COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Mc Clanahan and Senior Judge Coleman

FRANK H. GILLILAND MEMORANDUM OPINION * v. Record No. 1272-04-1 PER CURIAM NOVEMBER 16, 2004 SHERRY L. GILLILAND

FROM THE CIRCUIT COUR T OF SOUTHAMPTON COUNTY Westbrook J. Parker, Judge (Romy L. Radin; Radin & Radin, P.C., on brief), for appellant. (James E. Rainey; Moyler, Rain ey & Cobb, P.L.C. , on brief), for appellee.
Frank H. Gilliland, husband, appeals a decision of the trial court concerning its equitable distribution award. Husband argue s the trial court abused its discretion by: (1) failing to consider the factors of Code § 20-107.3 and ordering him to satisfy a cash obligation to Sherry L. Gilliland (wife) as part of the equitable dist ribution award; (2) accepting wife’s valuation of personal property and its apportionment of the prope rty between the parties; (3) requiring him to purchase wife’s equity in the marital assets in his possession according to wife’s evidence of the value of that property; and (4) awarding wife attorney’s fees related to his motion for reconsideration. Upon reviewing the record and the briefs of the pa rties, we conclude that this appeal is without merit. Accord ingly, we summarily affirm the d ecision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Background “‘Under familiar principles we view the ev idence and all reasonable inferences in the light most favorable to the preva iling party below.’” Alphin v. Alphin , 15 Va. App. 395, 399, 424 S.E .2d 572, 574 (1992) (citation omitted). “Where, as here, the court hears the evidence ore

tenus , its findings are entitled to great weight a nd will not be disturbed on appeal unless plainly wrong or without eviden ce to support it.” Id. The parties were married in 1985. In 2002, wi fe filed a bill of complaint for divorce. Wife moved out of the marital residence. The pa rties agreed to have a settlement conference on January 20, 2004 regarding the equita ble distribution of the marita l property. At the hearing, both parties presented written proffers concerni ng the value of the marital property. Wife presented the following evidence of how she obtained values for the property: Marital residence County’s assessed value Husband’s truck Value give n by husband in discovery response Wife’s “wrecked” vehicle Amount paid to her for the vehicle Tractor Value given by husband in discovery response Household goods Wife’s estimated value Husband’s Retirement Value given by husband in discovery response Wife also presented a 2002 county tax bill as evidence of the value of husband’s truck. Husband argued that wife abandoned him and that, when she left the marital home, she left personal property that she di d not want. He also argued that wife’s valuations of the personal property were arbitrary. Husband further contended wife’s estimati ons of value as to property in his possession were “too high” and were based on values at the time of separation not at the time of the evidentiary hearing. Speci fically, husband argued that wife’s assessment of the values of- 3 - the truck and tractor did not take into consider ation the current condition of the items. Husband asserted the truck had been damaged and the tr actor was in poor condition. Husband also presented evidence that he had worked dur ing the marriage until December 1999, when he became ill. At the time of the hearing, husband’ s only source of income was social security disability. In its opinion letter date d March 16, 2004, the trial court ruled that the parties had contributed equally to the marriage and to the acquisition and maintenan ce of the property. Therefore, the court divided the marital property equally. The trial court also stated that it “carefully reviewed the evidence submitted” and found that wife’s assessment of the value of the property was supported by the documentation she provi ded. Therefore, the court accepted wife’s evidence of the value of the items of personal property. The court awarded husband the pick-up truck, the tractor, and the household goods in hi s possession. It awarded wife the value of the wrecked car and the household goods in her posse ssion. The court ordered husband to pay wife $11,922.50 for her share of the marital assets in husband’s possession. Husband filed a motion to reconsider and, at the hearing on the motion, husband requested that the court enter an order transferring personal property to wife and awarding husband a lump sum payment pursuant to Code § 20-107.3(D). Husband also requested that the court consider additional evidence concerning the value of the pers onal property or order that the property be sold and the parties divide the proceeds. Husband ag ain argued that wife’s property valuations were arbitrary. The trial court ruled that husband’s “argumen t should have been made to the Court of Appeals.” The court awarded wife $300 in attorn ey’s fees for the costs of defending the motion to reconsider.- 4 - Analysis “In reviewing an equitable distribution aw ard on appeal, we recognize that the trial court’s job is a difficult one.” Shackelford v. Shackelford , 39 Va. App. 201, 210, 571 S.E.2d 917, 921 (2002). “The function of the [trial court] is to arrive at a fair and equitable monetary award based upon the equities and the rights and in terests of each party in the marital property.” Mitchell v. Mitchell , 4 Va. App. 113, 118, 355 S.E.2d 18, 21 ( 1987). Accordingly, we rely on the sound discretion of the trial court in determ ining the appropriate division or transfer of marital property and the amount of a ny monetary award. Gottlieb v. Gottlieb , 19 Va. App. 77, 93-94, 448 S.E.2d 666, 676 (1994) (citation omitted). Husband contends the trial court abused its discretion and “ignored” Code § 20-107.3 when making the equitable distribution award. Ho wever, in the final divorce decree, the trial court stated that it considered Code § 20-107.3 in rendering its de cision, including Code § 20-107.3(A) through (E). Specifically, the court stat ed that it gave “full consideration [to] each and every factor set fort h in [Code] § 20-107.3(E).” The trial court must consider all of the fact ors set forth in Code § 20-107.3(E). However, the trial court “need not quantify or elaborate exactly what weight was given to each of the factors.” Taylor v. Taylor , 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). Accordingly, husband’s argument is without merit. Husband argues the trial court abused its discretion by accepting wife’s “excessive” valuation of personal property, which he assert s was based on the value of the property at the time of separation. Virginia’s [equitable distribution] statute “mandates” that trial courts determine the ownership a nd value of all r eal and personal property of the parties. But, cons istent with established Virginia jurisprudence, the litigants have the burden to present evidence sufficient for the court to discharg e its duty. When the party with- 5 - the burden of proof on an issue fail s for lack of proof, he [cannot] prevail on that question. Bowers v. Bowers , 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987). The record does not support husband’s argum ent that wife’s valuation of all of the personal property was based on values at the time of separation. Wife’s document entitled “Real and Personal Property,” listing her estimated value of the marital property, is dated January 20, 2004, the date of the evidentiary hearing. In ad dition, his particular claim that her evidence regarding the value of the tractor or truck wa s out-of-date and excessi ve and constituted an improper basis for the court’s decision is wit hout merit. To be sure, wife produced a 2002 county tax assessment document which showed the value of husband’s truck was $16,625. However, the record on appeal contains no eviden ce of husband’s asserted alternate value of the truck. Husband did not mention th e truck in his written proffer, and the written statement of facts only states generally that husband argued the truck had been damaged, but it does not state the amount of damage or a value for the truck th at husband contends is appropriate. Moreover, the written statement of facts i ndicates that wife also obtained the value for both the truck and the tractor from husband’s response to her discovery requests. Our review of an appeal is restricted to the record. Turner v. Commonwealth , 2 Va. App. 96, 99, 341 S.E.2d 400, 401 (1986). “An appellate c ourt must dispose of the case upon the record and cannot base its decision upon appellant’s petition or brief, or statements of counsel in open court. We may act only upon facts contai ned in the record.” Smith v. Commonwealth , 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). Furthermore, we do not presume on appeal that the trial court has erred. Indeed, “[w]e have many times pointed out that on appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a suffi cient record from which we can determine whether the lower court has erred in the respect- 6 - complained of. If the appellant fails to do this, the judgment will be affirmed.” Id. (quoting Justis v. Young , 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1991)). Here, upon review of the record, we conclude that husband has failed to provide us with an adequate record to enable us to determine whether the trial court erred by accepting wife’s va luation of the truck. Because the record contains no evidence of husband’ s estimated value of the truck, we affirm the trial court’s acceptance of wife’s valuation evidence. Furthermore, “[i]t is well established that the trier of fact ascertains [witnesses’] credibility, determines the weight to be given their testimony, a nd has the discretion to accept or reject any of the [witnesses’] testimony [, whet her in whole or in part].” Street v. Street , 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) ( en banc ). The trial court accepted wife’s evidence concerning the value of all the pers onal property, stating in its opi nion letter that her proffer was supported by documentary evidence. We find no abuse of discretion in its decision concerning the valuation of all of the property. Husband argues the trial court abused its di scretion in its apportionment of the marital property. “[A] trial court consid ers the factors in Code § 20-107.3, to make a decision regarding division of marital property.” Shackleford , 39 Va. App. at 211, 571 S.E.2d at 922. In its opinion letter, the trial court found that “both parties contributed equally to the marriage and to the acquisition and maintenance of the property; accordingly, it shall be divided equally.” The factual predicates for the trial court’s decision are valid, and its exerci se of discretion sound. Therefore, we find no error in this asp ect of the equitable distribution award. Husband also contends the trial court abus ed its discretion by requiring him to purchase wife’s equity in the marital property in his possession, citing C ode § 20-107.3(D). Code § 20-107.3(D) provides in part:- 7 - [B]ased upon (i) the equities and th e rights and interests of each party in the marital property, a nd (ii) the factors listed in subsection E, the court has the pow er to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. Thus, Code § 20-107.3(D) requires the trial court’s approval of husband’s proposal to convey property to wife instead of issuing a mone tary award. However, the trial court did not approve such a payment and there is no showing of an abuse of discretion in its decision. When the trial court orders a monetary award, it must be based on all of the factors enumerated in Code § 20-107.3(E). Robinette v. Robinette , 4 Va. App. 123, 130, 354 S.E.2d 808, 811 (1987). There is adequate evidence in the record to establish the trial court took these factors into consideration. “Unless it appears from the reco rd 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). Husband argues the trial court abused its di scretion by awarding wife attorney’s fees for the costs of defending husband’s motion for reconsid eration of the equitabl e distribution award. “An award of attorney’s fees is a matter submitte d to the trial court’s sound discretion and is reviewable on appeal only for an abuse of discretion.” Richardson v. Richardson , 30 Va. App. 341, 351, 516 S.E.2d 726, 731 (1999). The written st atement of facts i ndicates that the arguments husband made at the motion for reconsid eration were either previously made at the January 20, 2004 hearing or could have been presen ted at that hearing. Accordingly, we cannot say the trial court abused its discretion by awarding wife $300 in attorney’s fees. Wife requests an award of attorney’s fees and cost s expended on appeal. See O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon a review of the record,- 8 - we find the litigation addressed appropriate is sues and husband did not generate unnecessary delay or expense in pursuit of his interest s. Therefore, the request is denied. For these reasons, the decision of the trial court is affirmed. Affirmed.