COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Alexandria, Virginia 

DONALD CARTER BROWN 

v. Record No. 0649-95-4 MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

NANCY N. BROWN FEBRUARY 6, 1996 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 John P. Snider (Donna M. Matthews; Matthews, Snider & 

 Williams, on brief), for appellant. 

 Marcia M. Maddox (Heather A. Dipoma; Law Office of 

 Marcia M. Maddox, on brief), for appellee. 

 

 Donald Carter Brown (husband) appeals from a decree of 

divorce and an equitable distribution award entered by the 

Circuit Court of Fairfax County (trial court) granting the 

divorce to Nancy N. Brown (wife) on the ground of desertion and 

finding that Walter A. Brown of Virginia, Inc. (the corporation) 

was marital property. Husband contends that the trial court 

erred in finding the corporation to be marital property; in 

making the equitable distribution award; and in determining the 

amount of spousal support and attorney's fees awarded to wife. 

 Husband and wife married upon wife's graduation from college 

on August 9, 1958. The two children born of the marriage were 

emancipated at the time the bill of complaint was filed. Wife 

worked full-time for the first two years of the marriage while 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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husband worked and finished college. Upon the birth of the first 

child, with husband's agreement, wife stopped work and did not 

return to work outside the home for twenty years. After college, 

husband went to work in the family real estate and insurance 

business. Husband worked long hours in his insurance business 

and did outside work around the house. He also helped wife with 

tasks which she was not strong enough to accomplish on her own. 

Wife primarily raised the parties' two children and supervised 

their training and care. 

 During the marriage, the parties owned four houses. Through 

a small construction company he partly owned, husband contracted 

to construct one of the family-owned houses. At the time of the 

hearing in this matter, two of the houses had been sold. Of the 

two that remained, one was the marital residence on Princess 

Street in Alexandria, and the other was in Tappahannock, known as 

the River House. 

 Wife testified that the River House was purchased for 

$50,500, and that after paying $10,000 from their joint account 

toward that price, the remaining $40,500 was financed. Husband 

was not consistent in his testimony concerning the method of 

payment for the River House. After stating that he invested his 

own separate funds as the initial partial payment, he claimed 

that payment was in the sum of $30,000, then later admitted the 

first payment was only $10,000. 

 In 1972, husband, his brother, and sister inherited their 
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father's District of Columbia real estate and insurance business. 

Thereafter, in 1974, husband took the insurance business and 

formed a new Virginia corporation, Walter A. Brown of Virginia, 

Inc., also known as Brown Insurance Company. Husband's brother 

kept the inherited real estate business in Washington D.C. The 

parties stipulated that the value of husband's business as of 

1994 was $225,000. The record does not disclose the value of 

assets contributed to the new Virginia corporation or its initial 

value. 

 Wife worked at husband's office for a period of time during 

the marriage and was compensated for her work. She earned her 

resident agent's license to sell insurance and was named as the 

secretary/treasurer of the business. She did some entertaining 

for the office at the parties' home and accompanied husband on 

business trips. 

 In 1988, wife's mother died. Wife inherited a one-third 

share of the assets owned by her mother, plus a one-third 

beneficial interest in a trust established by wife's 

grandmother's will. The inheritance consisted mostly of real 

property in which wife's interest was valued at $1,273,354. 

Between 1988 and the date of the hearing, a "substantial amount" 

of the inherited properties had been placed on the market for 

sale. Some distributions had been made to the beneficiaries in 

small amounts; however, a representative of the trustee testified 

that "the accounts were never in a liquid position in order to 
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make distributions on a regular basis, and if there were 

distributions made at some point in time, they had to be covered 

usually by borrowing at another time." 

 At the time of the final hearing, wife was 58 years old, 

husband was 59, and both were in good health. Wife was employed 

part-time by the Maryland National Capital Park and Planning 

Commission where, she testified, there was no opportunity for 

advancement in her position. Wife's monthly gross income from 

all sources was $2,293.22, there being no income available from 

her inheritance. 

 Husband continued to work for himself in his insurance 

business. The amount of his income shown on his expense sheet 

was $3,000 per month. Husband's accountant testified that 

husband set his own salary and that his commissions had 

"decreased substantially" from $429,000 in 1990 to $319,000 in 

1993. Wife introduced evidence that husband's average taxable 

income for the years 1989 through 1993 was $110,412. Wife 

claimed that her average taxable income was $16,900.60. 

 The trial court recognized that husband's insurance business 

had been inherited by husband, but concluded that the newly 

formed corporation was marital property. The court stated: 

The Court finds that the evidence received 

was inadequate to show the amount of 

[husband's] inheritance now invested in the 

company. The court therefore concludes that 

the corporation's value, $225,000.00, is 

entirely marital property. 

I. The Corporation
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 Husband argues that the trial court's judgment with respect 

to the classification of the marital property is contrary to the 

law and evidence. "A judgment of the trial court will not be set 

aside on the ground that it is contrary to the [law and] evidence 

unless it appears from the evidence that such judgment is plainly 

wrong or without evidence to support it." Dodge v. Dodge, 2 Va. 

App. 238, 242, 343 S.E.2d 363, 365 (1986) (citing Code 

§ 8.01-680). The record shows that the corporation was formed 

during the marriage and fails to show the value of the 

corporation when it was formed or the value of any separate 

property contributed by husband to the corporation. Property 

acquired during marriage is presumed to be marital property, in 

the absence of satisfactory evidence to the contrary. Bowers v. 

Bowers, 4 Va. App. 610, 615, 359 S.E.2d 546, 549 (1987); Rexrode 

v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548 (1986); Code 

§ 20-107.3(A)(2). That presumption places the burden on the 

party seeking to refute it to present evidence to overcome the 

presumption. When that party with the burden of proof on an 

issue fails to meet its burden, it cannot prevail on that 

question. Id. at 617, 359 S.E.2d at 550. Because husband has 

failed to present such evidence, we cannot say that the trial 

court was plainly wrong. 

II. Support

 "The determination whether a spouse is entitled to support, 

and if so how much, is a matter within the discretion of the 
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[trial] court and will not be disturbed on appeal unless it is 

clear that some injustice has been done." Dukelow v. Dukelow, 2 

Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). In our review, we 

must determine if there is evidence to support the trial court's 

discretionary decision. There was evidence that husband's 

average earnings during the past several years were approximately 

$100,000 annually, whereas wife's average income was shown to be 

approximately $16,000 per year. We cannot say that the trial 

court's support award was plainly wrong or without evidence to 

support it. See Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d 

666 (1994). 

III. Marital Award

 Husband further contends that the marital award made to wife 

by the trial court was equal to 55.9% of the marital estate. 

"[T]he percentage of the monetary contributions toward [the] 

acquisition of the marital property is only one factor to be 

considered in making a monetary award." Bentz v. Bentz, 2 Va. 

App. 486, 489, 345 S.E.2d 773, 774-75 (1986). 

 There is no presumption in Virginia favoring equal division 

of marital property. Papuchis v. Papuchis, 2 Va. App. 130, 132, 

341 S.E.2d 829, 830 (1986). This Court has said that the term 

"equitable distribution" does not mean "equal distribution." 

Marion v. Marion, 11 Va. App. 659, 663, 401 S.E.2d 432, 435 

(1991). In reviewing an equitable distribution award on appeal, 

we recognize that the trial court's job is a difficult one. 
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Fashioning an equitable distribution award lies within the sound 

discretion of the trial judge whose award will not be set aside 

unless plainly wrong or without evidence to support it. 

Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 

678 (1978). "Accordingly, we rely heavily on the discretion of 

the trial judge in weighing the many considerations and 

circumstances that are presented in each case." Artis v. Artis, 

4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). 

 We have examined carefully the trial court's letter opinion 

and find that it clearly discloses that the trial court complied 

with the requirements of Code § 20-107.3, and that its findings 

are supported by evidence in the record. Therefore, we cannot 

say that its judgment was plainly wrong. 

IV. Attorney's Fees

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

trial court's sound discretion and is reversible on appeal only 

for an abuse of discretion. Furr v. Furr, 13 Va. App. 479, 484, 

413 S.E.2d 72, 75 (1992). The key to a proper award is the 

reasonableness under all the circumstances. McGinnis v. 

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). In 

review of all the circumstances of this case, we cannot say that 

an abuse of trial court discretion has been shown. 

 Accordingly, for the reasons stated, the findings of the 

trial court are affirmed. 

 Affirmed.