

Joynes additionally argues that the commissioner "imposed

upon [him] an erroneous burden of proof with respect to his

petition for custody" when he found that

Joynes could only be awarded custody if he
could show that [Payne was] not constantly
alert to any signs or symptoms of relapse
and willing to seek immediate treatment, or
that [Payne did] not fully understand that
potential genetic predisposition towards the
illness and the role environmental factors
play in developing an eating disorder in
children.

However, Joynes misstates the commissioner's holding.

The commissioner held that "in order [for Joynes] to obtain

physical custody solely as a result of defendant's bulimia,"

(emphasis added), the evidence must demonstrate the existence of

a situation such as that described and set forth above. In so

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holding, the commissioner recognized that Joynes' custody case

rested primarily on his argument that Payne was unfit to act as

the physical custodian of the children due to her bulimic

condition. The weight to be placed on this single factor,

namely Payne's physical and mental condition, was within the

discretion of the commissioner as fact finder. See Sargent, 20

Va. App. at 702, 460 S.E.2d at 600.

Joynes next argues that the trial court violated his due

process rights by refusing to allow him to present additional

evidence almost one year after the close of evidence in this

matter. Simultaneously, Joynes argues that the trial court

erred in failing to promptly adjudicate the matter. As a

remedy, Joynes argues that the date of the award of custody

should be May 28, 1999, the date of the close of evidence,

instead of June 5, 2000, the date of the final decree.

Joynes is correct in noting that "[d]ue process requires

the courts to comply strictly with the statutory scheme for

disposition of child custody cases." Rader v. Montgomery

County, 5 Va. App. 523, 528, 365 S.E.2d 234, 237 (1988).

Further, Code § 20-124.2 requires the trial court to "provide

prompt adjudication upon due consideration of all the facts."

However, introduction of additional evidence into the record

after the commissioner has filed his report is treated as a

motion to receive after-discovered evidence. See id.; see also

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Mundy v. Commonwealth, 11 Va. App. 461, 480, 390 S.E.2d 525,

535, aff'd on reh'g en banc, 399 S.E.2d 29 (1990). Four

requirements must be met before a record can be reopened to

receive additional evidence: (1) the evidence must have been

discovered after the record was closed; (2) it could not have

been obtained prior to the closing of the record through the

exercise of reasonable diligence; (3) it is not merely

cumulative, corroborative, or collateral; and (4) it is

material, and as such, should produce an opposite result from

that contained in the commissioner's report. Id.

Here, the record does not disclose the nature of the

evidence, nor does it describe when and how the evidence was

obtained. More importantly, the record does not disclose

whether Joynes described to the trial court the nature of the

evidence and the circumstances surrounding his request for an

additional hearing. Accordingly, we cannot consider Joynes'

argument in this regard on appeal. See Smith v. Hylton, 14 Va.

App. 354, 357-58, 416 S.E.2d 712, 715 (1992) ("It is well

settled that when a party's evidence has been ruled

inadmissible, the party must proffer or avouch the evidence for

the record in order to preserve the ruling for appeal;

otherwise, the appellate court has no basis to decide whether

the evidence was admissible."). Finally, we find that the trial

court's ruling of May 5, 2000 and final decree of June 5, 2000

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were sufficiently "prompt" in light of the voluminous pleadings

and evidence in this matter. 3

III. Spousal Support

Joynes next argues that the trial court erred by using an

"erroneous standard" in imputing income to Payne in its

determination of spousal support. Joynes also argues that the

trial court awarded Payne spousal support in excess of need and

failed to give substantive consideration to the statutory

factors set forth in Code § 20-107.1(E). Finally, Joynes

contends that the trial court erred in failing to specify a

termination date for the spousal support award, as required by

Code § 20-107.1(C).

"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

3
As stated previously, the hearing before the commissioner
spanned over seven days. Subsequently, both parties were given
time before the trial court to argue their exceptions to the
commissioner's report, and the trial court held yet another
hearing, by telephone conference, to hear argument and make a
ruling concerning Joynes' request to submit additional evidence.
Moreover, the joint appendix on appeal, which does not contain
the full record, includes over 4,000 pages of pleadings,
exhibits and transcripts, reflecting the complexity of the
initial proceedings in this matter.

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except for a clear abuse of discretion." 4 Collier v. Collier, 2

Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). "The trial court

4
Code § 20-107.1(E) provides the following:

The court, in determining whether to award
support and maintenance for a spouse, shall
consider the circumstances and factors which
contributed to the dissolution of the
marriage, specifically including adultery
and any other ground for divorce under the
provisions of subdivision (3) or (6) of
§ 20-91 or § 20-95. In determining the
nature, amount and duration of an award
pursuant to this section, the court shall
consider the following:

1. The obligations, needs and financial
resources of the parties, including but not
limited to income from all pension, profit
sharing or retirement plans, of whatever
nature;

2. The standard of living established
during the marriage;

3. The duration of the marriage;

4. The age and physical and mental
condition of the parties and any special
circumstances of the family;

5. The extent to which the age, physical or
mental condition or special circumstances of
any child of the parties would make it
appropriate that a party not seek employment
outside of the home;

6. The contributions, monetary and
non-monetary, of each party to the
well-being of the family;

7. The property interests of the parties,
both real and personal, tangible and
intangible;

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is not required to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors."

Woolley, 3 Va. App. at 345, 349 S.E.2d at 426. However, its

findings "must have some foundation based on the evidence

presented." Id.

The evidence demonstrated that at the time Payne left her

part-time employment in March, 1997, she was making

8. The provisions made with regard to the
marital property under § 20-107.3;

9. The earning capacity, including the
skills, education and training of the
parties and the present employment
opportunities for persons possessing such
earning capacity;

10. The opportunity for, ability of, and
the time and costs involved for a party to
acquire the appropriate education, training
and employment to obtain the skills needed
to enhance his or her earning ability;

11. The decisions regarding employment,
career, economics, education and parenting
arrangements made by the parties during the
marriage and their effect on present and
future earning potential, including the
length of time one or both of the parties
have been absent from the job market;

12. The extent to which either party has
contributed to the attainment of education,
training, career position or profession of
the other party; and

13. Such other factors, including the tax
consequences to each party, as are necessary
to consider the equities between the
parties.

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approximately $80,000 per year. Payne had made $94,430 in 1992,

when she was still working on a full-time basis. At the time of

the trial and for a number of years preceding the trial, Joynes

earned approximately $300,000 per year. Joynes presented

testimony establishing that Payne could earn approximately

$170,386 per year, were she to return to full-time employment

with the law firm she had previously worked for.

In making his determination concerning spousal support, the

commissioner specifically considered each of the statutory

factors set forth in Code § 20-107.1(E). Moreover, the

commissioner, quoting Srinivasan v. Srinivasan, 10 Va. App. 728,

734, 396 S.E.2d 675, 679 (1990), initially recognized that a

party who "'seeks spousal support is required to earn as much as

he or she reasonably can to decrease the amount of support

needed.'" He found that Payne had "offered no factual basis

which would preclude her from working" and "no legal basis why

income should not be imputed to her."

When asked to impute income to a parent, the
trial court must consider the parent's
earning capacity, financial resources,
education and training, ability to secure
such education and training, and other
factors relevant to the equities of the
parents and children. The burden is on the
party seeking the imputation to prove 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. The evidence must be
sufficient to enable the trial judge

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 reasonably to project what amount could be
anticipated.

Niemiec v. Commonwealth, Dep't of Soc. Servs., 27 Va. App. 446,

451, 499 S.E.2d 576, 579 (1998). The commissioner clearly

considered these factors in reviewing the evidence presented and

in finding that "for the last five years of her employment,

[Payne's] maximum annual salary was $80,990," that at no time

during her career had Payne earned the $170,386 figure projected

by Joynes' witness, "nor ha[d] she been capable of earning such

an amount." Indeed, "we have held that the court, in setting

support awards, must look to current circumstances and what the

circumstances will be 'within the immediate or reasonably

foreseeable future,' not to what may happen in the future."

Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679 (emphasis

added). Thus, the commissioner did not abuse his discretion in

refusing to accept the testimony of Joynes' witness and,

instead, basing his determination on the past earning capacity

demonstrated by Payne. "In awarding spousal support, the

chancellor must consider the relative needs and abilities of the

parties. He is guided by the [thirteen] factors that are set

forth in Code § 20-107.1." Collier, 2 Va. App. at 129, 341

S.E.2d at 829. "In fixing the amount of support, the trial

'court must look to the financial needs of the [receiving

party], her age, physical condition and ability to earn, and

balance against these circumstances the financial ability of the

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[other spouse] to pay, considering his income and his ability to

earn.'" Alphin, 15 Va. App. at 401, 424 S.E.2d at 575.

As noted above, the commissioner very carefully considered

the statutory factors in fixing the support award. In

particular, the commissioner considered Payne's earning capacity

and appropriately imputed income to her based upon the evidence

in the record which the commissioner, as the fact finder,

accepted as credible. See Code § 20-107.1(E)(9). The

commissioner's consideration of the decisions concerning Payne's

career which the parties made during their marriage was not

error. The commissioner did not conclude Joynes continued to be

bound by any tacit agreement he may have made during the

marriage to Payne's working part-time, thereby relieving Payne

of her duty "to earn as much as . . . she reasonably can."

Rather, the record supports the conclusion that the commissioner

considered such an agreement, if in fact he considered it at

all, only insofar as it impacted Payne's ability to earn, an

appropriate factor for consideration pursuant to Code

§ 20-107.1(E)(11).

We find that in applying these factors and in weighing the

relative needs, earning capacities and abilities of the parties,

their ages, the duration of the marriage, and the manner in

which the parties were accustomed to living during the marriage,

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the commissioner did not abuse his discretion in imputing income

to Payne or in determining the spousal support award.

Each party also disputes several amounts utilized by the

commissioner in determining each party's monthly

expenses/income. Joynes asserts that, in determining Payne's

adjusted monthly need of $1,051, the commissioner failed to

consider the $800 per month rental income received by Payne from

a condominium she retained, as well as interest income Payne

would receive from assets she retained as a result of the

equitable distribution award. Contrary to Joynes' assertion

otherwise, the record demonstrates that the commissioner

expressly considered the rental income from the parties'

condominium, as well as the potential interest income resulting

from the division of marital property.

Payne argues that the commissioner arbitrarily reduced

several of the monthly expenses that she had claimed in

determining her adjusted need and that the commissioner failed

to consider her necessary expense of $309.60 per month for real

estate expenses. We find no abuse of discretion in the

commissioner's reduction of several of Payne's alleged expenses.

Further, the record established that the commissioner indeed

considered the evidence that Payne presented with regard to the

$309.60 real estate tax expense.

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 As stated above, the commissioner carefully considered the

necessary factors and based his determination not on a specific

dollar amount, but upon the evidence presented and the relative

needs of the parties and their ability to pay. We find no

authority requiring the commissioner to determine a spousal

support award based upon an exact monetary figure, nor has

Joynes or Payne presented any such authority. To the contrary,

we have held that "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." Papuchis v. Papuchis, 2 Va. App. 130, 133, 341 S.E.2d

829, 831 (1986). Thus, we find that the evidence sufficiently

supports the commissioner's determination and, therefore, find

no abuse of discretion.

Finally, Code § 20-107.1 provides that "[t]he court, in its

discretion, may decree that maintenance and support of a spouse

be made in periodic payments for a defined duration, or in

periodic payments for an undefined duration, or in a lump sum

award, or in any combination thereof." Contrary to Joynes'

argument, this statute does not require the trial court to

specify the date of termination of a spousal support award. In

fact, the language allows the trial court to order an award for

an undefined duration. Thus, we find no abuse of discretion in

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the trial court's failure to specify a date of termination for

the award.

IV. Child Support

Joynes next contends that the trial court erred in

directing an upward deviation from the support dictated by the

guidelines, for the payment of Elizabeth's private school

tuition. Joynes also contends that the trial court "failed to

issue a ruling with respect to [Payne's] child support

obligation."

"Decisions concerning child support rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence." Smith v.

Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). Joynes

contends that the trial court lacked statutory authority to

order payments of child support for educational expenses.

However, Code § 20-108.1(B) clearly states that the presumptive

child support amount may be rebutted. Such a finding shall be

determined by considering several factors "affecting the

obligation, the ability of each party to provide child support,

and the best interests of the child." Code § 20-108.1(B). One

of these factors is "[d]irect payments ordered by the court for

. . . education expenses, or other court-ordered direct payments

for the benefit of the child." Code § 20-108.1(B)(6).

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 We have applied this language in finding that "a parent may

be required to pay for private educational expenses, even though

such expenses exceed the guidelines, when there is a

demonstrated need for the child to attend private school and the

parent has the ability to pay." Ragsdale v. Ragsdale, 30 Va.

App. 283, 295, 516 S.E.2d 698, 704 (1999) (citing Solomond v.

Ball, 22 Va. App. 385, 391, 470 S.E.2d 157, 160 (1996)). In

making this determination, the trial court must consider

"factors such as the availability of satisfactory public

schools, the child's attendance at private school prior to the

separation and divorce, the child's special emotional or

physical needs, religious training, and family tradition."

Solomond, 22 Va. App. at 391, 470 S.E.2d at 160.

In this case, it is clear that the commissioner considered

each of these factors in reaching his determination. Joynes'

argument that the commissioner should have given greater weight

to factors one and three is simply not supported by law.

Instead, the commissioner was merely required to consider these

factors in determining whether there was a need for Elizabeth to

attend a private school, and whether the parents possessed the

ability to pay. We find that there was sufficient evidence to

support the commissioner's determination and, therefore, that

there was no abuse of discretion.

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 Joynes next argues that the trial court failed to address

Payne's child support obligation. Joynes correctly states that

"[b]oth parents owe a duty of support to their minor children"

and that the obligation is calculated by considering the

"combined monthly gross income" of both parents. Bennett v.

Commonwealth, Dep't of Soc. Servs., 22 Va. App. 684, 691, 472

S.E.2d 668, 672 (1996); see Code § 20-108.2. Here, the

commissioner clearly considered both the imputed gross income to

Payne of approximately $80,000 per year, as required by Code

§ 20-108.1(B)(3), and Joynes' annual gross income in determining

the amount of support each parent would provide. We acknowledge

the principles that "parents cannot contract away their

children's rights to support" and that a court "can[not] . . .

be precluded by agreement from exercising its power to decree

child support." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d

55, 56 (1994). However, we find no indication that the level of

income the commissioner imputed to Payne was based on the

conclusion that any agreement between the parties relieved Payne

of any portion of her duty to support her children. See Brody

v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993) ("While

a family is intact, the parents' choice of occupations and the

family's standard of living are left to the parents' discretion

as long as the children's basic needs are met . . . . After

divorce, although a parent may voluntarily terminate his or her

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employment, he or she may not do so to the detriment of support

obligations to the children."). Rather, as we held in regard to

spousal support, any agreement of the parties was relevant

insofar as it impacted not on Payne's duty to support her

children but her ability to do so, i.e., her earning capacity

and ability to obtain full-time employment following the

dissolution of the marriage.

The commissioner, by way of his very detailed and lengthy

report, clearly considered the relevant evidence pertaining to

the necessary factors prior to making his determination

concerning the child support award. See Head v. Head, 24 Va.

App. 166, 178, 480 S.E.2d 780, 786-87 (1997) (holding that the

presumptive amount is rebuttable and that the court may deviate

from the presumptive amount if such amount is determined to be

unjust or inappropriate, in consideration of any relevant

evidence pertaining to the factors set forth in Code §§ 20-107.2

and 20-108.1).

Based upon the above, we find no abuse of discretion with

regard to the commissioner's determination of child support in

this matter. 5

5
We note that although the trial court affirmed and
incorporated the commissioner's report and factual
determinations into the final decree, the trial court awarded
child support in a different amount than that recommended by the
commissioner, presumably based upon the actual amount of private
school tuition. To the extent that the final amount of child

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 V. Equitable Distribution

Joynes next argues that the trial court's equitable

distribution award was erroneous to the extent it classified

contributions made to Joynes' 401(k) plan after March, 1998,

classified his 1998 bonus as marital property, classified

certain property as Payne's separate property, classified

Joynes' split-dollar life insurance policy as marital property,

and divided the marital assets on a 53%/47% basis. 6

support ultimately awarded differs from the commissioner's
award, we affirm the award of the trial court.
6
Code § 20-107.3(E) states that:

The amount of any division or transfer of
jointly owned marital property, and the
amount of any monetary award, the
apportionment of marital debts, and the
method of payment shall be determined by the
court after consideration of the following
factors:

1. The contributions, monetary and
nonmonetary, of each party to the well-being
of the family;

2. The contributions, monetary and
nonmonetary, of each party in the
acquisition and care and maintenance of such
marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental
condition of the parties;

5. The circumstances and factors which
contributed to the dissolution of the
marriage, specifically including any ground
for divorce under the provisions of

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 "Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it." Srinivasan, 10 Va. App. at 732, 396 S.E.2d at 678.

Here, after hearing the evidence, the commissioner ruled that

the parties' final separation occurred on November 28, 1998,

when the parties physically separated. We find the evidence

sufficient to support this finding and find that it is not

"plainly wrong." Accordingly, the commissioner correctly

determined that all payroll deductions earned and/or paid before

November 28, 1998 were marital property pursuant to Code

§ 20-107.3.

subdivisions (1), (3) or (6) of § 20-91 or
§ 20-95;

6. How and when specific items of such
marital property were acquired;

7. 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;

8. The liquid or non-liquid character of
all marital property;

9. The tax consequences to each party; and

10. Such other factors as the court deems
necessary or appropriate to consider in
order to arrive at a fair and equitable
monetary award.

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 Furthermore, we find no error in the commissioner's

classification of the entire lump-sum contribution made to the

401(k) plan in 1998 as marital property. No evidence was

presented to the commissioner establishing the amount or

percentage of the contribution that could be attributable to the

post-separation period of the parties. Therefore, his

recommendation in this regard was not plainly wrong.

Next, we find no error in the commissioner's determination

that a portion of the bonus received by Joynes in 1998 was

marital property. As the commissioner noted, although Joynes

was required to be employed by his employer at the end of 1998,

one month after the parties' separation, in order to receive the

bonus, the bonus represented compensation for Joynes' labor

during the entire year of 1998, and, thus, was property acquired

prior to the separation. See Luczkovich v. Luczkovich, 26 Va.

App. 702, 496 S.E.2d 157 (1998) (holding that severance pay

received post-separation was not marital property as the

condition to receive the pay was related to the sale of the

corporation, not to husband's work during his marriage).

We also find no error in the commissioner's determination

of certain property as Payne's separate property. The

commissioner apparently relied upon discovery responses

propounded by Payne, designating certain property as separate

property, as well as discovery responses propounded by Joynes

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denying that the property was separate property. "All property

acquired by either spouse during the marriage is presumed to be

marital property in the absence of satisfactory evidence that it

is separate property. . . . The party claiming that property

should be classified as separate has the burden to produce

satisfactory evidence to rebut this presumption." Stroop v.

Stroop, 10 Va. App. 611, 614-15, 394 S.E.2d 861, 863 (1990).

The valuation by the trial court "cannot be based on 'mere

guesswork.' [However,] [t]he burden is on the parties to

provide the trial court sufficient evidence from which it can

value their property." Bosserman v. Bosserman, 9 Va. App. 1, 5,

384 S.E.2d 104, 107 (1989) (quoting Taylor v. Taylor, 5 Va. App.

436, 443, 364 S.E.2d 244, 248 (1988)).

On appeal, Joynes has not pointed with specificity to any

item for which the commissioner was demonstrably in error in its

classification. Therefore, as the commissioner had at least

some evidence, which he found credible, upon which to base his

decision concerning the parties' personal property, we cannot

say on the record before us that he abused his discretion in

awarding Payne the designated items.

We further find that the commissioner did not err in

classifying a portion of Joynes' split-dollar life insurance

policy as marital property, despite the fact that Joynes could

only receive it based upon the occurrence of a future event. A

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witness from Joynes' employer testified that the plan was a

"deferred compensation" plan. Such benefits are classified as

marital property pursuant to Code § 20-107.3(G).

Finally, we see no error in the commissioner's distribution

of the assets based upon his consideration of the factors set

forth in Code § 20-107.3(E). The commissioner clearly

considered each of the factors required, in determining that

Joynes' higher level of compensation entitled him to more than

one-half of the assets, while Payne's monetary contributions, as

well as non-monetary contributions, also entitled her to a

substantial proportion of the assets. The record was replete

with evidence supporting this determination. Accordingly, we

cannot say that the commissioner abused his discretion in

fashioning the award in this manner.

VI. Attorney Fees

Joynes finally argues that the trial court inappropriately

awarded Payne 45% of her attorney fees as well as certain costs,

as recommended by the commissioner. We find no merit in Joynes'

argument that Payne was not a prevailing party, and, therefore,

not entitled to fees.

An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. See Graves v. Graves, 4 Va.

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

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award of counsel fees is reasonableness under all the

circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,

338 S.E.2d 159, 162 (1985).

Here, the commissioner very carefully considered the claims

involved in the divorce proceedings, as well as the complexity

of the matter, the outcome of the entire proceedings, and the

nature of the expenses, in determining his award. We find no

abuse of discretion in the commissioner's recommendation, or the

trial court's award under the circumstances of this case.

VII. Negative Imputation of Income

Finally, Payne asserts on cross-appeal that the

commissioner erred in imputing a negative non-monetary

contribution to her based on her termination of employment. In

the alternative, Payne argues that the commissioner incorrectly

quantified the negative non-monetary contribution.

As stated above, "decisions concerning equitable

distribution rest within the sound discretion of the trial court

and will not be reversed on appeal unless plainly wrong or

unsupported by the evidence." McDavid v. McDavid, 19 Va. App.

406, 407-08, 451 S.E.2d 713, 715 (1994). We have held that

"[c]ircumstances that lead to the
dissolution of the marriage but have no
effect upon marital property, its value, or
otherwise are not relevant in determining a
monetary award, need not be considered. A
trial court may only consider those
circumstances leading to the dissolution of
the marriage, that are relevant to

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 determining a monetary award in order to
avoid an unreasonable result."

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527, 458 S.E.2d 323,

326 (1995) (quoting Aster v. Gross, 7 Va. App. 1, 5-6, 371

S.E.2d 833, 836 (1988)). Here, the commissioner apparently

viewed Payne's conduct in terminating her employment as a factor

leading to the dissolution of the marriage and considered its

effect on the marital property. Indeed, Joynes testified that

he was against Payne's termination of employment. Thus, we

cannot hold that the trial court abused its discretion in

determining that Payne's action in this regard constituted a

negative non-monetary contribution to the marriage.

Furthermore, we find no authority requiring the trial court to

value the negative non-monetary contribution on a

dollar-for-dollar basis. Accordingly, we find no error in the

commissioner's failure to consider the child care expenses the

parties would have paid had Payne continued to work in

determining the effect of Payne's negative non-monetary

contribution.

We do not consider Payne's additional argument regarding

the quantification of the negative non-monetary contribution

because she raised no exception in this regard before the

commissioner and trial court and, therefore, failed to properly

preserve this issue for appeal. See Rule 5A:18.

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 In summary, we affirm the judgment of the trial court on

each of the issues raised by the parties. Further, we do not

find an award of attorney fees, in connection with this appeal

as requested by Payne in her response brief, to be appropriate.

Affirmed.

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