COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Lemons∗

Argued at Richmond, Virginia 

JOHN E. CLARK 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 0827-99-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 27, 2000 

LINDA J. CLARK 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Christopher L. Perkins (L. B. Cann, III; 

LeClair Ryan, on briefs), for appellant. 

 Ronald S. Evans (Brenner, Dohnal, Evans & 

Yoffy, P.C., on brief), for appellee. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

John E. Clark appeals the final order granting equitable 

distribution of his marital estate and other relief. He 

contends that the trial judge erred by (1) awarding Linda J. 

Clark, the wife, eighty-five percent of the marital assets, 

(2) failing to classify the parties' furniture and other 

household items as either marital or separate property, (3) 

classifying an automobile as the wife's separate property, and 

(4) finding that the wife was entitled to a judgment against the 
husband for a child support arrearage. The wife contends on 

cross-appeal that the trial judge erred by (1) classifying the 

stipulated increase in value of CM&H Lumber Company, Inc. as the 

husband's separate property, (2) failing to accept the 

commissioner's recommendation that the wife be awarded spousal 

support, and (3) failing to accept the commissioner's 

recommendation that the wife be awarded attorney's fees and 

costs. We affirm, in part, and reverse, in part, the judgment. 

I. 

The husband failed to preserve for appeal several issues. 

Rule 5A:18 provides that "[n]o ruling of the trial court . . . 

will be considered as a basis for reversal unless the objection 

was stated together with the grounds therefor at the time of the 

ruling, except for good cause shown or to enable the Court of 

Appeals to attain the ends of justice." As we have repeatedly 

ruled, "[t]he purpose of Rule 5A:18 is to provide the trial 

[judge] with the opportunity to remedy any error so that an 

appeal is not necessary." Knight v. Commonwealth, 18 Va. App. 

207, 216, 443 S.E.2d 165, 170 (1994); see also Lee v. Lee, 12 

Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). 

The husband contends the trial judge failed to classify the 

parties' furniture and other property. In his fifth exception 

to the Commissioner's Report, the husband objected as follows: 

V. Marital Property Contributions - 

Monetary and Non-Monetary. The Commissioner 

finds on Page 5, Paragraph v, of the Report 

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that the Wife provided the greater portion 

of the care and maintenance of the marital 

property. However, in the transcripts, the 

evidence clearly shows that not to be true. 

This exception clearly does not preserve the husband's objection 

to the trial judge's failure to classify the marital property. 

It does not address that issue, and no other objection in the 

record addresses the issue of classification. 

 The husband also contends that the trial judge erred in 

classifying a 1994 Chrysler New Yorker automobile as the wife's 

separate property. The record again fails to establish that he 

objected. The husband's second and seventh exceptions to the 

commissioner's report read as follows: 

II. Separate Property. We take exception 

with the Commissioner's finding on page 4 of 

said Report that he should pay for her bar 

debt. "This is her separate property and 

debt," according to the findings of the 

Commissioner; therefore, she is responsible 

for said debt. 

VII. Personal Expenditures. We except to 

the fact that the husband purchased personal 

items such as expensive clothing and 

vehicles. It was the standard of living 

which the parties had grown accustomed 

during the marriage to spend on such items; 

therefore, he should not be penalized for 

same. 

Nothing in these exceptions, on which the husband relies, 

supports his claim that he objected to the trial judge's 

determination that the automobile was the wife's separate 

property. 

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The husband further contends that his trial counsel 

preserved the objection to both assignments of error when she 

signed the Final Order, "Seen and Objected To." Such an 

objection "'does not preserve an issue for appeal unless the 

record further reveals that the issue was properly raised for 

consideration by the trial court.'" Konefal v. Konefal, 18 Va. 

App. 612, 615, 446 S.E.2d 153, 153 (1994) (citation omitted). 

Moreover, the husband did not timely file the transcript of the 

hearing at which he argued the exceptions to the commissioner's 

report. 

The record, therefore, provides no indication that the 

husband raised either of these issues in the trial court. Upon 

our review, we find no reason in the record to invoke the good 

cause or ends of justice exceptions to Rule 5A:18. 

"[T]he ends of justice exception is narrow 

and is to be used sparingly. . . ." "[I]t 

is a rare case in which, rather than invoke 

Rule [5A:18], we rely upon the exception and 

consider an assignment of error not 

preserved at trial. . . ." In order to 

avail oneself of the exception, a defendant 

must affirmatively show that a miscarriage 

of justice has occurred, not that a 

miscarriage of justice might have occurred. 

The trial error must be "clear, substantial 

and material." 

Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 

272 (1997) (emphasis in original) (citations omitted). The 

record does not establish that a miscarriage of justice 

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occurred; therefore, Rule 5A:18 bars our consideration of issues 

two and three on appeal. 

II. 

 The husband contends that the trial judge's decision to 

award the wife eighty-five percent of the marital assets was 

unsupported by the evidence. In our review, we are guided by 

the principle that "[u]nless it appears from the record that the 

[trial judge] 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 findings of fact 

underlying his resolution of the conflict in the equities, the 

[trial judge's] equitable distribution award will not be 

reversed on appeal." Smoot v. Smoot, 233 Va. 435, 443, 357 

S.E.2d 728, 732 (1987). On appeal, we construe the evidence in 

the light most favorable to the wife, the prevailing party 

below, granting to that evidence all reasonable inferences 

fairly deducible therefrom. See Donnell v. Donnell, 20 Va. App. 

37, 39, 455 S.E.2d 256, 257 (1995). 

 The commissioner found that the parties' "monetary 

contributions to the well-being of the family were nearly 

equal." The evidence, however, does not support that finding. 

 At the beginning of their twenty-six year marriage, the 

wife's salary was substantially equal to the husband's. In the 

early 1990's, however, that changed significantly. In 1998, the 

wife earned $26,500, the most she's earned in any year. The 

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evidence indicated that the husband, on the other hand, earned 

$262,100 in 1993, $217,700 in 1994, and $125,000 in 1995. 

 Although the wife paid half of the mortgage until 1989, 

after that time, the husband paid the entire amount of the 

mortgage. Moreover, the husband paid for all of the furniture 

and expensive items, such as window treatments, for each of 

their residences. The husband also paid for all of their 

child's clothes, the entire electric bill, and weekend meals in 

restaurants. The wife on the other hand, paid for the less 

expensive home decorations, contributed to the telephone and 

water bills, and, when their child was young, paid half the 

child care bill. 

 In finding that the monetary contributions of the parties 

were nearly equal, the commissioner focused on the perceived 

negative impact the husband's lifestyle had on the family's 

well-being. The commissioner found that the husband spent 

excessively on personal items such as clothes and expensive 

automobiles. He also found that, in spite of several years of 

earning significant income, the husband did nothing to secure 

the family's financial future. We have clearly held, however, 

that "at least until the parties contemplate divorce, each is 

free to spend marital funds." Booth v. Booth, 7 Va. App. 22, 

27, 371 S.E.2d 569, 572 (1988). 

 In recommending that the husband receive only fifteen 

percent of the marital assets, the trial judge focused primarily 

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on the husband's spendings during the marriage. It is not 

clear, however, "how the [trial judge or the commissioner] 

arrived at an award of fifteen percent." Artis v. Artis, 4 Va. 

App. 132, 137, 354 S.E.2d 812, 815 (1987). Nothing in the 

record explains why the trial judge thought it was necessary to 

make such a disproportionate division of the assets. The 

commissioner found that the wife contributed more in terms of 

non-monetary contributions to the well-being of the family. 

Regardless of this finding, however, the respective 

contributions of the parties do not justify a finding that the 

marital assets should be split eighty-five percent in favor of 

the wife and fifteen percent in favor of the husband. Although 

"[t]he Virginia General Assembly has not adopted a statutory 

presumption of equal distribution," Papuchis v. Papuchis, 2 Va. 

App. 130, 132, 341 S.E.2d 829, 830 (1986), the distribution must 

be based on a reasoned examination of the evidence. "[W]hen the 

[trial judge] fails to state any basis for reaching a given 

conclusion, the appellate court is hindered in its review." 

Artis, 4 Va. App. at 137, 354 S.E.2d at 815. 

 "Equitable distribution in Virginia, as codified in Code 

§ 20-107.3, 'is predicated on the philosophy that marriage 

represents an economic partnership requiring that upon 

dissolution each partner should receive a fair proportion of the 

property accumulated during marriage.'" Matthews v. Matthews, 

26 Va. App. 638, 648, 496 S.E.2d 126, 130 (1998) (quoting Roane 

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v. Roane, 12 Va. App. 989, 994, 407 S.E.2d 698, 701 (1991)). 

Our other cases and the record in this case do not indicate that 

the husband's spending during the marriage was so severe as to 

justify such a disproportionate distribution. See, e.g., L.C.S. 

v. S.A.S., 19 Va. App. 709, 720, 453 S.E.2d 580, 586 (1995) 

(where the husband's extraordinarily egregious criminal conduct 

did not result in awarding the wife a greater proportion of the 

marital assets). 

We will not simply assume, in every 

instance, that the trial court has followed 

this settled law in [ruling as to the 

property of the parties], particularly when 

it appears that one or more factors is 

difficult to reconcile with the award or the 

award is inexplicable based on the facts, 

when we are required to review on appeal an 

issue arising under [Code § 20-107.3]. We 

must be able to determine from the record 

that the trial court has given substantive 

consideration to the evidence as it relates 

to the provisions of this Code section. 

Trivett v. Trivett, 7 Va. App. 148, 153, 371 S.E.2d 560, 563 

(1988). We hold that the record fails to support this 

disproportionate award in favor of the wife. 

III. 

 The husband also contends that the trial judge erred in 

finding he owed the wife a child support arrearage. Although 

the husband did not preserve the objection for appeal, because 

the record contains no evidence that a child support order was 

ever entered in this case, the ends of justice require that we 

address the issue. See 5A:18. 

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 The following colloquy between the trial judge, the wife's 

counsel, and the husband's counsel indicates that there appeared 

to be a great deal of confusion concerning whether an arrearage 

existed and if so, whether it was for spousal or child support. 

[WIFE'S COUNSEL]: Very well, sir, I will. 

But I would ask the court, at the present 

time he's paying no child support. He's 

paying nothing. 

THE COURT: Yes, but he's ordered to pay his 

arrearage on the child support. 

[HUSBAND'S COUNSEL]: And we'll -- 

[WIFE'S COUNSEL]: But the arrearage of 

$23,000 that the court had previously 

ordered? 

[HUSBAND'S COUNSEL]: Yes. 

[WIFE'S COUNSEL]: I understand that. But 

at the present time, he's paying nothing. 

No child support for the child. He's in her 

primary physical custody. He's paying 

nothing. 

THE COURT: And I rule he doesn't have to 

pay the mortgage. 

[WIFE'S COUNSEL]: I understand that. 

[HUSBAND'S COUNSEL]: So he needs to start 

paying the child support right now. 

THE COURT: Yes. 

* * * * * * * 

[WIFE'S COUNSEL]: There is no order 

specifically for child support. 

THE COURT: Well, go back to what he was 

making to when he was having a salary, set 

the child support at that figure and enter 

an order. 

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Upon the wife's motion for pendente lite support, the trial 

judge ordered on February 6, 1997, that the husband continue to 

pay the monthly mortgage payments and pay the wife $300 a week 

as temporary spousal support. Although the commissioner did not 

recommend an award of child support, the trial judge granted the 

wife a "judgment against the [husband] in the amount of $23,900 

as a child support arrearage through February 19, 1999." The 

record does not indicate that the husband was in arrears on the 

mortgage payments. Indeed, the trial judge found "that [the 

husband] doesn't owe any arrearage in the mortgage." 

The trial judge offered no support for his finding that a 

child support arrearage exists. Indeed, the wife's counsel, 

when asking for child support on February 4, 1999, confirmed 

that "[t]here is no order specifically for child support." As 

we earlier stated, "when the [trial judge] fails to state any 

basis for reaching a given conclusion, the appellate court is 

hindered in its review. 'Aside from obvious defects which may 

be revealed when only the end product of deliberation is 

announced, the [trial judge] who fails to provide at least some 

of the steps in his thought process leaves himself open to the 

contention that he did not in fact consider the required 

factors.'" Artis, 4 Va. App. at 137, 354 S.E.2d at 815 

(citation omitted). 

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The husband does not dispute that on February 4, 1999, the 

trial judge ruled that he no longer had to pay the mortgage and 

on March 18, 1999, ordered that the husband begin paying child 

support. He argues, however, that because he complied with the 

pendente lite order concerning the mortgage, the trial judge's 

finding of an arrearage is erroneous. We agree that the record 

does not support the finding. 

IV. 

On cross-appeal, the wife contends that the trial judge 

erred in classifying the stipulated increase in value of CM&H 

Lumber Company, Inc., as the husband's separate property. The 

husband received his shares of stock in the company from his 

father by gift. Although the parties stipulated that the 

increase in the value of the property was $180,000, "[t]he 

increase in value of separate property during the marriage is 

separate property, unless marital property or the personal 

efforts of either party have contributed to such increases and 

then only to the extent of the increases in value attributable 

to such contributions." Code § 20-107.3(A)(1). To overcome the 

presumption that the company was the husband's separate 

property, the wife bore the burden of proving that "the personal 

efforts [of the husband] have contributed to such increases, 

. . . [and] any such personal efforts must be significant and 

result in substantial appreciation of the property." Code 

§ 20-107.3(E)(2). The wife's evidence did not prove that the 

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husband's efforts were significant or that they resulted in a 

substantial increase. 

Although the wife testified that the husband worked Monday 

through Friday from 5:30 a.m. to 7:30 p.m. and most of the day 

on Saturdays, she presented no other evidence concerning his 

efforts at the company. No evidence proved that the husband 

increased the company's customer base or expanded the business 

in any way. Moreover, the evidence concerning the value of the 

business proved that the increase in the value of the business 

from the date of the husband's acquisition to approximately six 

years later, on the date of the hearing, was $180,000. The 

commissioner found that the increase in the business averaged 

only five percent each year and did not find that to be a 

substantial increase. Thus, the trial judge's finding was not 

clearly erroneous or without evidence to support it. 

V. 

The wife also contends that the trial judge erred in not 

accepting the commissioner's recommendation that she be awarded 

$1,800 per month in spousal support. The decision to award 

spousal support includes the consideration of the marital 

property under the equitable distribution statute. Code 

§ 20-107.1(8) provides that "[i]f the court determines that an 

award should be made, it shall, in determining the amount, 

consider . . . the provisions made with regard to the marital 

property under § 20-107.3." Rowe v. Rowe, 24 Va. App. 123, 138, 

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480 S.E.2d 760, 767 (1997). Because we are remanding the 

equitable distribution award, the issue of spousal support must 

necessarily be remanded for reconsideration. 

VI. 

Finally, the wife contends that the trial judge erred in 

not accepting the recommendation of the commissioner that she be 

awarded $9,783.12 in attorney's fees and costs. "An award of 

attorney fees is a matter submitted to the trial [judge's] sound 

discretion 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 trial judge must consider "the 

circumstances of the parties," Barnes v. Barnes, 16 Va. App. 98, 

106, 428 S.E.2d 294, 300 (1993), and the "equities of the entire 

case." Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 

(1989). The record fails to establish that the trial judge 

abused his discretion in finding that the husband does not have 

the means to give "anything else at this time." 

For these reasons, the judgment is affirmed, in part, 

reversed, in part, and remanded. 

 Affirmed, in part,

reversed, in part, 

 and remanded.

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