COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

STEPHEN M. SMITH 

 MEMORANDUM OPINION*

v. Record No. 2801-95-3 PER CURIAM 

 JULY 16, 1996 

JUDY CHAFFIN SMITH 

FROM THE CIRCUIT COURT OF PULASKI COUNTY 

Colin R. Gibb, Judge 

 (Debra Fitzgerald-O'Connell; Gilmer, Sadler, 

Ingram, Sutherland & Hutton, on brief), for 

appellant. 

 (Edwin C. Stone; Clifford L. Harrison; Stone, 

Harrison, Turk & Showalter, on brief), for 

appellee. 

 Stephen M. Smith (husband) appeals the decision of the 

circuit court awarding spousal support to Judy Chaffin Smith 

(wife) and deciding other issues. Husband raises the following 

issues on appeal: (1) whether the trial court erred in ordering 

husband to pay $5,000 as part of the equitable distribution of 

the parties' marital personal property; (2) whether the trial 

court erred in awarding wife the maximum share of all real and 

intangible personal property; (3) whether the trial court erred 

in awarding wife spousal support; and (4) whether the trial court 

erred in awarding wife $1,000 in attorney's fees. 

 Upon reviewing the record and briefs of the parties, we 

conclude that this appeal is without merit. Accordingly, we 

 

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

designated for publication. 
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summarily affirm the decision of the trial court. Rule 5A:27. 

Equitable Distribution Monetary Award

 The evidence was heard by the commissioner in chancery, 

whose report was accepted by the trial court. 

The commissioner's report is deemed to be 

prima facie correct. The commissioner has 

the authority to resolve conflicts in the 

evidence and to make factual findings. When 

the commissioner's findings are based upon 

ore tenus evidence, "due regard [must be 

given] to the commissioner's ability . . . to 

see, hear and evaluate the witness at first 

hand." Because of the presumption of 

correctness, the trial judge ordinarily must 

sustain the commissioner's report unless the 

trial judge concludes that it is not 

supported by the evidence. 

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) 

(citations omitted). "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." Hill v. Hill, 227 Va. 569, 577, 318 

S.E.2d 292, 296 (1984) (citation omitted). This Court must 

affirm the trial court's decision unless it is plainly wrong or 

without evidence to support it. McLaughlin v. McLaughlin, 2 Va. 

App. 463, 466-67, 346 S.E.2d 535, 536 (1986). 

 The commissioner considered the statutory factors before 

recommending the equitable distribution scheme ultimately 

accepted by the trial court. Code § 20-107.3(E). Both parties 

contributed to the acquisition and maintenance of the marital 

home and other marital assets, although husband provided most of 

the financial contributions. The marital assets of husband's 
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pension, 401K, and thrift plans were acquired through husband's 

employment. Wife worked part-time throughout most of the 

marriage, but she did not have substantial earnings or accrue 

extensive retirement benefits. Husband retained the marital home 

and most of the furnishings, although wife removed some 

furnishings when she left the home. 

 Husband retained two vehicles worth approximately $12,000, 

plus furnishings worth $4,000. While husband asserts that the 

value of a piano and the furniture in his daughters' rooms should 

not be assessed against him, there was evidence that these items 

were marital assets which remained in his possession in the 

marital home. Wife retained a vehicle and furnishings worth 

approximately $5,000. Therefore, as there was evidence to 

support the commissioner's recommended monetary award to wife of 

$5,000, we cannot say the trial court's decision to accept that 

recommendation was plainly wrong or unsupported by the evidence. 

Award of Fifty Percent Interest

 The commissioner recommended that wife receive fifty percent 

of the marital share of husband's pension and retirement 

accounts. This award conformed with the statutory requirements. 

See Code § 20-107.3(G). The statute contains no comparable 

limitation on an award of other marital assets. While 

"Virginia's statutory scheme of equitable distribution does not 

have a presumption favoring an equal distribution of assets," 

Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d 572, 577 
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(1992), we cannot say the award of a fifty percent interest in 

other marital assets, including the marital home, was an abuse of 

discretion or unsupported by the evidence. 

Spousal Support

 Code § 20-107.1 provides that, upon entry of a decree of 

divorce, "the court may make such further decree as it shall deem 

expedient concerning the maintenance and support of the spouses." 

 While the statute provides that "no permanent maintenance and 

support shall be awarded from a spouse if there exists in such 

spouse's favor a ground of divorce under the provisions of 

subdivision (1) of § 20-91," the court may nonetheless award 

support to a spouse guilty of adultery "if the court determines 

from clear and convincing evidence, that a denial of support and 

maintenance would constitute a manifest injustice . . . ." 

 Husband was awarded a divorce on the grounds of wife's 

desertion. His assertion of adultery as a ground was found to be 

unsupported by the evidence. Therefore, Code § 20-107.1 did not 

preclude an award of support to wife. The trial court found that 

wife was entitled to $200 per month in spousal support. In 

awarding spousal support, the trial court noted that it had 

reviewed the statutory factors, "particularly the earning 

capacities of the parties, the duration of the marriage, and the 

contributions made by the parties to the well-being of the family 

during the marriage." 

 Both parties contributed to the marriage, with wife making 
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the majority of the non-financial contributions and husband 

making the majority of the financial contributions. Husband 

earned $4,036 per month, compared to wife's monthly income of 

$1,624. Husband retained the marital home. The parties had a 

twenty-six year marriage which they each described as good until 

serious problems erupted in 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). The trial court considered the statutory factors, and we 

cannot say that the court abused its discretion in making its 

determination. 

 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. 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. 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). 

 Husband had substantially greater income. The commissioner 

found that the evidence did not support husband's allegations of 

adultery. Based on the number of issues involved and the 
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respective abilities of the parties to pay, we cannot say that 

the award was unreasonable or that the trial court abused its 

discretion in making the award. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.