COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges 

Argued at Alexandria, Virginia 

CYNTHIA MARGOUPIS 

 MEMORANDUM OPINION* BY 

v. Record No. 1168-98-4 JUDGE WILLIAM H. HODGES 

 FEBRUARY 23, 1999 

THOMAS MARGOUPIS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 Morgan Brooke-Devlin for appellant. 

 David E. Jones for appellee. 

 

In his response, husband raises two additional issues. Husband 

contends that the trial court erred (1) in granting a divorce on 

the ground of a one-year separation despite the fact that no 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 Cynthia Margoupis (wife) appeals the decision of the circuit 

court vacating its original decree of divorce and granting Thomas 

Margoupis (husband) a new trial based upon newly-discovered 

evidence. Wife raises the following issues on appeal:

(1) whether the trial court erred by vacating the first 

 final decree of divorce and granting husband a new 

 trial; 

(2) whether the trial court erred by granting husband's 

 motion for suspension of support pending appeal; 

(3) whether evidence supports the trial court's award of 

 equitable distribution, spousal support, and child 

 support; 

(4) whether the trial court abused its discretion in 

 awarding husband attorney's fees and denying her 

 attorney's fees when husband failed to sustain his 

 burden of proof at the retrial; and 

(5) whether wife should be awarded attorney's fees and 

 costs incurred in this appeal. 
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evidence supported wife's exceptions to the commissioner's 

finding that she deserted the marriage; and (2) by awarding wife 

spousal support. Husband also contends that wife's request for 

appellate attorney's fees is not justiciable. We find no error, 

and affirm the decision of the trial court. 

 Evidence on the grounds for divorce was heard by a 

commissioner in chancery. The trial court received the 

additional evidence ore tenus. On appeal, under familiar 

principles, 

 we view [the] evidence and all reasonable 

inferences in the light most favorable to the 

prevailing party below. Where, as here, the 

court hears the evidence ore tenus, its 

finding is entitled to great weight and will 

not be disturbed on appeal unless plainly 

wrong or without evidence to support it. 

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 

15, 20, 348 S.E.2d 13, 16 (1986). 

Vacation of Divorce Decree and Grant of New Trial

 The party seeking a new trial based upon a claim of 

newly-discovered evidence has the burden of establishing that the 

evidence 

 (1) appears to have been discovered 

subsequent to the trial; (2) could not have 

been secured for use at the trial in the 

exercise of reasonable diligence by the 

movant; (3) is not merely cumulative, 

corroborative or collateral; and (4) is 

material, and such as should produce opposite 

results on the merits at another trial. 

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 

(1983). See Carter v. Commonwealth, 10 Va. App. 507, 512-13, 393 
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S.E.2d 639, 642 (1990). The granting of such a motion is not 

favored, considered with special care and caution, and awarded 

with great reluctance. See Odum, 225 Va. at 130, 301 S.E.2d at 

149. Whether a new trial will be granted is a matter committed 

to the sound discretion of the trial court, and its decision will 

not be reversed except for an abuse of discretion. See Carter, 

10 Va. App. at 514, 393 S.E.2d at 642. 

 In a motion filed within twenty-one days of the entry of the 

final divorce decree, husband alleged that newly-discovered 

photographs demonstrated that wife misrepresented the nature of 

her relationship with Mountain Kim. Husband supported his motion 

with an affidavit. The trial court ruled that the allegations, 

if true, could have a bearing on the spousal support and 

equitable distribution trial, and vacated the final decree. We 

find no error in the trial court's action to preserve the matter 

for further consideration of husband's allegation. 

 We also find no merit in wife's contention that the trial 

court erred as a matter of law by failing to make the necessary 

findings prior to ordering a new trial. Both the transcript of 

the hearing on husband's motion and the court's order of January 

24, 1997, demonstrated that the trial court made sufficient 

findings. 

 Throughout the first proceeding, wife denied any financial 

or romantic relationship with Kim. She testified that she paid 

Kim rent, that she received no money from him, that they took two 

specific trips together, and that they were not romantically 
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involved. At the second trial, after the photographs were 

discovered but returned to wife in settlement of the criminal 

complaint she registered against Kim's son, wife asserted her 

Fifth Amendment rights in response to questions concerning her 

relationship with Kim and their travels. Evidence presented at 

the second trial demonstrated that payments to Kim's business 

were endorsed to wife, who then deposited the checks into her 

account. 

 Contrary to wife's contentions on appeal, the 

after-discovered evidence was relevant to the accuracy of wife's 

testimony at the first trial and to her claimed expenses. We 

find no error in the trial court's decision to grant husband's 

motion for a new trial. 

Suspension of Support

 Wife contends that the trial court erred when it suspended 

wife's spousal support while she appealed its order vacating the 

final decree. We disagree. "The orderly administration of 

justice demands that when an appellate court acquires 

jurisdiction over the parties involved in litigation and the 

subject matter of their controversy, the jurisdiction of the 

trial court from which the appeal was taken must cease." Greene 

v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982). After 

the appellate court acquires jurisdiction over a matter, 

modifications can be made only with leave of the appellate court. 

See id.
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 However, modification of an order is distinct from 

suspension of the order. Code § 8.01-676.1 provides that "[t]he 

court from which an appeal is sought may refuse to suspend the 

execution of decrees for support and custody, and may also refuse 

suspension when a judgment refuses, grants, modifies, or 

dissolves an injunction." The Supreme Court noted that 

 the General Assembly specifically has 

addressed the suspension of a support order 

pending appeal. Generally, a party appealing 

an ordinary judgment is entitled to have the 

execution of the judgment suspended pending 

an appeal upon the filing of a sufficient 

appeal bond or irrevocable letter of credit. 

Code § 8.01-676.1(C). In contrast, a party 

is not entitled as a matter of course to 

suspension of a judgment for spousal support 

pending appeal. Code § 8.01-676.1(D) 

authorizes a court to refuse to suspend such 

orders. 

Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993). 

Thus, a trial court may, but is not required to, refuse to 

suspend an award of spousal support pending appeal. This Court 

noted that Code § 8.01-676.1(D) empowers "the trial court in a 

civil proceeding . . . to suspend or refuse to suspend the 

execution of its judgment, decree or order during the pendency of 

an appeal." Decker v. Decker, 17 Va. App. 562, 564, 440 S.E.2d 

411, 412 (1994) (emphasis added). 

 The trial court's final decree was vacated by order entered 

January 24, 1997. The trial court lost jurisdiction to modify 

this order when wife's appeal was filed with this Court. 

However, the trial court retained authority to suspend its order 
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of spousal support during the pendency of the appeal. Code 

§ 8.01-676.1(D). 

Sufficient Evidence

 Wife contends that insufficient evidence supports the trial 

court's decision on equitable distribution, spousal support, and 

child support. We disagree. The trial court found that evidence 

presented by husband at trial was sufficient to demonstrate that 

wife failed to truthfully describe the nature of her relationship 

with Kim. The trial court specifically found that it did not 

believe wife's testimony concerning the payments she received 

from Kim: "As far as spous[al] support, I've reconsidered 

spous[al] support, enlightened by my findings of what your real 

expenses were as opposed to what you testified to, and I am 

setting spous[al] support at One Hundred Fifty Dollars per 

month." The trial court considered the evidence presented by 

husband concerning the financial benefits wife received from Kim 

and whether those benefits affected the amount of spousal support 

to which wife was entitled. See Collier v. Collier, 2 Va. App. 

125, 129, 341 S.E.2d 827, 829 (1986). Evidence in the record 

supports the trial court's decision to adjust the amount of 

spousal support previously ordered. We find no error. 

 Because the amount of child support was readjusted pursuant 

to the modified spousal support award, we also find no error in 

the child support award. 

 The trial court granted husband an additional five percent 

share of his 401(k) pension plan as reimbursement for earnings 
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lost due to a loan taken from the pension during the marriage. 

While on appeal wife objects to this ruling, she did not specify 

how it was erroneous. "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 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). Evidence supports the trial 

court's equitable distribution decision, as modified. 

 There was no error in the trial court's decision to limit 

the issues on retrial to those possibly tainted by wife's failure 

to testify accurately. While wife alleged that husband's income 

was underreported, she did not file a motion to bring that issue 

before the court and the trial court ruled that it would not 

consider that issue in the absence of any motion. The trial 

court considered the evidence before it. Therefore, the trial 

court's decision on equitable distribution, spousal support and 

child support will not be set aside. 

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 
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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). 

 Wife contends that the trial court erred by awarding husband 

attorney's fees incurred in the second trial while denying her 

additional fees. We disagree. Wife's misrepresentations on 

material and relevant facts warranted the new trial. Contrary to 

wife's assertion on appeal, the trial court found that husband's 

allegations were meritorious. We cannot say that the award was 

unreasonable or that the trial judge abused his discretion in 

making the award. 

Attorney's Fees on Appeal

 We find no merit in wife's appeal. Therefore, we decline 

her request for appellate attorney's fees. However, we reject 

husband's contention that wife raised a non-justiciable matter by 

seeking appellate attorney's fees. See O'Loughlin v. O'Loughlin, 

23 Va. App. 690, 479 S.E.2d 98 (1996). 

Grounds for Divorce

 The trial court granted the parties a divorce on the basis 

of a one-year separation. Husband contends that the trial court 

abused its discretion by rejecting the commissioner's finding 

that husband proved wife deserted the marriage because there was 

no factual basis for wife's exceptions to the commissioner's 

report. "It is well established that 'where dual or multiple 

grounds for divorce exist, the trial judge can use his sound 

discretion to select the grounds upon which he will grant the 
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divorce.'" Williams v. Williams, 14 Va. App. 217, 220, 415 

S.E.2d 252, 253 (1992) (citation omitted). Evidence supported 

the ground on which the trial court granted the divorce. We find 

no abuse of discretion in the trial court's decision not to award 

husband a divorce on the ground of desertion. 

Award of Spousal Support

 Husband also contends that the trial court erred by awarding 

wife any spousal support in light of the evidence that she 

deserted the marriage. Assuming without deciding that the 

evidence supported a finding of desertion by wife, her fault 

would not necessarily bar spousal support. See Code § 20-107.1. 

Wife testified she was working three jobs. The trial court 

reduced the amount of spousal support wife received after 

determining she failed to accurately disclose her income and 

expenses. Based upon the evidence, the trial court found that 

wife was entitled to $150 in monthly spousal support. Husband 

has failed to demonstrate that the trial court erred in making 

that award. 

 In conclusion, we affirm the decision of the trial court 

granting husband a new trial, suspending spousal support pending 

wife's first appeal and retrial, modifying spousal support and 

child support, modifying the equitable distribution award, and 

awarding husband attorney's fees incurred in the second trial. 

We find no error in the trial court's decision to award the 
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parties a divorce on the ground of a one-year separation or to 

award reduced spousal support to wife. 

 Affirmed.