COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Coleman and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

STEPHEN A. SHARP 

 MEMORANDUM OPINION* v. Record No. 0469-97-4 BY JUDGE CHARLES H. DUFF 

 JUNE 2, 1998 

LYNN C. (SHARP) WILSON 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

William G. Plummer, Judge Designate 

 Stephen A. Sharp, pro se. 

 No brief or argument for appellee. 

 Stephen A. Sharp (father) appeals the decision of the 

circuit court awarding child support to Lynn C. (Sharp) Wilson 

(mother). Father contends that the trial court (1) erred by 

awarding child support retroactive to the date of the original 

petition; (2) erred in determining the amount of child support 

based upon assets and income unavailable to father; (3) abused 

its discretion by failing to follow the statutory child support 

guidelines; and (4) abused its discretion by awarding attorney's 

fees to mother. 

Retroactivity of Child Support Award

 We find no error in the trial court's decision to order the 

payment of child support as of the date of this Court's opinion 

reversing the previous child support decree. Code § 20-108.1(B) 

 

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

designated for publication. 
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expressly provides: "Liability for support shall be determined 

retroactively for the period measured from the date that the 

proceeding was commenced by the filing of an action with the 

court provided the complainant exercised due diligence in the 

service of the respondent." While father contends that this 

amendment cannot be applied in this case as it was not effective 

until July 1, 1996, we find that the amendment was procedural, 

not substantive. It did not create a new right, but merely 

expanded the remedy. See Forbes v. Kenley, 227 Va. 55, 60, 314 

S.E.2d 49, 52 (1984). Moreover, while equitable distribution is 

determined under the version of the statute in effect at the time 

the matter was filed, child support is determined based upon the 

current circumstances and under the current statutes. "[T]he 

statutory scheme established by Code §§ 20-107.2, -108, -108.1, 

and -108.2, and related enactments, manifest a clear legislative 

intent that the courts of this Commonwealth determine the issue 

of child support with contemporaneity, in consideration of 

prevailing circumstances and consistent with existing 

guidelines." Cooke v. Cooke, 23 Va. App. 60, 65, 474 S.E.2d 159, 

161 (1996). Father's argument that the court lacked authority to 

order child support payable for the period during which the 

petition was pending is without merit. 

Inclusion of Father's Assets in Support Determination

 In the previous appeal, we found that the trial court erred 

 "in failing to consider [father's] 'financial resources' as 
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required by Code § 20-108.1(B)(11), as well as his actual income" 

when determining the amount of child support under Code 

§ 20-108.2. L.C.S. v. S.A.S., 19 Va. App. 709, 718, 453 S.E.2d 

580, 585 (1995). The trial court failed to include annual 

interest income from several large accounts owned by father. In 

this appeal, father contends that the trial court erred by 

attributing to him income from those assets because mother 

attached them for possible satisfaction of a judgment in a 

related civil tort action filed on behalf of his son. 

 Evidence of father's assets was produced at the July 1996 

hearing, and incorporated as a whole without objection at the 

January 30, 1997 hearing. Father had two interest-bearing 

accounts valued at approximately $178,000, which earned 

approximately $416.94 per month in income. 

 While mother attached these accounts in connection with the 

pending tort claim she filed on behalf of the parties' son, the 

record before us is unclear as to the status of the attachment 

proceeding. The record shows that in a hearing on July 2, 1996, 

mother agreed that she would execute whatever documents necessary 

to release the interest on the two accounts from the attachment 

so that it could be applied to child support. At a subsequent 

hearing on January 30, 1997 in a colloquy with the court, father 

represented that such release documents had not been signed by 

mother. The trial court observed that it had no authority to 

order funds released in a law action over which it had no 
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jurisdiction. The court undoubtedly viewed the interest as 

income to father and properly observed that the support payments 

would become a judgment against father, to be satisfied from 

whatever assets were available. The trial court further stated 

that father's lack of access to such funds might well be a valid 

defense to any future claim of contempt for non-payment of 

support. 

 We view the court's reasoning to be that the attachment may 

or may not be valid. It represented a mere claim against those 

assets and, in the absence of a showing that the attachment has 

been decided adverse to father, the interest income should be 

imputable to him. On the record before us, we find no bar to the 

consideration of such interest as income. 

Determination of Child Support

 Father contends that the trial court failed to consider the 

statutory factors and failed to set out in sufficient detail the 

grounds for its deviation from the guideline amount of child 

support. We find both contentions without support in the record. 

 The trial court found father's monthly income to be $458, based 

upon wages of $42 and interest income of $416. "Gross income" as 

defined in Code § 20-108.2 

 shall mean all income from all sources, and 

shall include, but not be limited to, income 

from salaries, wages, commissions, royalties, 

bonuses, dividends, severance pay, pensions, 

interest, trust income, annuities, capital 

gains, social security benefits except as 

listed below, workers' compensation benefits, 

unemployment insurance benefits, disability 

insurance benefits, veterans' benefits, 
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spousal support, rental income, gifts, prizes 

or awards. 

Code § 20-108.2(C) (emphasis added). The trial court properly 

included father's interest income from the two interest-bearing 

accounts in its calculation of father's gross income. 

 Furthermore, in compliance with the statute, the trial court 

first calculated the amount of child support presumed to be 

correct under the guidelines. Code §§ 20-108.1(B), 20-108.2(A), 

(B). Then, in writing, the trial court found that a "deviation 

from the guidelines is appropriate in light of the demonstrated 

needs of the child and the inadequacy of the presumptive amount 

to meet those needs." The court set the amount of monthly child 

support at $375. We find no indication that the trial court 

failed to follow the statutory requirements, failed to consider 

the statutory factors, or abused its discretion in determining 

the amount of the deviation. See Richardson v. Richardson, 12 

Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). 

 We find no merit in father's contention that the court's 

limits on his discovery requests deprived him of a fair hearing 

and due process of law. Mother introduced evidence of her 

current income and expenses. Father, who was a practicing 

attorney prior to his incarceration, cross-examined her on those 

expenses. The trial court considered father's arguments that 

mother's expenses were inflated, but noted, as conceded by 

father, that mother's income remained insufficient to cover the 

expenses for her and the parties' child. We find no evidence 
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that father was deprived due process of law. 
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Attorney's 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 

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). Mother submitted evidence that she 

incurred an additional $2,000 in attorney's fees. Contrary to 

father's claim, we find no indication that these expenses were 

the result of counsel's negligence or wastefulness. Father had 

assets, including escrowed funds from the sale of the parties' 

real estate, with which to satisfy the payment. We cannot say 

that the award was unreasonable or that the trial judge abused 

his discretion in making the award. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed.