COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Fr ank and Clements

CHANDRU M. BAXANI MEMORANDUM OPINION * v. Record No. 29 45-02-2 PER CURIAM JULY 1, 2003 CHUI YING C. BAXANI

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Ti dey, Judge Thomas T. Hassell, Jr., for appellant. Andrea C. Long (Boo ne, Beale, Cosby & Long, on brief), for appellee.

Chandru M. Baxani, husband, appeals the final divorc e decree of the trial court conc erning the equitable distribution award and the spousal su pport award to Ch ui Ying C. Baxa ni, wife. On appeal, husband co ntends the trial court er red by: (1) awarding attorney's fees to wife ; (2) failing to credit him for post-separatio n mortgage payments; (3) aw arding spousal support to wife; and (4) fail ing to make written fi ndings identifying the factors that sustain its spousal su pport award. Wife also requests an awar d of attorney's fees she has incurred in defense of this appeal. Upon review of th e briefs and th e record, we conclude that husband's appeal is without merit. Accordingly, we summarily affi rm 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 marr ied in 1971 and had th ree children together, one of whom was under the age of eighteen at the time of the divorce. Wife moved out of the marital resi dence in July 1998, and husband assert s that she deserted the ma rriage. However, wife contends the parties discussed ending the marriage, separating, and selling the marital reside nce prior to her move. Wife filed a bill of complaint seekin g a divorce on the ground of living sepa rate and apart contin uously for a period exceeding one ye ar. She also sought spousal supp ort and the equitable dist ribution of the pa rties' property. The trial cour t granted the pa rties a divorce on the ground of having lived separa te and apart for a peri od in excess of one year. In its July 2, 2002 letter opinion, the trial co urt awarded wife spousal support in the amount of $450 per mont h. It also ordered that the partie s sell the marital resi dence and di vide the net proceeds equally. Husband was to receiv e a monetary credit for the costs of several repairs he had made to the house after the parties separa ted. The trial court also ordere d that husband was responsible for any necessar y repairs to the house as suggested by a real es tate agent and that he would be reimbursed for these repairs from the proceeds of th e sale. The trial court denied husband's reques t for credit for post -separation mortgage payments he made . In addition, the court awarded wife $5,000 in attorney's fees. - 2 -Husband raised obje ctions to the trial court's decision and he requested that the court reconsider its rulings co ncerning the awards for attorney's fees and spousal suppor t and the fa ilure to credit husband for the post-separatio n mortgage payments. The trial court declin ed to reconsider its decision. ATTORNEY'S FEES "An award of attorn ey's fees is a matt er submitted to the trial court's soun d 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, 55 8 (1987) (citation omit ted). "The key to a proper award of coun sel fees is re asonableness 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 marr iage and because the income of the pa rties is substantially identical. Although husband assert ed that wife deserted th e marriage, wife contended that the parties discussed getting a divorce and selling the marital home prior to her moving from the ma rital home. She also indicated that she mo ved from the martial residence only after husband failed to take steps to sell the ho use. Furthe rmore, the trial court grante d the divorce on the grou nd that the parties had lived separate and apar t in excess of one ye ar, not on the ground of desertion. Mo reover, as husband admits, even after taking into account husband' s monthly spousal support paymen t to wife, his - 3 -income remains $1,200 per year greater th an wife's income. Accordingly, the trial court di d not abuse its discretion in awarding wife $5,000 in attorn ey's fees. POST-SEPARAT ION MORTGAGE PAYMENTS The record establishe d that husband retain ed exclusive use of the marital reside nce after the part ies separated. He also made all of the post-separat ion monthly mort gage payments. "Although the separate contributi on of one part y to the acquis ition, 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 no t mandate that the trial court award a co rresponding dollar-for-dollar cr edit for such contributions." Von Raab v. Von Raab , 26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997). In addition, sinc e the parties separated, husband re ceived the tax benefi ts associated with paying the mortgage in terest and the real es tate property taxes for the house, while wi fe paid rent for an apartment wh ere she and several of the parties' children lived. Ther efore, we cannot say that the trial court ab used its discretion by refusing to award husband a credit for his post-separ ation mortgage pa yments on the marital residence property. SPOUSAL SUPPORT "In awarding spousal support, the [trial co urt] must consider the relative needs and abilities of the partie s. [The court] is guided by the . . . factors that are set fort h in Code § 20-107.1. - 4 -When the [trial court] has gi ven due consider ation to these factors, [its] determ ination will not be disturbed on appeal except for clear abus e of discretion." Collier v. Collier , 2 Va. App. 125, 129, 34 1 S.E.2d 827, 829 (198 6). "'In fixing the amount of the sp ousal support awar d, . . . the cour t's ruling will not be disturbed on ap peal unless there has been a clear abuse of discretion. We will reverse the trial court only when its decision is plai nly wrong or without evid ence to su pport it.'" Moreno v. Moreno , 24 Va. App. 190, 194- 95, 480 S.E.2d 792, 794 (1997) (citatio n omitted). In its letter opinion, the tr ial court specif ically stated that it considered the statutor y factors for ma king a spousal support award, including the le ngth of the ma rriage and the earning capaci ties of the parties. Indeed, the evidence showed that husband and wi fe were married for over thirty years. Husband earns $36,000 per year and wife earns $24, 000 per year. Wife is in poor physical cond ition, has undergone se veral recent surgical operations, and fa ces more medical treatmen ts. The evidence also showed that, during th e marriage, wife made numerous monetary and non-monetary contributi ons 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 st ated above, the tria l court did not find that wife deserted th e marriage. Moreover, wife testified that she suffered both verbal and emotional ab use from husband during - 5 -the marriage. Based on this evidence, we cannot say that the trial court abus ed its discretion in awarding wi fe spousal support. CODE § 20-107.1 FACTORS Husband asserts that the trial court erre d in failing to make written findin gs and conclusion s pursuant to Co de § 20-107.1, identifying the fa ctors that support the sp ousal suppor t award. However, husband failed to make this argument to the tria l 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 rela ting to this appeal. Upon co nsideration of the enti re record in this case, we hold that wi fe is entitled to a reasonable amount of attorney's fees in curred in this appeal an d we remand this matter to the trial court for it to determin e the proper amount of the award.

- 6 -Accordingly, we summ arily affirm this ap peal and remand the matter to the trial court for the determinatio n of wife's attorney's fees incurred on appeal. Affirmed and remanded.

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