COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

CHANDRU M. BAXANI 

 MEMORANDUM OPINION* 

v. Record No. 2945-02-2 PER CURIAM 

 JULY 1, 2003 

CHUI YING C. BAXANI 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Thomas T. Hassell, Jr., for appellant. 

 Andrea C. Long (Boone, Beale, Cosby & Long, 

on brief), for appellee. 

 Chandru M. Baxani, husband, appeals the final divorce decree 

of the trial court concerning the equitable distribution award 

and the spousal support award to Chui Ying C. Baxani, wife. On 

appeal, husband contends the trial court erred by: (1) awarding 

attorney's fees to wife; (2) failing to credit him for 

post-separation mortgage payments; (3) awarding spousal support to 

wife; and (4) failing to make written findings identifying the 

factors that sustain its spousal support award. Wife also 

requests an award of attorney's fees she has incurred in defense 

of this appeal. Upon review of the briefs and the record, we 

conclude that husband's appeal is without merit. Accordingly, we 

summarily affirm the decision of the trial court. See Rule 5A:27. 

 

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

designated for publication.
BACKGROUND

 The parties married in 1971 and had three children together, 

one of whom was under the age of eighteen at the time of the 

divorce. Wife moved out of the marital residence in July 1998, 

and husband asserts that she deserted the marriage. However, wife 

contends the parties discussed ending the marriage, separating, 

and selling the marital residence prior to her move. 

 Wife filed a bill of complaint seeking a divorce on the 

ground of living separate and apart continuously for a period 

exceeding one year. She also sought spousal support and the 

equitable distribution of the parties' property. 

 The trial court granted the parties a divorce on the ground 

of having lived separate and apart for a period in excess of one 

year. In its July 2, 2002 letter opinion, the trial court awarded 

wife spousal support in the amount of $450 per month. It also 

ordered that the parties sell the marital residence and divide the 

net proceeds equally. Husband was to receive a monetary credit 

for the costs of several repairs he had made to the house after 

the parties separated. The trial court also ordered that husband 

was responsible for any necessary repairs to the house as 

suggested by a real estate agent and that he would be reimbursed 

for these repairs from the proceeds of the sale. The trial court 

denied husband's request for credit for post-separation mortgage 

payments he made. In addition, the court awarded wife $5,000 in 

attorney's fees. 

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 Husband raised objections to the trial court's decision and 

he requested that the court reconsider its rulings concerning the 

awards for attorney's fees and spousal support and the failure to 

credit husband for the post-separation mortgage payments. The 

trial court declined to reconsider its decision. 

ATTORNEY'S FEES

 "An award of attorney's fees is a matter submitted to the 

trial court'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) (citation omitted). "The key to a 

proper award of counsel fees is reasonableness under all the 

circumstances." Lightburn v. Lightburn, 22 Va. App. 612, 621, 472 

S.E.2d 281, 285 (1996). 

 Husband argues that the award of attorney's fees was an abuse 

of discretion because wife deserted the marriage and because the 

income of the parties is substantially identical. Although 

husband asserted that wife deserted the marriage, wife contended 

that the parties discussed getting a divorce and selling the 

marital home prior to her moving from the marital home. She also 

indicated that she moved from the martial residence only after 

husband failed to take steps to sell the house. Furthermore, the 

trial court granted the divorce on the ground that the parties had 

lived separate and apart in excess of one year, not on the ground 

of desertion. Moreover, as husband admits, even after taking into 

account husband's monthly spousal support payment to wife, his 

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income remains $1,200 per year greater than wife's income. 

Accordingly, the trial court did not abuse its discretion in 

awarding wife $5,000 in attorney's fees. 

POST-SEPARATION MORTGAGE PAYMENTS

 The record established that husband retained exclusive use of 

the marital residence after the parties separated. He also made 

all of the post-separation monthly mortgage payments. "Although 

the separate contribution of one party to the acquisition, care, 

and maintenance of marital property is a factor that the trial 

court must consider when making its award of equitable 

distribution, Code § 20-107.3 does not mandate that the trial 

court award a corresponding dollar-for-dollar credit for such 

contributions." Von Raab v. Von Raab, 26 Va. App. 239, 249-50, 

494 S.E.2d 156, 161 (1997). In addition, since the parties 

separated, husband received the tax benefits associated with 

paying the mortgage interest and the real estate property taxes 

for the house, while wife paid rent for an apartment where she and 

several of the parties' children lived. Therefore, we cannot say 

that the trial court abused its discretion by refusing to award 

husband a credit for his post-separation mortgage payments on the 

marital residence property. 

SPOUSAL SUPPORT

 "In awarding spousal support, the [trial court] must consider 

the relative needs and abilities of the parties. [The court] is 

guided by the . . . factors that are set forth in Code § 20-107.1. 

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When the [trial court] has given due consideration to these 

factors, [its] determination will not be disturbed on appeal 

except for clear abuse of discretion." Collier v. Collier, 2 

Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). "'In fixing the 

amount of the spousal support award, . . . the court's ruling will 

not be disturbed on appeal unless there has been a clear abuse of 

discretion. We will reverse the trial court only when its 

decision is plainly wrong or without evidence to support it.'" 

Moreno v. Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794 

(1997) (citation omitted). 

 In its letter opinion, the trial court specifically stated 

that it considered the statutory factors for making a spousal 

support award, including the length of the marriage and the 

earning capacities of the parties. Indeed, the evidence showed 

that husband and wife were married for over thirty years. Husband 

earns $36,000 per year and wife earns $24,000 per year. Wife is 

in poor physical condition, has undergone several recent surgical 

operations, and faces more medical treatments. The evidence also 

showed that, during the marriage, wife made numerous monetary and 

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

their home. She also worked for husband's clothing businesses 

from about 1977 to 1981. 

 In addition, as stated above, the trial court did not find 

that wife deserted the marriage. Moreover, wife testified that 

she suffered both verbal and emotional abuse from husband during 

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the marriage. Based on this evidence, we cannot say that the 

trial court abused its discretion in awarding wife spousal 

support. 

CODE § 20-107.1 FACTORS

 Husband asserts that the trial court erred in failing to make 

written findings and conclusions pursuant to Code § 20-107.1, 

identifying the factors that support the spousal support award. 

However, husband failed to make this argument to the trial court. 

"The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court." Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). 

See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration 

of this question on appeal. Moreover, the record does not 

reflect any reason to invoke the good cause or ends of justice 

exceptions to Rule 5A:18. 

ATTORNEY'S FEES ON APPEAL

 Wife has requested attorney's fees for matters relating to 

this appeal. Upon consideration of the entire record in this 

case, we hold that wife is entitled to a reasonable amount of 

attorney's fees incurred in this appeal and we remand this matter 

to the trial court for it to determine the proper amount of the 

award. 

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 Accordingly, we summarily affirm this appeal and remand the 

matter to the trial court for the determination of wife's 

attorney's fees incurred on appeal. 

 Affirmed and remanded.

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