COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Agee 

Argued at Alexandria, Virginia 

JOHN HANYOK 

 MEMORANDUM OPINION* BY 

v. Record No. 1754-01-4 JUDGE JAMES W. BENTON, JR. 

 AUGUST 13, 2002 

KATHLEEN HANYOK 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Robert S. Ganey (Hanover Law Office, on 

briefs), for appellant. 

 Paul F. Nichols (Cassandra M. Chin; Nichols, 

Bergere, Zauzig & Sandler, P.C., on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 John Hanyok appeals from a final decree of divorce and raises 

thirty issues challenging child custody, visitation, equitable 

distribution, child support, spousal support, and attorney fees. 

We affirm the decree, and we grant the wife's request for 

attorney's fees related to this appeal. 

 I. 

 Kathleen and John Hanyok married in 1975. The husband filed 

a bill of complaint for divorce in 1998, and the wife filed a 

cross-bill of complaint. The parties have three children: a 
daughter, who is over the age of majority, and two sons, who were 

minors at the time of the final decree. 

 In a pendente lite consent order, the parties agreed that the 

wife would have exclusive use of the marital residence, that they 

would have joint legal custody of their sons, that the sons' 

primary residence would be with the wife, that the husband would 

have visitation every other weekend and one day a week, that both 

parties would consult a mental health expert for purposes of 

determining a visitation schedule, and that the husband would 

refrain from contacting the wife. Various other consent orders 

were entered resolving disputes between the parties. A second 

pendente lite order required the husband to pay child support and 

spousal support, and it granted other relief. 

 After a hearing, the commissioner in chancery recommended a 

divorce on the ground the parties had lived "separate and apart 

. . . in excess of one year." The husband filed a motion to 

review, modify, and vacate provisions of the pendente lite orders 

requesting the judge to order psychological and physical 

examination for the wife, to hold the wife in contempt for 

"intentional[ly] withholding visitation," and for other relief. 

The trial judge held an evidentiary hearing and issued a letter 

opinion. Following various motions and hearings, the judge 

entered a final decree of divorce. 

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II. Child Custody and Visitation 

 The husband contends the trial judge erred in failing to 

award him primary care of his children and in failing to respond 

to his various concerns about visitation. He also contends the 

judge's order violates his constitutional rights to parent his 

children. 

 When the United States Supreme Court has reviewed 

constitutional challenges to family matters, "the Court has 

emphasized [that] the paramount interest [is] in the welfare of 

children." Lehr v. Robertson, 463 U.S. 248, 257 (1983). 

Likewise, the "established . . . rule in Virginia [is] that in 

custody . . . cases the welfare of the child is of paramount 

concern and takes precedence over the rights of parents." 

Malpass v. Morgan, 213 Va. 393, 399-400, 192 S.E.2d 794, 799 

(1972). Consistent with these rules, our statutes contain 

factors for determining a child's best interest in custody and 

visitation cases. See Code §§ 20-124.2 and 20-124.3. In 

applying those statutes, we have held as follows: 

Although the trial court must examine all 

factors set out in Code § 20-124.3, "it is 

not 'required to quantify or elaborate 

exactly what weight or consideration it has 

given to each of the statutory factors.'" 

As long as evidence in the record supports 

the trial [judge's] ruling and the trial 

[judge] has not abused [his] discretion, 

[his] ruling must be affirmed on appeal. 

Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999) 

(citations omitted). 

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 The evidence indicates that a pendente lite order gave the 

husband visitation every other weekend and one day a week. The 

husband testified that those arrangements did not work out 

because the wife was interfering in his efforts to see his sons. 

He testified that after the arbitrator's report specified 

visitations, he attempted to see his sons, but they would not go 

with him. He also testified that the wife misled the sons to 

believe that he had stolen their money and made other 

allegations. 

 Although the husband testified the wife was interfering 

with his efforts to visit the sons, the wife disputed those 

claims and testified she encouraged the teenage sons to see 

their father and "wanted them to continue having a relationship 

with their father and his family." She testified that after 

doing so she later "backed out because it really seemed to be 

between [the husband] and the boys." To facilitate the 

meetings, she would leave when it was time for the scheduled 

visitation. She testified, however, that the sons were angry 

with their father because he sometimes failed to appear for 

visitations and was tardy. 

 The trial judge met with the teenage sons in his chambers 

to hear their concerns. Explaining his impression of the 

meeting, the judge found that "it's just an extremely difficult 

situation. They are estranged from their father. And I don't 

think the court ordering practically adults into a visitation 

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schedule is going to help the situation at all." The judge also 

found that the boys "wouldn't even agree to have dinner every 

two weeks" and that "they say that they don't want anything to 

do with their father." 

 "When the court hears the evidence ore tenus, its findings 

are entitled to the weight accorded a jury verdict, and they 

will not be disturbed on appeal unless they are plainly wrong or 

without evidence to support them." Bailes v. Sours, 231 Va. 96, 

100, 340 S.E.2d 824, 827 (1986). Upon considering testimony of 

the mother, the father, and the teenage sons, the judge ruled 

that the continued relationship between the husband and the sons 

"[was] going to be up to the father and the boys. And I can at 

least take a stab at it by ordering a dinner every two weeks." 

In view of the evidence in the record, we cannot say the judge 

erred when he ordered a visitation schedule, which requires the 

sons to attend "a dinner every two weeks with review of the 

visitation in six months." In addition, upon considering the 

wife's testimony and the findings made by the trial judge 

following his interview and consideration of the evidence, we 

hold that the trial judge did not err in refusing to order the 

wife to undergo an evaluation or to order counseling or a 

monitor. Moreover, no evidence supports a claim that the 

husband's constitutional rights were violated. Credible 

evidence in the record supports the trial judge's custody order 

and visitation schedule. 

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III. Equitable Distribution 

In reviewing the husband's challenges to the trial judge's 

findings of fact, we are governed by the following standards: 

 On appeal, the trial [judge's] findings 

must be accorded great deference. "In 

determining whether credible evidence 

exists, the appellate court does not retry 

the facts, reweigh the preponderance of the 

evidence, or make its own determination of 

the credibility of witnesses." "We will not 

disturb the trial [judge's] decision . . . 

unless it is 'plainly wrong or without 

evidence in the record to support it.'" 

Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 

(1997) (citations omitted). The record contains credible 

evidence supporting each of the trial judge's findings. 

1. Valuation Date 

 The husband contends the trial judge used an improper date 

to value the property. He argues the trial judge erred by not 

accepting as an alternative valuation date the date the wife 

moved out of their bedroom. 

 In pertinent part, Code § 20-107.3(A) provides as follows: 

The court shall determine the value of any 

such property as of the date of the 

evidentiary hearing on the evaluation issue. 

Upon motion of either party made no less 

than twenty-one days before the evidentiary 

hearing the court may, for good cause shown, 

in order to attain the ends of justice, 

order that a different valuation date be 

used. 

The husband makes the bare assertion that the wife ceased to 

contribute to the marriage when she moved from the bedroom and 

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that this was the proper date to valuate the property. We hold 

the judge did not err in refusing to value the parties' property 

as of the date on which the husband alleged the wife moved from 

the bedroom. 

2. Classification of Property 

Asserting that "[p]roperty inherited during marriage must 

be maintained as separate property in order to retain its 

character as separate property," the husband argues that any 

inheritance funds the wife used to improve the marital home were 

transmuted into marital property. 

Code § 20-107.3(A)(3)(d) provides, in pertinent part as 

follows: 

 When marital property and separate 

property are commingled by contributing one 

category of property to another, resulting 

in the loss of identity of the contributed 

property, the classification of the 

contributed property shall be transmuted to 

the category of property receiving the 

contribution. However, to the extent the 

contributed property is retraceable by a 

preponderance of the evidence and was not a 

gift, such contributed property shall retain 

its original classification. 

 The husband's witness testified he had reviewed various 

bank statements and "was not able to trace each of the separate 

deposits into [the wife's] account." His testimony, however, 

was not dispositive because the wife testified that these funds 

were used toward the home. Assessing the evidence, the judge 

found that the wife adequately traced her separate contribution 

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to the home. We will not reweigh the evidence on appeal. The 

wife's testimony was credible and supports the judge's finding. 

 The husband challenges the judge's calculation of the 

wife's separate contribution and marital contribution. The 

wife's testimony and exhibit plainly supported the judge's 

findings. In view of the conflicting testimony, we cannot say 

the judge erred when he accepted the wife's evidence and ruled 

that the marital share of the property at Cabells Mill Drive was 

$122,334, as opposed to $126,632 as the husband contends. The 

trial judge found that the value of the property less costs of 

sale and less a $83,000 lien amounted to $214,620. Of that 

value, the judge found that the wife adequately traced $37,511 

of separate contribution to the house and that the marital 

contribution was $50,437. The judge therefore adjusted the 

wife's separate equity at 43% and the marital equity at 57%. 

See Moran v. Moran, 29 Va. App. 408, 414, 512 S.E.2d 834, 836-37 

(1999) (holding property was properly classified as marital and 

separate property). Code § 20-107.3(A)(1) provides, in 

pertinent part, that "[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." See

also Smoot v. Smoot, 233 Va. 435, 439, 357 S.E.2d 728, 730 

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(1987). Applying these principles, we hold that the judge did 

not err in his calculations. 

The trial judge also did not err in valuing the personal 

property. The trial judge valued the household goods in the 

husband's possession at $5,128 and those in the wife's 

possession at $6,821. An appraiser who testified on the 

husband's behalf assessed the values, and the wife testified 

about the value of certain goods each party had. The trial 

judge resolved the conflicts and was not required to accept in 

total either party's evidence. Hence no error appears from the 

record. 

The judge also did not err in determining the value of the 

Neon automobile. The wife's evidence indicated the value of the 

vehicle was $1,500. The trial judge did not err in accepting 

that valuation as credible. 

The record does not indicate the trial judge erred 

concerning the rental property. Although the husband contends 

the trial judge erred by not crediting rental payments made by 

him per court order, this argument was not preserved in the 

court below. 

 The evidence also supports the trial judge's finding 

concerning the Prudential and GPM life insurance policies. An 

exhibit in the record lists the value of those policies as 

$6,300. Moreover, when the wife's attorney asked the husband 

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whether the cash value of those policies was $6,300, the husband 

replied, "I believe so." 

3. Division of Marital Property 

The husband contends the trial judge improperly awarded the 

wife 50% of the marital property, erred by not selling all of 

the marital property, and erred by awarding the wife the primary 

residence. The husband testified that his monetary contribution 

was in excess of $1,062,000 during the marriage, while the 

wife's was approximately $177,000. He contends, therefore, that 

he should have been awarded a larger portion of the marital 

property. The husband also expressed his desire that the wife 

have the Dale City residence which is closer to her work and 

offered to pay off the $7,000 mortgage on that property. He 

wanted to reside in the marital home to parent his sons. 

In addition to the wife's testimony, a witness who had been 

a neighbor of the parties for over fifteen years, testified 

about the wife's involvement in the lives and activities of the 

children. She testified that the wife was "the predominant 

person in the home" and that the wife "was always at the school 

functions, the graduations from the kids, the choral 

presentations, the plays, and that kind of thing." In contrast, 

she testified that "[i]t was very rare that [the husband] was 

able to make those events." 

Upon considering the factors in Code § 20-107.3(E), the 

trial judge determined that the marital property should be 

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equally divided. The judge specifically noted the twenty-five 

year duration of the marriage and the monetary and nonmonetary 

contributions of the parties. The record supports the trial 

judge's findings. 

 We have held that we will not reverse an equitable 

distribution award on appeal "unless it appears from the record 

that the chancellor has abused his discretion, that he has not 

considered or misapplied one of the statutory mandates, or that 

the evidence fails to support the findings of fact underlying 

his resolution of the conflict of equities." Hart v. Hart, 27 

Va. App. 46, 53, 497 S.E.2d 496, 499 (1998). The husband points 

to no factor that the trial judge failed to consider. Moreover, 

the record indicates no error. Hence, we hold that the judge 

did not err in dividing the marital property equally and 

permitting the wife, who had physical custody of the children, 

to remain in the primary residence. 

IV. Child Support 

Although the husband estimated his income in 2001 would be 

$97,000, the evidence proved his income was $105,490 in 1998, 

$110,966 in 1999, and $132,566 in 2000. He testified that his 

salary is $77,000, that he also receives commission depending on 

his performance, and that he possibly could earn $110,000 in 

2001. The evidence did not show the husband had changed careers 

or employers. We hold that the trial judge did not err when he 

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determined the husband's income was $107,983 by averaging the 

husband's salary in 1998 and 1999. 

The husband also contends the judge erred by failing to 

impute income to the wife in calculating child support. Code 

§ 20-108.2 provides that "[t]here shall be a rebuttable 

presumption . . . that the amount of the award which would 

result from the application of the guidelines . . . is the 

correct amount of child support to be awarded." A party may 

rebut this presumption by showing that income should be imputed 

to a party "who is voluntarily unemployed or voluntarily 

under-employed." Code § 20-108.1. 

The record contains no evidence that income should be 

imputed to the wife. Although the husband attempted to testify 

as to job opportunities available in the wife's field, the judge 

excluded the evidence because the husband did not qualify as an 

expert. The judge also determined that the husband's testimony 

concerning postings on the Internet of job opportunities was 

inadmissible hearsay. 

No evidence proved the wife had been offered a higher 

paying position or that it would be more economical for her to 

obtain a different position. The wife testified that although 

she worked a full time schedule, she could only bill a portion 

of the hours she actually worked. She testified that she 

"definitely put[s] in a 40-hour week, but . . . can only bill 

for those hours that I' m providing direct intervention." The 

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trial judge accepted her testimony as credible and found that it 

would be improper to impute income. The record supports the 

findings. 

V. Spousal Support 

 A trial judge must consider the factors in Code § 20-107.1 

in fashioning an award of spousal support. "Where the [judge] 

has given due consideration to each of these factors, as shown 

by the evidence, his determination as to spousal support will 

not be disturbed." Thomasson v. Thomasson, 225 Va. 394, 398, 

302 S.E.2d 63, 66 (1983). "Whether and how much spousal support 

will be awarded is a matter of discretion for the trial court." 

Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 

(1998). 

 Although the husband contends the trial judge erred in 

awarding the wife $1,200 per month spousal support, the record 

contains sufficient evidence concerning the relevant factors to 

support the award. In particular, evidence was presented 

concerning the parties' needs and standard of living. Based on 

the evidence in the record, the judge did not err in awarding 

spousal support. 

 The husband additionally contends the judge should have 

imputed income to the wife in determining spousal support. 

Although it is true that "[t]he party seeking spousal support 

must earn as much as he or she reasonably can to reduce the 

amount of the support needed," Konefal v. Konefal, 18 Va. App. 

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612, 614, 446 S.E.2d 153, 154 (1994) (citation omitted), as we 

held in the prior section, the husband presented no evidence 

that the wife was foregoing more gainful employment. 

Accordingly, the record supports the judge's award. 

VI. Attorney's Fees 

 "The amount of counsel fees . . . [is] a matter for the 

exercise of the sound discretion of the trial court. In the 

absence of an abuse of this discretion, such an award will not 

be disturbed." Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 

362, 364 (1976). The judge's award to the wife of $5,000 in 

attorney's fees was not unfair in light of the equities of the 

parties as determined by the judge. We hold therefore that the 

trial judge did not abuse his discretion. 

 Furthermore, we agree that an award of attorney's fees, as 

requested by the wife, is warranted for this appeal. We 

therefore remand to the trial judge for determination of 

reasonable attorney's fees in connection with this appeal to be 

awarded to the wife. 

VII. 

 Upon our review of each of the thirty issues raised by the 

husband, we conclude that the trial judge did not err. 

Accordingly, we affirm the judgment and remand for determination 

of attorney's fees to the wife. 

 Affirmed and remanded. 

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