COURT OF APPEALS OF VIRGINIA
Present: Judges Chaf in, Decker and AtLee Argued at Richmond, Virginia

WILLIAM TERRELLE HENDERSON MEMORANDUM OPINION * BY v. Record No . 1364-17-2 JUDGE MARLA GRAFF DECKER MAY 15, 2018 BRIGITTA HENDERSON

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appel lant. James M. Goff, II (Jam es M. Goff II, P.C., on brief), for app ellee.

William Terrelle Henderson (the husband) appeals a final order of the circuit court resolving equitable distribution and support issues in the course of his divorce from Brigitta Henderson (the wife). 1 He contends that the equitable distribution award was flawed based on the court’s improper treatment of various assets and debts. The husband also challe nges the child and spousal support awards, suggesting that the cour t erroneously cal culated the pa rties’ incomes. Finally, he contends that the court abused its discretion in awarding attorney’s fee s and costs to the wife. For the reasons that follow, we affirm the circuit court’s decision in part, re verse in part, and remand for further

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 The wife also noted an appeal t o this Court from the final ord er. See Brigitta Henderson v. William Terrelle Henders on, No. 1402-17-2 (Va. Ct. App. Aug. 31, 2017). These two cases were joined for purposes of oral argument, but the Court resolv es the appeals in separate, simultaneously issued opinions.UNPUBLISHED- 2 - proceedings consistent with this opinion. 2 Additionally, we deny the parti es’ respective requests for attorney’s fees and cost s incurred on appeal.
I. BACKGROUND The parties were married in 1999 . They had two c hildren, who were born in 2002 and 2006. The husband was a professional athlete before and during the ma rriage but retired shortly after their second child was born i n 2006. The couple accumulated substant ial assets, as well as some debts, before separating in 2014. The wife filed a bill o f complaint seeking a divorce, child an d spousal support, equitable distribution, and attorney’s fees and costs. Following two evi dentiary hearings, the court entered a final decree granting the divorc e, distributing the marital pro perty, and awarding child and spousal support. The court also ordered the husband to pay the attorne y’s fees and costs incurred by the wife in the ci rcuit court.
II. ANALYSIS This appeal addresses certain aspects of the circuit court’s e quitable distribution, child and spousal support awards, and attorney’s fees and costs award. A dditionally, each party seeks an award of attorney’s fees and cost s incurred as a result of this appeal. A. Equitable Distribution The husband challenges the court’s classification of two inves tment accounts as marital, as well as the valuation of one of those accounts. He also conten ds that the court im properly classified

2 The record was sealed by the cir cuit court pursuant to Code § 20-124. Nevertheless, the appeal necessitates unsealing relevant portions of the record f or purposes of resolving the issues raised by the husband. Consequently , “[t]o the extent that thi s opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remai ns sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775, 777 n.1 (2017 ).- 3 - as marital property the “line-of-duty” benefits he received bas ed on his work as a professional athlete. Code § 20-107.3 requires the circu it court, at the request of divorcing parties , to classify property owned by the parties separ ately or jointly as separate , marital, or part separate and part marital for purposes of equitabl e distribution. It further req uires the court to value the property and distribute the value of prope rty that it classifies as mari tal. Code § 20-107.3; see Stumbo v. Stumbo, 20 Va. App. 685, 692-93, 460 S.E.2d 591, 595 (1995). On appellate review, a circuit c ourt’s equitable distribution award “will not be overturned unless the Court finds ‘an abus e of discretion, misapplication or wrongful application of the equitable distribution statute , or lack of evidence to support the award.’” Wiencko v. Takayama, 62 Va. App. 217, 229-30, 745 S.E.2d 168, 174 (2013) (quoting Mc Ilwain v. McIlwain, 52 Va. App. 644, 661, 666 S.E.2d 538, 547 (2008)). “It is well es tablished that [the circuit court as] the trier of fact ascertains a w itness’ credibility, determines the weight to be given to [his or her] testimony, and has discretion to accept or reject any of the wi tness’ testimony.” Layman v. Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoti ng Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) ( en banc )).
1. Investment Accounts The husband disputes the court’s rejection of his evidence pur porting to trace the funds in two Wells Fargo accounts to his separate property. He also con tests the court’s failure to deduct the amount of a lien as part of the process of valuing one of t he accounts.- 4 - a. Classification and Tracing 3
We first address the classifi cation of the accounts for purpose s of equitable distribution. The circuit court must classif y property as separate or marital , or part separate and part marital, before valuing and dividing it i n equitable distribution. See Code § 20-107.3(A). Settled principles provide that all property “acquired by each party during the marriage which is not separate property a s defined [in subdivision (A)(1 ) of Code § 20-107.3]” is presumed marital. Code § 20-107.3( A)(2)(iii). Subdivision (A) (1) defines separate property to include “all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided t hat such property acquired duri ng the marriage is maintained as separate property.” Code § 20- 107.3(A)(1)(iii). Once the pres umption that property acquired during the marriage is marital p roperty comes into play, “[t]he party claiming that property should be classified as separate has the burden to produce sati sfactory evidence to rebut this presumption.” Joynes v. Payne, 36 Va. App. 401, 428, 551 S.E.2 d 10, 23 (2001) (quoting Stroop v. Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990)). A party’s ability to do so may rest on the credibility of his evidence. See Anderson v. Ander son, 29 Va. App. 673, 685-87, 514 S.E.2d 369, 375-76 (1999). Classifica tion of property, includi ng whether a party has successfully proved that property presumed to be marital “was a cquired ‘for or from the proceeds of the sale of separate prope rty,’” is a question of fact and w ill not be reversed unless “plainly wrong or without evidence to s upport it.” See Ranney v. Ranney , 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005) (quoting Code § 20-107.3(A)(1)). The dispute involves whether the funds in Wells Fargo accounts #5889 and #7913, titled only in the husband’s name, were marital or separate property f or purposes of equitable distribution. The accounts came into existence in 2004, signif icantly after the parties married in

3 This section of the opinion addr esses assignments of error 1 through 4.- 5 - 1999. Consequently, the accounts are presumed to be marital. See McIlwain, 52 Va. App. at 656-58, 666 S.E.2d at 544-45; Lambert v. Lambert, 6 Va. App. 94 , 99, 367 S.E.2d 184, 187 (1988). The husband claims that the accounts were funded with sums that were his separate property and remained his sepa rate property. A ccordingly, he b ore the burden of tracing those funds to his wholly separate pr operty, with evidence found cred ible by the trier of fact. See Anderson, 29 Va. App. at 685-87, 514 S.E.2d at 375-76. The husband’s evidence was that he had a separate premarital br okerage account, First Union/Wachovia account #0410. He cl aimed that this account, ev en after the marriage, contained only his separate funds earned prior to the marriage. He also testified and offered evidence from various bank employees that this account was the source of all of the funds that he deposited into Wells Fargo accounts #5889 and #7913. However, it is undisputed that the husband was unable to produce any r ecords for the First Union/W achovia account #0410 for the years 2001 to 2004. The stipulated testimony of a Wells Fargo employee confirmed the unavailability of these records. I n the absence of these recor ds, the circuit court held that the husband had not borne his burden of proving that the funds in a ccounts #5889 and #7913 were his separate funds. The court, a s the finder of fact, conclude d that the husband’s testimony about the source of the funds in First Union/Wachovia account #0410 p rovided insufficient evidence to meet his burden of tracing the funds to his separate property. 4 See Anderson, 29 Va. App. at 685-87, 514 S.E.2d at 375-76 (where the husband presented only a single account statement when tracing funds over a nine-y ear period, holding that the tr ier of fact was “entitled to give no

4 The circuit court described the missing records as “a three[-] year black hole from 2001 to 2004” and said it could not conc lude that the husband presen ted adequate evidence tracing the funds to his separate property “without . . . engaging in guess work or speculation.” The court also noted that it “received no evi dence as to the formation of [account #0410] or the source of the initial deposits” and “ha[d] only [the husband’s] testimonythat the account consisted of his pre-marital salary and bonuses.”- 6 - weight to [the] husband’s test imony that the funds . . . were m aintained as separate property, particularly in the absence of doc umentary evidence”). Counsel for the husband conceded at the evidentiary hearing that “ [y]es, it comes down to [the husband’s] credibility ,” but counsel argued that “the math works.” (Emphasi s added). The mere fact that the husband was able to prove that he had pre-1999 earnings and bonuses in an amount sufficient to fund account #0410, the amount he claims to have traced, was insufficient to meet his burden o f proof. See Lee v. Lee, 13 Va. App. 118, 121-22, 408 S.E.2d 769, 770-71 (1991) (holding th at the circuit court did not err in classifying a certificate of deposit purchased in the husban d’s name during the marriage as marital property because no evide nce supported his claim that h e purchased it with separate property in the form of h is disability payments). Consequently, the record supports the circuit court’s classific ation of Wells Fargo accounts #5889 and #7913 as marital. b. Debt and Valuation 5
We next turn to the circuit court’ s classification of the lien on Wells Fargo account #5889 and the impact of that classifi cation on its valuation of the a ccount. The parties stipulated to the account balance and the amount of the lien against it, which was in the form of a secured equi ty line. The husband’s financ ial consultant at Wells Fargo testified that the note securi ng the lien was in the husband’s name. The circuit court addressed the outstanding equity line balanc e separately from its valuation and distribution of the account. It valued the accou nt in accordance with the parties’ stipulation concerning the account balance, without considering the amount of the lien, and ordered the account divided equa lly, awarding each party half the value of the balance. Although it accepted the parties’ s tipulation regarding the amo unt of the secured debt and

5 This section of the opinion addr esses assignments of error 5, 7, 8, and 9.- 7 - classified the debt as marital , the court found that the partie s had presented insu fficient evidence to permit it to determine whether the secured debt was jointly owned. It held under Code § 20-107.3(C) that in the absence of such evidence, it lacked t he authority to divide the debt. The court then stated that it w ould reach the same result even if it applied the presumption in Code § 20-107.3(A)(2) that marital property is jointly owned be cause it would exercise its discretion not to di vide the debt. The appellate court must rever se an equitable distribution awar d if it finds a “misapplication or wrongful app lication of the equitable distri bution statute.’” Wiencko, 62 Va. App. at 229-30, 745 S.E.2d at 174 (quoting McIlwain, 52 Va. App. at 661, 666 S.E.2d at 547). Code § 20-107.3 requires a court effecting an equitable distribution to proceed in an orderly fashion: Specifically, it must (1) “classify the prope rty,” (2) “assign a value” to the property, and (3) “distribute the property to the parties, taki ng into consideration the factors listed in Code § 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809, 812, adopted upon reh’g en banc, 23 Va. App. 697, 479 S.E.2d 53 4 (1996). Code § 20-107.3(E) requires the circuit court, when distributi ng the marital prope rty during the final phase of the process, to consider the “debt s and liabilities of each spouse, the basis for such debts and liabilities, and the prope rty which may serve as security for s uch debts and liabilities.” Code § 20-107.3(E)(7). “However, to the extent that a valid indebte dness which is secured creates an encumbrance on the legal title” of marital property, we have he ld that this “indebtedness must be considered” by the circuit court at an earlier stage in the pro cess, when “determining the value of the marital property.” Trivett v. Trivett, 7 Va. App. 148, 151 , 371 S.E.2d 560, 562 (1988) (emphases added). Applying these principles, we hol d that the circuit court, bef ore distributin g Wells Fargo account #5889, had to value the account properly by deducting the lien on the account—the- 8 - secured debt owed on the equity line. Consequently, we reverse and remand to the circuit court to correctly calcula te the value of the account before dividing it. On remand, the court should once again apply the subsection ( E) factors to determine the di stribution of the account. See generally Gamer v. Gamer, 16 Va. App. 335, 344, 429 S.E.2d 618, 624-25 (1993) (“Each marital asset is not necessarily entitled to be treated the same for purposes of equitable distribution. The [circuit court] may determine, depending upon how the factors i n Code § 20-107.3(E) are applied, that certain marital assets should be divided and trea ted differently than others.”), quoted with approval in Judd v. Judd, 53 Va. App. 578, 592, 673 S.E.2d 913, 919 (2009). Based on our ruling that the cour t was required to deduct the amount of the secured debt in determining the value of the property, we need not address the appellant’s argument in his seventh assignment of error that the court misperceived the ran ge of its authority regarding division of the debt under Code § 20-107.3(C). 2. Line-of-Duty Disability Benefits The husband challenges the circui t court’s clas sification of be nefit payments that he received called line-of-duty (L OD) payments. He received the L OD payments based on his former employment as a professional athlete. The parties agree regarding the amount of Wells Fargo account #5608 that comprises the LOD payments at issue. The record contains a copy of the detailed official summary of the “Player Retirement Plan.” The included cover lette r states that the retirement pl an provides eligible employees with “pension and disability benefits,” as well as “survivor protect ion for [employees’] wives and famil[ies].” The plan covers re tirement benefits and disabilit y benefits, and it defines disability benefits to include both “total and permanent disability benefi ts” and “line-of-duty disability benefits.” The plan’s vesting re quirements, which are based pr imarily on an employee’s receipt- 9 - of credits for being under contract for a certain number of sea sons, cover all categories of benefits. 6 The “monthly retirement benef it” is calculated based on (1) the number of the employee’s benefit credits fo r credited seasons, (2) age upon b eginning to receive benefits, and (3) the form chosen for those benefits. The plan lists the nor mal retirement age as fifty-five but also permits early retirement and deferred retirement under cer tain circumstances. Additionally, an employee who is not already rec eiving ordinaryretirement benefits may elect to receive disability benefits under the plan if he can p rove either “perman ent disability” that is “total” or a lesser de gree of permanent disability invo lving “substantial disablement,” as defined in the plan. Permanent be nefits for total disability m ay be paid for the duration of an employee’s life. An employee w ho meets the lesser standard of “substantial disablement” is eligible to receive LOD disabili ty benefits, which are payable for up to ninety months. Finally, a vested former employee who colle cts disability benefits remains entitled to “all other (non-disability) Retirement Pla n benefits” in addition to the d isability benefits, “although [an employee] cannot receive both a ret irement benefit and a disabi lity benefit for the same period of time.” 7 The husband’s LOD payments were deposited directly into one of his accounts. The statement that he received each month to document the deposit, titled “Retirement Pl[an]” and “Direct Deposit Summary,” specifi cally referenced the sum as “P ension.”

6 An employee also becomes veste d if he qualifies for total and permanent disability payments. Finally, additional “s pecial [vesting] rules” permit other employees to qualify for regular retirement benefits but no t disability retirement. The se rules are not applicable in this case.

7 The husband testified regarding how the LOD disability benefit s and more traditional retirement benefits function under the plan. The circuit court , as the finder of fact, was not required to give any weight to hi s testimony, particularly in l ight of the presence of the plan summary booklet in the recor d. See, e.g., Layman, 62 Va. App. at 137, 742 S.E.2d at 891.- 10 - Code § 20-107.3(G)(1), in relevant part, relates to the divisi on of the marital share of

“ any pension . . . or retirement bene fits.” Code § 20-107.3(G)(1) (emphasis added). It classifies as marital all such benefits the right to which is earned durin g the marriage. See id. The husband argues that the payments should instead be treated like a personal injury award under Code § 20-107.3(H). Subsection (H), w hich addresses the treatm ent of both personal injury and workers’ compensation awards, classifies as marital only the portion of the awa rd attributable to wages lost and medical expenses unreimbursed during the marriag e. The husband asserts that his LOD payments are not compens ation for lost wages or unreimb ursed medical expenses but, rather, cover his pain and suffe ring for work-related injuries. Consequently, he c ontends that the benefits were wholly separate property and that th e circuit court erred in classifying them as marital. Classification of property is ge nerally a question of fact and will not be reversed unless “plainly wrong or without evidence to support it.” See Ranney, 45 Va. App. at 31-32, 608 S.E.2d at 492. However, the appellate court reviews the circui t court’s “statutory interpretations and legal conclusions de novo .” Craig v. Craig, 59 Va. App. 527, 539, 721 S.E.2d 24, 29 (20 12) (quoting Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004)). Manifestly, “the meaning of ‘any pension . . . or ret irement benefits’” in Code § 20-107.3(G)(1) and what payments are encompassed within the statute’s terms is “a quest ion of law” reviewed de novo

. Navas, 43 Va. App. at 487, 599 S.E.2d a t 480 (alteration in ori ginal). These same principles apply to the scope of subs ection (H). See id. The circuit court ruled that the LOD payments are a retirement benefit subject to distribution under Code § 20-107.3(G) . In light of the statuto ry language as interpreted by this Court in Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643 (200 0), and Navas, 43 Va. App. 484,- 11 - 599 S.E.2d 479, we agree with the c ircuit court and hold that the husband’s LOD disability payments are “pension . . . or ret irement benefits” under Code § 20-107.3(G)(1). In Asgari, the husband was injure d while working for a state ag ency and received disability retirement benefits from the Virginia Retirement Sys tem (VRS). 33 Va. App. at 397, 533 S.E.2d at 645. Documentation from the VRS “specifically re ferenced” the benefits as “‘Line of Duty Disability Retirement’ [that was] based upon” his years of service and salaries earned. Id. The circuit court ruled that the husband’s disability reti rement was marital property, and the husband appealed. Id. at 400-01, 533 S.E.2d at 647. On appeal, this Court review ed the language of Code § 20-107.3( G)(1) and emphasized the legislature’s “clear[] ‘inten[t] [that] all pensions ’” be subject to equi table distribution pursuant to the statute. Id. at 401, 533 S.E.2d at 647 (emphas is added) (quoting Sawyer v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 280 (1985)). It hig hlighted the definition of a pension as “a retirement benef it paid regularly, with the amoun t of such based generally on length of employment and amount of wages or salary of [the] pen sioner” and further described as “deferred compensation for se rvices rendered.” Id. (quoting Ba nagan v. Banagan, 17 Va. App. 321, 324, 437 S.E.2d 229, 230-31 (1993)). It reasoned that the “‘all inclusive language’” of subsection (G)(1) “does not sugge st the exclusion of ‘disabilit y pensions.’” Navas, 43 Va. App. at 488, 599 S.E.2d at 481 (quoting Asgari, 33 Va. App. at 401, 533 S.E.2d at 647). The Court emphasized that the VRS benefit was “a function of [the husband ’s] employment service, average wages and age.” Asgari, 33 Va. App. at 402, 533 S.E.2d at 648. Finally, it recognized that all documentation related to t he benefit referenced it as “Retirement,” “Disability Retirement,” or the “like” and “ includ[ed] a de signated ‘retire ment date.’” Id. at 402, 533 S.E.2d at 647-48. That the husband als o had to prove an injury qualif ying as a disability did not change- 12 - the classification of the LOD paym ents as “a ‘pension’ or ‘reti rement benefit’” under Code § 20-107.3(G). See id. at 401-02, 533 S.E.2d at 647-48. The Court subsequently applied A sgari in Navas and again held that the wife was entitled to a marital share of her husba nd’s disability retirement. 43 Va. App. at 488-89, 599 S.E.2d at 481-82. It noted that the divorce de cree’s award to the wife o f a portion of the marital share of the husband’s pension encompassed all three ways the retirementplan set out for a vested employee to receive benefits , including disability. Id. at 487 , 599 S.E.2d at 480. The Court further observed that the disabi lity allowance was available un der the plan to any employee who suffered a qualifying disability “ before becoming eligible for [regular retirement] benefits.” Id. at 489, 599 S.E.2d at 481. Finally, itnoted that the benefit was “calculated in the same way as the normal retirement allowance” and “replace[d]” the benefit that the husband would later have qualified to “receive[] had he not been injured.” Id. at 487, 489-90, 599 S.E.2d at 480-81. The holdings in Asgari and Navas control the outcome in the ins tant case. 8 Here, like in Navas, the retirement plan’s terms set out multiple ways in whi ch the husband was entitled to receive benefits under the plan, including through regular reti rement and disability. See Navas, 43 Va. App. at 487, 489-90, 599 S.E.2d at 480-81. The husband’ s eligibility for the LOD benefits, like the more traditi onal retirement benefits availab le under the plan, was based in part

8 At the time Asgari and Na vas were decided, in 2000 and 2004 re spectively, Code § 20-107.3(G) and (H) were both in existence. See 1990 Va. Act s ch. 636 (reflecting subsection (G) and the addition of subsection ( H)). The statute has been amended seven times since this Court decided Asgari, yet the G eneral Assembly has not modifiedit to negate the effect of Asgari or provide that line-of -duty disability benefits should be classified as a personal injury or workers’ compensation award under (H) rather than as a “pension. . . or retirement benefits” under (G). See 2004 Va. Acts chs. 654, 757; 2006 Va. Acts ch. 260; 2010 Va. Acts ch. 506; 2011 Va. Acts ch. 655; 2012 Va. Act s ch. 144; 2016 Va. Acts ch. 559; 2017 Va. Acts ch. 797; see also Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730 (2001) (“When the General Assembly acts in an ar ea in which one of its appellate courts already has spoken, it is presumed to know the law as the co urt has stated it and to acqu iesce therein, and if the legislature intends to countermand such appe llate decision it must do so ex plicitly.”).- 13 - on credited seasons of service t o his employer, and the method for calculating the amount of the LOD benefits was similar to the method used for calculating ret irement benefits under the plan, just as in Asgari and Navas. See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; Asgari, 33 Va. App. at 401-02, 533 S.E.2d at 647- 48. Further, the retirem ent plan did not permit the husband to receive both traditiona l retirement and LOD disabili ty benefits for the same period of time. This fact supports the infer ence that the LOD benefits f unctioned like traditional retirement benefits in terms of their wage replacement purpose. See Navas, 43 Va. App. at 490, 599 S.E.2d at 481-82. Additionally, like in Asgari, the benefi ts at issue were characterized as line-of-duty disability payments , and the account statement tha t the husband received each month to document the direct depos it of the benefits into his a ccount specifically referenced the sum as “Pension,” a category of benefits expressly covered by C ode § 20-107.3(G)(1). See Asgari, 33 Va. App. at 402, 533 S.E.2d at 647-48 (examining the “characterization” of the benefits in the relevant documents). The requirement that the husba nd prove a qualifying injury did not change the classification of the LOD disabi lity benefits as pension or ret irement benefits under subsection (G). See Navas, 43 Va. App. at 489-90, 599 S.E.2d at 481-82; A sgari, 33 Va. App. at 401-02, 533 S.E.2d at 647-48. Finally, the f act that the benefits were available for only afinite period of ninety months, after which the husband would be eligible to rec eive “regular” retirement benefits- 14 - under the plan, does not change the nature of the benefits. 9 Cf. Navas, 43 Va. App. at 490, 599 S.E.2d at 482 (noting the plan prov ision preventing an employee from receiving a disability allowance “at the same time” as normal or early retirement unde r the plan). Consequently, we hold that the ci rcuit court did not err in cla ssifying the husband’s LOD disability benefits as marital property subject to equitable di stribution. B. Child and Spousal Support With regard to the awards of ch ild and spousal support, the hu sband asserts that the circuit court erroneously calculated both parties’ incomes because it f ailed to account for the impact of the equitable distribution award. Specifically, he argues that the court should have adjusted his income downward and the wife’s income upward based upon the court’s aw ard to her of 50% of two Wells Fargo accounts, #5889 and #7913, i n the equitable distrib ution ruling. Virginia’s statutory scheme requi res that the spouses’ respecti ve incomes must be calculated before a court may de termine how much child and spou sal support is owed and to whom. See Code § 20-107.1(E)(1), -108.2(B)-(C). The relevant statutes also requi re the circuit court to consider, eith er directly or indire ctly, the “provisio ns made with regard to the marital

9 On this record, contrary to the husband’s suggestion, we need not consider persuasive authority from other jurisdicti ons because Virginia’s statutory scheme and existing case law resolve the issue. In any eve nt, the holding in Wright v. Wrig ht, 730 S.E.2d 218 (N.C. Ct. App. 2012), cited by the husband, is di stinguishable. In deciding J ohnson v. Johnson, 450 S.E.2d 923, 925-26 (N.C. Ct. App. 1994), subsequently relied upon in Wright , 730 S.E.2d at 220, the North Carolina Court of Appeals recogn ized a split of authority and “ agree[d] with . . . states” classifying any portion of disabil ity benefits that “compensate for disability” as separate property. This Court, by contrast , rejected a similar argumentin Asgari and adopted a unitary approach to classifying disab ility retirement benefits. 33 Va. App. at 401-02, 533 S.E.2d at 647-48. We are bound by Asgari, not Johnson or Wright.- 15 - property under § 20-107.3” in effect ing an equitable distributi on of the marital estate. 10 Code § 20-107.1(E)(8) (relating to spous al support); see Code § 20-1 08.2(C) (providing that “gross income” for purposes of calcula ting child support “means all in come from all sources,” including dividends, interest, and capital gains); see also Code § 20-108 .1(B)(12) (permitting a court to deviate from the presumptive calculation under the child support guidelines where property received by a parent in equitabl e distribution “earns income or has an income-earning potential”). Accordingly, our rul ing reversing the equitable d istribution award and remanding for additional proceedings requires that the circuit court, on remand, also revisit the awards of child and spousal support. S ee Robinson v. Robinson, 46 Va. Ap p. 652, 671, 621 S.E.2d 147, 156-57 (2005) ( en banc ). C. Attorney’s Fees and Cos ts in the Circuit Court The husband suggests that the cir cuit court errors he raises on appeal, as well as the other issues that were resolved agains t the wife in that court, requi re the conclusion that the court “abused its discretion in award ing [the wife] every single penn y of her attorney’s fees and costs.” He further claims that the c ourt’s fee award was based on the “ rationale that the fees were all a result [of his] adulterous conduct” and that this rationale is not supported by the record. If a divorce matter does not invol ve a property settlement agr eement that “contain[s] a provision governing a fee dispute , ‘[a]n award of attorney’s fe es and costs “is a matter for the trial court’s sound discretion aft er considering the circumstan ces and equities of the entire case.”’” Jones v. Gates, 68 Va. App. 100, 105, 803 S.E.2d 361, 364 (2017) (quoting Mayer v.

10 The evidence indicates that in 2015, prior to the court’s orde r of division, the Wells Fargo accounts produced more than half of the income reflected on the husband’s income and expense statement. The record a lso appears to reflect that the court calculated the husband’s income for purposes of child a nd spousal support without adjust ing the figures on t hat exhibit. It further appears that the court used an income figure for the wi fe that included only the employment income that it imputed to her.- 16 - Corso-Mayer, 62 Va. App. 713, 731, 753 S.E.2d 263, 272 (2014)). “Such decision ‘is reviewable on appeal only for an abuse of discretion.’” Id. (q uoting Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). As with any ot her issue, this Court must defer to any findings of fact underpinni ng the circuit co urt’s award of fees and costs. See C.S. v. Va. Beach Dep’t of Soc. Servs., 41 Va. App. 557, 566, 586 S.E.2d 88 4, 888 (2003); see also Green v. Va. State Bar ex rel. Seventh Dist. Comm., 274 Va. 775, 789, 65 2 S.E.2d 118, 125 (2007) (stating that “factual findings [are] given ‘substantial weight ’ under [an] abuse of discretion standard” (quoting Blue v. S eventh Dis. Comm., 220 Va. 1056, 10 61-62, 265 S.E.2d 753, 756-57 (1980))). The record, so viewed, supports t he circuit court’s award of f ees and costs and does not support the husband’s claim that the court found that the basis for all the fees and costs was “a result [of the husband’s] adulte rous conduct.” Rather, the cou rt relied on the husband’s adultery only indirectly, in a manner thatdid not constitute an abuse o f discretion. The court noted first the fact that the husband had both “vastl y more income” than the wife and vastly more earning poten tial. This finding is supported by the record, which indicates that the husband has a college deg ree and continues to earn app earance fees based on his former career as a professional athlet e. The wife, by contrast, never finished college, worked at relatively low-wage jobs, and di d so for only a small portion o f the marriage. The circuit court also found tha t the wife had little knowledge about the family’s finances during the marriage and, consequently, had to “incur many expen ses in order to prepare and argue for her equitable share.” The court further found that the husband’s “adulterous conduct,” which the evidence establishe d occurred repeatedly throughout the marriage, “destroyed [the wife’s] trust in him.” Finall y, the court found that the wife’ s questioning of the husband’s “forthrightness” reg arding finances in the di vorce litigation w as “the logical, reasonable, and- 17 - understandable reaction to [his] adulterous conduct” and that “ the [in]escapable consequence of such conduct [was] incurring attorney’s fees.” The court’s rationale for awa rding fees and costs and its under lying findings of fact indicate that the award did not stem from the adultery itself and was not an abuse of discretion. D. Attorney’s Fees a nd Costs on Appeal Each party seeks an award of a ttorney’s fees and costs on appea l. Pursuant to Rule 5A:30, in specified cases in whi ch attorney’s fees are recovera ble under Title 20 of the Code of Virginia, the Court of Appeals “m ay award” some or all of the f ees requested or “remand the issue to the circuit court . . . f or a determination thereof.” Rule 5A:30(b)(1), (2). Whether to award fees is discretionary. See id.; Harper v. Va. Dep’t of T ax’n, 250 Va. 184, 194, 462 S.E.2d 892, 898 (1995). In determining whether to make such an award, the Court may consider factors including whether the requesti ng party has prevailed, whether the appeal was “fairly debatable” or frivolous, whether either pa rty “generated unnecessary delayor expense” in pursuing his or her interests, and whether other reasons exist to support an aw ard of attorney’s fees and costs. See Rule 5A:30(b)(3), (4); Brandau v. Brandau, 52 Va. App. 632, 642, 666 S.E.2d 532, 538 (2008); Estate of Hackle r v. Hackler, 44 Va. App. 51, 75, 602 S .E.2d 426, 438 (2004); O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In addition, Rule 5A:30(b)(3) specifically directs this Court to “consider all th e equities of the case.” Considering all the factors se t out in Rule 5A:30 and the appli cable case law, we see no reason that either the husband or the wife should be required t o pay the other party’s attorney’s fees and costs in this case. Acco rdingly, in the exercise of o ur discretion, we decline to make an award of attorney’s fees and cos ts to either party. See, e.g., Wright v. Wright, 61 Va. App. 432, 470, 737 S.E.2d 519, 537-38 (2013).- 18 - III. CONCLUSION In sum, we affirm the circuit co urt’s classification of Wells F argo accounts #5889 and #7913 as marital, including its fi nding that the husband failed to trace the funds in the accounts to his separate property. We als o affirm the court’s conclusio n that the husband’s LOD disability benefits constituted fully divisible pension or retirement bene fits rather than a personal injury award with a separate component . We hold that the court erred by failing to subtract the lien on Wells Fargo account #5889 in order to value the account before distributing it between the parties. Consequently, we revers e on this aspect of the equita ble distribution ruling and remand for a redetermination of valuation and division. Additionally, because the circuit court must correct its equitable distribut ion award, it must also consider on remand any necessary adjustments to its child and s pousal support awards in light of the adjustment in the equitable distribution. Regarding the cir cuit court’s aw ard to the wife of her attorney’s fees and costs in that court, the circ uit court’s findings of fact, which are not plainly wrong, esta blish that it did not abuse its discretion by maki ng that award. Finally, we den y the parties’ requests for attorney’s fees and costs in this appeal. Affirmed in part and reverse d and remanded in part.