COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

LEWIS A. WILMOTT 

 MEMORANDUM OPINION* BY 

v. Record No. 1260-96-4 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 4, 1997 

SHEILA D. WILMOTT 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas A. Fortkort, Judge Designate 

 Miriam L. Kinner for appellant. 

 Peter M. Fitzner (Shoun & Bach, P.C., on 

brief), for appellee. 

 On appeal from a final decree granting his wife, Sheila D. 

Wilmott, a divorce, Lewis A. Wilmott contends that the trial 

court erred (1) in granting Ms. Wilmott a divorce on the ground 

of desertion, (2) in valuing the parties' deferred compensation 

plans on the date of the equitable distribution hearing, (3) in 

the division of the deferred compensation plans, (4) in valuing 

real property without regard to the tax consequences if the 

property were sold or to its actual value, (5) in the equitable 

distribution of the marital assets, and (6) in awarding Ms. 

Wilmott spousal support. We find no error and affirm the 

judgment of the trial court. 

 Mr. and Ms. Wilmott were married on July 12, 1975 and 

separated on August 8, 1994. They have two children, one of whom 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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is now emancipated. Mr. Wilmott is a salesman for General Mills, 

Inc. and Ms. Wilmott is an administrative assistant for Mobil 

Corporation. 

 In August, 1994, Mr. Wilmott abandoned the marital residence 

without telling Ms. Wilmott or their children. The commissioner 

in chancery reported that Ms. Wilmott had proven desertion, but 

recommended that a divorce be granted on the ground of separation 

for one year. The trial court rejected this recommendation and 

on April 25, 1996 granted Ms. Wilmott a divorce on the ground of 

desertion. 

 The parties stipulated that Ms. Wilmott would retain the 

marital residence (equity $116,000), and Mr. Wilmott would retain 

their New York rental property (equity $77,400). They requested 

equitable distribution of their remaining marital assets. 

 The trial court awarded Ms. Wilmott an automobile ($4,950), 

land in Florida (equity $1,900), her Mobil deferred compensation 

plan ($146,826), $500 monthly spousal support and $429 monthly 

child support. Mr. Wilmott received his General Mills deferred 

compensation plan ($65,537). The parties stock holdings ($3,100) 

were divided equally in kind. The decree required Ms. Wilmott to 

pay the parties' joint debts: credit cards ($20,706) and a time 

share ($7,006). Mr. Wilmott was required to repay a loan to his 

brother ($800). 

I. 

GROUND FOR DIVORCE
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 Mr. Wilmott first contends that the trial court erred in 

granting Ms. Wilmott a divorce on the ground of desertion. He 

argues that the evidence did not prove that his alleged desertion 

caused an economic loss to the family and that the trial court 

erroneously rejected the commissioner's recommendation to grant a 

divorce on the ground that the parties had lived apart for one 

year. 

 "On appellate review, a divorce decree is presumed correct 

and will not be overturned if supported by substantial, 

competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va. 

App. 77, 83, 448 S.E.2d 666, 670 (1994). "'Under familiar 

principles we view [the] evidence and all reasonable inferences 

in the light most favorable to the prevailing party below. 

Where, as here, the court hears the evidence ore tenus, its 

finding is entitled to great weight and will not be disturbed on 

appeal unless plainly wrong or without evidence to support it.'" 

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 

631 (1988) (citation omitted). 

 The chancellor did not abuse his discretion in granting Ms. 

Wilmott a divorce on the ground of desertion. Where, as here, 

the evidence proves dual grounds for a divorce, the trial court 

may exercise its sound discretion in selecting the appropriate 

ground upon which the divorce is granted. Zinkhan v. Zinkhan, 2 

Va. App. 200, 210, 342 S.E.2d 658, 663 (1986). Ample, credible 

and substantial evidence supports the trial court's finding that 
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Mr. Wilmott deserted Ms. Wilmott. 

 We find no error in the trial court's decision to award Ms. 

Wilmott a divorce on the ground of desertion. 

II. 

 VALUATION DATE

 Mr. Wilmott next contends that the trial court should have 

valued the parties deferred compensation plans as of the date of 

separation, rather than as of the date of the equitable 

distribution hearing. We find no error in the trial court's 

valuation of the plans on the date of the evidentiary hearing. 

 Code § 20-107.3(A) provides that absent good cause, "[t]he 

court shall determine the value of any such property as of the 

date of the evidentiary hearing . . . ." Mr. Wilmott argues that 

valuing the plans as of the date of the evidentiary hearing was 

unfair because he continued to place funds into his deferred 

compensation plan after the date of separation, while Ms. Wilmott 

depleted the funds in her plan. While the dissipation of marital 

assets could justify an alteration of the valuation date, the 

trial court concluded that Ms. Wilmott's plan withdrawals 

constituted reasonable living expenses that were necessitated by 

Mr. Wilmott's desertion. See Amburn v. Amburn, 13 Va. App. 661, 

664-66, 414 S.E.2d 847, 849-51 (1992). 

 Furthermore, the chancellor awarded the parties their 

respective deferred compensation plans. Therefore, 

classification of post-separation contributions as separate 
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property was not an issue. 
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III. 

 EQUITABLE DISTRIBUTION 

 "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 v. Srinivasan, 10 Va. App. 728, 732, 396 

S.E.2d 675, 678 (1990). Moreover, we will not reverse an award, 

"[u]nless it appears from the record that the chancellor has 

abused his discretion, that he has not considered or has 

misapplied one of the statutory mandates, or that the evidence 

fails to support the finding of fact underlying resolution of the 

conflict in the equities . . . ." Smoot v. Smoot, 233 Va. 435, 

443, 357 S.E.2d 728, 732 (1987). 

 Mr. Wilmott presents two assignments of error involving the 

equitable distribution of the marital assets. He contends that 

the trial court erred (1) in failing to distribute the parties' 

marital property equitably, and (2) in basing the award to the 

parties of their respective deferred compensation plans upon 

their work effort and probable future contributions to their 

respective plans. We disagree. 

 The trial court considered the factors set forth in Code 

§ 20-107.3(E) and applied them to the facts. Specifically, the 

trial court considered: (1) that Mr. Wilmott deserted Ms. 

Wilmott, (2) the values of various marital assets and the 

parties' debts, (3) that Ms. Wilmott has controllable glaucoma, 
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(4) that Ms. Wilmott's deferred compensation plan pre-dated the 

parties' marriage by three years, (5) that Mr. Wilmott had earned 

a degree in business administration from Fordham University, and 

(6) that both parties made equal monetary and non-monetary 

contributions to the marriage. 

 When considering the statutory factors contained in Code 

§ 20-107.3(E), the trial court "is not required to quantify the 

weight given to each, nor is it required to weigh each factor 

equally, though its consideration must be supported by the 

evidence." Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 

432, 436 (1991). Moreover, there is no presumption or 

requirement of equal division. Papuchis v. Papuchis, 2 Va. App. 

130, 132, 341 S.E.2d 829, 830-31 (1986). Due to the disparity in 

the allocation of assets caused by the valuation of the real 

property, and considering the tax consequences associated with 

the properties, the chancellor required that Ms. Wilmott pay 

$27,712 in joint marital debts. The evidence supports the 

distribution of the marital assets. 

 Mr. Wilmott argues also that the chancellor erred in 

distributing to the parties their respective deferred 

compensation plans. He maintains that the chancellor incorrectly 

stated in his opinion letter that because the parties deferred 

compensation plans "represent their work effort, years of 

employment, as well as probable future contributions to their 

respective plans the Court directs that each party maintain their 
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current plans . . . ." We find no abuse of discretion in this 

determination. 

 After reviewing the factors in Code § 20-107.3(E), and 

within the scheme of the entire equitable distribution, the 

chancellor was authorized to consider the unequal efforts made by 

Mr. and Ms. Wilmott toward the acquisition of their deferred 

compensation plans and, accordingly, to grant their respective 

plans to the parties. See Artis v. Artis, 10 Va. App. 356, 362, 

392 S.E.2d 504, 507-08 (1990). 

IV. 

VALUING REAL PROPERTY

 Mr. Wilmott contends that the trial court erred in valuing 

his New York City property. He argues that the gross value 

calculated for equitable distribution by the chancellor did not 

take into account the possible tax consequences of a hypothetical 

sale of the property, or the actual value of the property given 

its location and declining tax assessments. Thus, Mr. Wilmott 

claims that he was deprived of a greater share of the marital 

assets because of the trial court's use of an inflated asset 

value. We find no error in the trial court's valuation of the 

real property. 

 The parties stipulated that Mr. Wilmott would receive the 

New York City rental property and reserved the opportunity to 

request an offset for purposes of equitable distribution. The 

fair market value of the rental property was $150,000; the 
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outstanding mortgage obligation was $72,600. The trial court 

valued the property at $77,400. The property generates $1,450 in 

monthly rent. 

 Considering the factors set forth in Code § 20-107.3(E), the 

trial court found that Mr. Wilmott could suffer substantial tax 

consequences if he sold the New York City rental property. 

Contrary to Mr. Wilmott's assertions, the trial court was not 

obliged to speculate as to the hypothetical value of the rental 

property or to speculate as to future tax liability and 

assessments. See Arbuckle v. Arbuckle, 22 Va. App. 362, 470 

S.E.2d 146 (1996). Mr. Wilmott neither expressed an intention to 

sell the rental property nor presented evidence that a sale would 

occur in the near future. 

 V. 

 SPOUSAL SUPPORT

 Mr. Wilmott contends that the trial court erred in awarding 

Ms. Wilmott $500 in monthly spousal support. He argues that the 

award sought to punish him for desertion and to further 

compensate Ms. Wilmott for receiving the marital residence. 

 "When a [trial] court awards spousal support based upon due 

consideration of the factors enumerated in Code § 20-107.1, as 

shown by the evidence, its determination 'will not be disturbed 

except for a clear abuse of discretion.'" Huger v. Huger, 16 Va. 

App. 785, 791, 433 S.E.2d 255, 259 (1993) (citation omitted). 

 Where a claim for support is made by a party 

who has been held blameless for the marital 

breach, the law imposes upon the other party 
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a duty, within the limits of his or her 

financial ability, to maintain the blameless 

party according to the station in life to 

which that party was accustomed during the 

marriage. 

Gamble v. Gamble, 14 Va. App. 558, 573-74, 421 S.E.2d 635, 644 

(1992). 

 Mr. Wilmott's desertion and Ms. Wilmott's blamelessness, as 

determined by the chancellor, provide ample support for the trial 

court's determination that Ms. Wilmott is entitled to a spousal 

support award pursuant to Code § 20-107.1. Having reviewed the 

record, we also conclude that the trial court's findings were 

supported by the evidence and justify the award of spousal 

support to Ms. Wilmott. 

 In his letter opinion, the chancellor reviewed all of the 

factors in Code § 20-107.1. While finding that the parties made 

equal non-monetary and monetary contributions to the marriage, 

the trial court found: (1) that Mr. Wilmott deserted Ms. 

Wilmott; (2) that Mr. Wilmott is two years younger than Ms. 

Wilmott and in good health, while Ms. Wilmott has an incurable, 

but controllable, eye disease; (3) that the parties had a long 

marriage and enjoyed an upper middle class standard of living; 

(4) that the distribution of assets leaves Mr. Wilmott with fewer 

assets, but he is debt-free and has minimal expenses; and (5) 

that Mr. Wilmott earned a college degree and that his income 

increased over the last several years. 

 Citing Gamble, Mr. Wilmott contends that the award was not 
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"fair and just" and was fashioned so as to effectively require 

him to satisfy the mortgage obligations on the marital home 

received by Ms. Wilmott. Mr. Wilmott's reliance upon Gamble is 

misplaced. 

 In Gamble, we held it an abuse of discretion to predicate an 

award of spousal support upon a need to pay the mortgage 

obligations on a marital residence received in equitable 

distribution. While the outstanding mortgage payments on marital 

property are properly considered in equitable distribution, they 

should not be factored again in determining the spousal support 

award. See id. at 577, 421 S.E.2d at 646. In this case, we find 

no indication that the trial court based the spousal support 

award upon Ms. Wilmott's obligation to pay the mortgage on the 

marital residence. Therefore, we affirm the chancellor's award 

of spousal support to Ms. Wilmott. 

 Affirmed.