COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

REBECCA RUTH ROBINSON DOWDY 

 MEMORANDUM OPINION*

v. Record No. 0074-98-3 PER CURIAM 

 AUGUST 25, 1998 

OTIS L. DOWDY 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Diane McQ. Strickland, Judge 

 (Stephen B. Hebblethwaite, on brief), for 

appellant. 

 (Valeria L. Cook, on brief), for appellee. 

 Rebecca Ruth Robinson Dowdy appeals the final divorce decree 

entered by the circuit court. The decree granted her husband, 

Otis L. Dowdy, a divorce on the grounds of the parties' one-year 

separation, divided the parties' property, and set permanent 

spousal support. The circuit court had earlier referred child 

custody and support matters to the juvenile and domestic 

relations district court. On appeal, wife raises ten questions 

concerning the trial court's decisions on equitable distribution, 

spousal support, attorney's fees, and the conduct of the trial. 

We address each question below.1

 Upon reviewing the record and 

 

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

designated for publication. 

 1Wife listed additional questions for which she failed to 

provide any argument. "Statements unsupported by argument, 

authority, or citations to the record do not merit appellate 

consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 

S.E.2d 237, 239 (1992). Accordingly, we do not address these 

issues. 
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briefs of the parties, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the judgment of the 

trial court. See Rule 5A:27. 

Equitable Distribution

 Wife contends that the trial court abused its discretion 

when making its equitable distribution award by: (1) ordering an 

approximately equal division of the marital estate in light of 

wife's nonmonetary contributions to the acquisition and 

maintenance of the marital estate; (2) ordering wife to refinance 

the marital home and pay husband $26,500 for his interest 

therein; (3) awarding wife less than fifty percent of the marital 

share of husband's Virginia Retirement System (VRS) pension; (4) 

failing to classify each item of personal property; (5) awarding 

to husband certain personal property; and (6) excluding evidence 

regarding the classification of the parties' property. 

 Wife contends that her extensive nonmonetary contributions 

warranted an award of more than half the marital estate. The 

evidence demonstrated that husband made the greater monetary 

contributions but that wife made greater nonmonetary 

contributions. Wife also worked early in the marriage and at 

other times throughout the marriage. 

 "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 
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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, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 

(1989). 

 The trial court indicated that it considered the statutory 

factors set out in Code § 20-107.3(E), and we find no indication 

that the trial court misapplied those statutory factors. The 

parties were married for over twenty-five years. Husband was in 

good health. Wife described her health as "fragile" due to both 

physical and emotional problems. Both parties testified that 

wife contributed extensively to the family's welfare by 

maintaining the family home, managing the day-to-day needs of the 

family, and handling financial matters. Wife conceded on 

cross-examination that husband also made nonmonetary 

contributions to the family. Husband made the greater monetary 

contributions through his employment as an educator. 

 The marital home had a value of $127,000, with an 

outstanding first mortgage of $61,999. An equity credit line 

secured by the home had a balance of $10,767 at the time of 

separation. Wife withdrew an additional $29,233 on the credit 

line at the time of the separation. The trial judge awarded the 

husband $26,500 for his share of the marital home. In addition, 

wife received $19,500 for her share of the Sunnyvale property, 

valued at $30,000, and subject to a $3,320 credit to wife for her 
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separate contribution. Wife was ordered to pay less than half 

the outstanding balance on the parties' credit card, which had a 

balance of $10,385 at separation. 

 Wife received the marital home, credit of more than half the 

value of the Sunnyvale property, fifty-five percent of her 

pension and forty-five percent of husband's pension. We find no 

support for wife's contention that she received an inadequate 

share of the parties' marital assets. We also find no support 

for wife's assertion that the court required her to refinance the 

marital home. 

 Wife further contends that the trial court abused its 

discretion by awarding her forty-five percent of the marital 

share of husband's VRS pension. Under Code § 20-107.3(G)(1), no 

award of a percentage interest in a pension may exceed fifty 

percent of the marital share. The trial court awarded husband a 

forty-five percent interest in the marital share of wife's 

pension. As Virginia law has no presumption favoring equal 

division of marital property, see Papuchis v. Papuchis, 2 Va. 

App. 130, 132, 341 S.E.2d 829, 830-31 (1986), we cannot say that 

the trial court's division of husband's retirement benefits, as 

part of the entire equitable distribution award, was an abuse of 

discretion. 

 Wife also contends that the trial court abused its 

discretion by failing to classify each item of personal property 

and by failing to award her property which she claimed were gifts 
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or inherited. The parties each presented evidence as to the 

classification and value of their personal property. The record 

demonstrates that wife claimed virtually all property as either 

her own separate property or, at a minimum, marital property that 

she wanted. Very few items out of over five hundred were 

conceded by her to be property to which husband could assert any 

claim. "A person who claims ownership to property by gift must 

establish by clear and convincing evidence the elements of 

donative intent and actual or constructive delivery." Dean v. 

Dean, 8 Va. App. 143, 146, 379 S.E.2d 742, 744 (1989) (citing 

Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 632 (1968)). 

 Wife had the burden to prove that the items she claimed as her 

separate property were intended to be separate gifts to her, not 

to the family. Husband specifically testified, in response to a 

question from the court, that a piano, dining room table and 

chair, claimed by wife to be gifts, were purchased during the 

marriage with marital funds. Husband further testified that he 

believed all the items were accumulated during the marriage. The 

trial court heard the parties testify and was entitled to 

determine their credibility. On appeal, moreover, wife has not 

pointed with specificity to any item concerning which the trial 

court was demonstrably in error in its classification. 

Therefore, as the trial court had evidence, which it found 

credible, upon which to base its decision concerning the parties' 

personal property, we cannot say on the record before us that it 
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abused its discretion in awarding husband the designated items. 

 Wife also argues that the trial court erred by denying her 

the opportunity to rebut the presumption that property acquired 

during the marriage was marital. The parties were informed of 

the time constraints on the presentation of evidence. Wife was 

provided sufficient opportunity to present her case. Moreover, 

wife's contention that she was not allowed to introduce her 

father's will into evidence is not supported by the record. 

 In addition, wife contends that the trial court erred by 

refusing to admit her exhibit 23, which was a list typed by wife 

of gifts given to her by her father, purportedly signed by him 

and dated in October 1994. Wife attempted to authenticate the 

signature by testifying that she recognized the signature as her 

father's and that her father signed the document in her presence. 

 The record indicates that the court admitted wife's exhibit 23, 

subject to husband's objection to its authentication. The 

document itself contained hearsay, as it was presented to prove 

the truth of its out-of-court statements, i.e., that wife's 

father gave wife all the items listed. 

 "Hearsay evidence is testimony in court, or 

written evidence, of a statement made out 

of court, the statement being offered as an 

assertion to show the truth of matters 

asserted therein, and thus resting for its 

value upon the credibility of the 

out-of-court asserter." 

Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 

(1977) (citation omitted). Wife's father was deceased. 
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 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The 

court stated, "I will consider it for the record after I have had 

an opportunity to review it." There is no further reference to 

the exhibit in the record, and it is unclear the extent to which 

the trial court considered this document. The trial court's 

refusal to admit this document, which the record does not 

definitively establish, was not error. It was clearly hearsay. 

Pendente Lite Spousal Support

 Wife contends that the trial court abused its discretion 

when it suspended her pendente lite spousal support and 

subsequently denied her motion to reinstate the support. 

"Whether to grant pendente lite support lies within the sound 

discretion of the trial judge." Weizenbaum v. Weizenbaum, 12 Va. 

App. 899, 905, 407 S.E.2d 37, 40 (1991). Cf. Frazer v. Frazer, 

23 Va. App. 358, 375-76, 477 S.E.2d 290, 298 (1996) (abuse of 

discretion to limit pendente lite support to three-month period 

when wife had demonstrable need and no rationale appeared in the 

record to justify the time limitation). 

 The record demonstrates that the trial court suspended 

wife's pendente lite support after granting her request for a 

third continuance. The first continuance was due to an emergency 

concerning the parties' child. However, the next two 
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continuances were sought by wife for health-related reasons. In 

granting the third continuance, the court noted that "there will 

be no further continuances granted in this case unless one of the 

parties is hospitalized." Based upon the record, we find no 

abuse of discretion in the trial court's decision to suspend 

wife's pendente lite spousal support upon its granting of her 

motion to continue. 

Attorney's Fees and Costs

 Wife contends that the trial court abused its discretion by 

failing to award her attorney's fees and costs. 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 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). 

Based on the number of issues involved, each party's cooperation 

in moving the matter forward, and the respective abilities of the 

parties to pay, we cannot say that the trial court abused its 

discretion in ordering the parties to bear their individual 

attorneys' fees and costs. 

Spousal Support

 Wife further contends that the trial court abused its 

discretion when it awarded her only $375 per month in spousal 

support. "[T]he decision to award spousal support rests within 
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the sound discretion of the trial court. However, such 

discretion is not absolute and is subject to review for abuse." 

Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992). 

 In awarding spousal support, the chancellor 

must consider the relative needs and 

abilities of the parties. He is guided by 

the nine 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). 

 Wife contends that husband's greater income, her current 

inability to hold gainful employment, the length of the marriage, 

the standard of living established during the marriage, and the 

expenses for which wife was obligated under the equitable 

distribution award demonstrate that the trial court abused its 

discretion in awarding her only $375 in monthly spousal support. 

 Husband's gross monthly income was $4,571. Husband's expenses 

include costs for the parties' children, including $400 per month 

in fees for the school placement of the younger child, and 

college-related costs for the older child. 

 Wife claimed monthly expenses of $3,360 and only $65 in 

monthly interest income. On cross-examination, wife testified 

that some of her listed costs were attributable to real estate 

work, although she was not currently working. Wife had separate 

earnings through 1994, although the annual amount varied from 
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$1,223 in 1986 to more than $23,000 as recently as 1993. In 

addition, wife testified that she had over $77,000 in separate 

funds in 1995. She admitted that she had inherited her father's 

home, but she was unwilling to rent it. Wife claimed a number of 

items of personalty on the basis that she purchased them after 

the separation. 

 Wife received the marital home, subject to its outstanding 

mortgages. A portion of the debt encumbering the marital home 

was wife's debt of $29,233, which she withdrew on the equity 

credit line after the separation. While wife was ordered to pay 

husband $26,500 for his interest in the marital home, husband was 

ordered to pay wife $19,500 for her interest in the Sunnyvale 

property. Thus, the net payment by wife was substantially less 

than $26,500. Wife was also ordered to pay $4,000 in credit card 

debt and ordered to pay her own attorney's fees and costs. 

 The record demonstrates that the trial court considered all 

the statutory factors, including the evidence of wife's current 

inability to work. The trial court heard the parties testify, 

and its determination of the parties' credibility is inherent in 

its weighing of the evidence. We cannot say, based upon the 

record, that the trial court's decision was an abuse of 

discretion. 

Referral to Commissioner in Chancery

 Wife argues that the trial court abused its discretion when 

it refused to hear evidence of her fault-based grounds of divorce 
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ore tenus. This argument is without merit. The trial court 

ruled that, if wife wished to present evidence to support the 

fault grounds of divorce alleged in her cross-bill, 

 all matters regarding the fault grounds of 

divorce shall be referred to a Commissioner 

in Chancery to take evidence and report his 

findings and recommendations to the Court 

and the cost for the Commissioner shall 

initially be paid by [wife] in advance 

subject to reallocation by the Court. 

 We find no abuse of discretion in the trial court's ruling. 

 Wife was neither precluded from presenting her evidence nor 

ordered to pay the full final costs associated with the 

commissioner's hearing. "We find it entirely compatible with the 

practice and statutory law of the Commonwealth for a court to 

refer questions regarding the circumstances and factors which 

contributed to the dissolution of the marriage to a commissioner 

in chancery." Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d 

866, 869 (1990). 

 The use of commissioners in chancery 

has been of long standing in Virginia. 

Code § 8.01-607 authorizes each circuit 

court to "appoint such commissioners in 

chancery as may be deemed necessary for the 

convenient dispatch of the business of the 

court." The question of when it is proper, 

or may be useful, to resort to the aid of a 

commissioner is one which addresses itself 

to the sound discretion of the court. 

Id. The trial court did not abuse its discretion in requiring 

that the party asserting fault grounds pay the initial expenses 

attributable to pursuing those allegations. Wife was not denied 

the chance to present evidence supporting her allegations of 
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fault, and her contention otherwise is not supported by the 

record. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.