COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Humphreys and Powell Argued at Richmond, Virginia

ALEXANDER M. RINALDI OPINION BY v. Record No. 1031-08-2 JUDGE LARRY G. ELDER DECEMBER 16, 2008 LORI A. RINALDI

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge Barry Randolph Koch (Inman & Strickler, P.L.C., on brief), for appellant. Richard L. Locke (Shannon S. Otto; Locke Partin & DeBoer, on brief), for appellee.

Alexander M. Rinaldi (husband) appeals fr om an award of equitable distribution and attorneys’ fees issued as part of the dissolution of his marriage to Lori A. Rinaldi (wife). On appeal, he contends the trial cour t’s classification and di vision of some of the property was error and that its order to him to pay a portion of wife’s attorney’s fees was also error. We hold the

trial court’s classification and division of the parties’ propert y and the earnings thereon was supported by the evidence. We hold the trial cour t did not err in awarding wife a portion of her attorney’s fees, and we decline to make an awar d of fees on appeal. Thus, we affirm the award of equitable distribution.

I. BACKGROUND When husband and wife married in 1997, husband owned a home on Floyd Avenue in Richmond that became the marital residence. He had purchased the home himself and was solely obligated on the mortgage until the partie s refinanced the property during the marriage.- 2 - When the parties married in 1997, wife had just finished law school and had student loans outstanding at that time. Husb and was working as a hospital la boratory technician, but after a period of time, the parties agreed that husband, who perceived that job as overly stressful, would reduce his hours so that he could operate his own construction company. Husband eventually ceased to be employed by the hospital, working only at his construction business, while wife worked as an attorney. The parties had tw o sons born during the marriage, in 2002 and 2004, and they separated in 2006. In 1999, husband received an inheritance from his mother. When the parties purchased a parcel of riverfront property for $105,000 that same year, husband contributed $25,750 of his inheritance toward the down payment. The part ies contributed $500 of marital funds to the down payment, and they used marital funds to make mortgage payments totaling $18,120. After purchasing the property, the parties added a dock. They hired a contractor to put in the pilings at a cost of $5,950, and then the part ies, along with friends and family, constructed the dock atop the pilings. Wife conceded the co st of putting in the pilings “probably did come from [husband’s] inheritance,” and husband later te stified that it did. He conceded that at least some of the lumber for the dock was paid for from a joint account contai ning marital funds. The appraiser indicated the presence of the dock increased the property’s value by about $20,000. The parties also installed a septic system on the property at a cost of $3,450, which husband paid from his separate inheritance. Hu sband testified that installation of the septic system increased the value of the property by $12,000. When wife was asked whether it “was a valuable addition to the propert y,” she said, “We haven’t used it.” (When husband’s counsel pointed out that a septic system would be required to obtain an occupancy permit for any residence that might be built on the property, wife agreed.) When counsel then said, “So that added materially to the value of the property, didn ’t it?,” wife responded, “Only the cost of what- 3 - it cost.” Counsel continued, “Y ou don’t think it was worth more as a building site where you could actually connect to build the house and ge t an occupancy permit than it would be otherwise

if it didn’t have that? It ha d to have added something to the value.” When wife’s counsel objected, stating, “Is he testifying? She already answered no,” the trial court responded, “I think it does. Go on to the next question.” Wife offered evidence that her earnings from her employment during the marriage exceeded $543,000 whereas husband’s earnings for that same period were approximately $200,000. Wife testified husband’s income from his construction business wa s sporadic and that her income was used to pay the mortgage on th e Floyd Avenue and riverf ront properties, the utility expenses, and wife’s student loan paymen ts. She also testified that husband’s income ranged from $200 to $600 every two weeks and that it typically covered their groceries and gasoline for their vehicles. Wife also testifie d that husband used marijuana on a daily basis for the duration of their marriage a nd that it negatively impacted th e family in both monetary and non-monetary ways. She said husband’s daily ma rijuana use negatively impacted his willingness to work full-time and that because he often slept late, it often took him two to three times longer than necessary to finish his construction jobs. Thus, she testified it reduced the amount of income he earned and, additionally, that he sm oked at least $5 worth of marijuana per day. She also testified about the non-monetary im pact of husband’s marijuana use. She said

that because she refused to allow husband to sm oke marijuana around the children, he was absent from the home or at least from their presence ev ery morning and evening in order to do so. She testified that in the mornings, she would wake up, dress and feed the child ren and transport them to daycare before husband arose, and that in th e evenings, husband woul d leave the house or go to the unfinished basement to smoke marijuana, leaving wife to care for the children and the

household. Wife testified that she was left to do the housework, manage the parties’ finances,- 4 - grocery shop, cook, and care for th e children. Wife testified that husband’s marijuana addiction, its impact on the family, and his refusal to ob tain treatment caused the irreconcilable breakdown in the marriage. The parties agreed on the fair market value of the Floyd Avenue and riverfront properties but disagreed over how the parties’ respective shar es of the equity should be calculated and

divided. Husband asked that the marital shar e of each of the two pr operties be calculated pursuant to the Brandenburg formula as recognized in Hart v. Hart , 27 Va. App. 46, 6l-66, 497 S.E.2d 496, 505-06 (1998). Wife asked the court to apply our holding in Keeling v. Keeling , 47 Va. App. 484, 624 S.E.2d 687 (2006), to calculate the marital share of the riverfront property.

As to the overall division of the marital assets , husband sought a dollar- for-dollar credit pursuant to Code § 20-107.3(D)(10) for half the amount by which marital income was used to reduce

wife’s student loan debt and aske d that the remaining marital shares of the real estate be divided equally. Wife asked the court to divide the marita l shares of the two piece s of real estate with 75% to her and 25% to husband based on her larg er monetary and non-monetary contributions to the marriage and husband’s negative monetary and non-monetary contributions. Husband sought an equal division. The trial court ruled as follows with respect to the riverfront property: [The property] has an agreed upon value of $265,000.00, with a mortgage balance of $40 ,630.00, leaving equity of $204,370.00. . . . The down payment was $26,250.00, which is the purchase price less the initial mort gage amount. The parties agree it should be classified as hybrid. The Court further believes that in analyzing the improvements made to the dock wh ich increased the value of the home by $20,000,00, the value should be added to the property and not as a credit to the husband as stated in Hart v. Hart , 27 Va. App. 46 (1998). Marital funds were used to pay on the principal mortgage in the total sum of $18,120.00. The Court adopts the amounts presented by Mrs. Rinald i stating that the marital contribution to the river pr operty is the $500.00 downpayment,- 5 - $20,000.00 for the new dock, and $18,120.00 mortgage contributions, for a total marital contribution of $38,620.00. Husband’s separate contributi on is in the amount of $25,750.00, for a total contribution of $64,370.00. Having considered the two prevalent formulas for determining separate and marital interests, the Court believes that the Keeling formula is the bett er formula under the facts and evidence of this case. The C ourt adopts the calculations by the Keeling formula as stated in [wif e’s] latest brief and adopts the calculations therein, aw arding Mr. Rinaldi $42,100.22, representing 20.6% of the equity in the property.

The Court considered Mrs. Rinaldi’s income and the market increase in real estate values during this period of time which created the large equity in the property.

Wife’s calculations on brief submitted to th e trial court and expressly adopted by the

court were as follows: Husband’s separate contributi on to the River Property was $25,750. The purchase price of the property was $105,000, plus the addition of the dock valued at $20,000, for a total investment of $125,000. Husband’s separate contribution equaled 20.6% of the purchase price plus the dock. The total equity in the River Property at the time of trial was $204,370 ($265,000 less mortgage balance of $60,630). Accordingly, Husband should receive 20.6% of the equity (or net sales proceeds) in the River Property, or $42,100.22, as payment for his separate contribution under the Keeling formula. The remaining equity (or net sales proceeds) . . . is marital property . . . . After calculating the amount of equity in each property that was separate and marital, the court ordered that the marital eq uity be divided with 60% to wife and 40% to husband. In making that division, the court stated as follows: The Court has considered the various factors required by 20-107.3(E) in all respects and weighed them in making the decision. The Court notes that the parties had been married almost ten years and two children were born of the marriage. Both parties have enjoyed considerable inco me, though Mrs. Rinaldi’s income is considerably higher than Mr. Rinaldi’s income. She has made over $500,000 in the last seven year s, while Mr. Rinaldi has made- 6 - a little over $200,000. Apparently among the reasons for husband’s lesser income was his use of marijuana. Otherwise, the parties appear to be in good health. Both are employed and both have made monetary and nonmonetary contributions to the marriage. Mr. Rinaldi has made nonmonetary contributions to the marriage in his renovations to the two pieces of real estate as indicated a bove. At this point there are no particular tax consequences resulting from the equitable distribution that were brought to th e attention of the Court. The grounds for the divorce and other co nsiderations considered by the Court were mentioned in the above determination of the equitable distribution award. When husband objected to the trial court’s op inion letter, the trial court ruled that it would not “reiterate its earlier op inion letter other than to say it considered all of the points raised by both counsel in its equitable distri bution award as required” by Code § 20-107.3 and that it “weighed many factors, including loans, non-monetary contributions of both parties including caring for the house, renovations to the property, ca ring for the children, and other duties performed by both parties.” As to wife’s request for attorney’s fees, the trial court ruled as follows: Mrs. Rinaldi has asked for attorney ’s fees to whic h [husband] has not responded. Mrs. Rinaldi’s income is considerably more than the husband’s, and the parties’ disagreements have increased the attorneys’ fees on both sides. C onsidering all of the factors, the Court believes Mr. Rinaldi should pay Mrs. Rinaldi the amount of $5,000 in attorney’s fees.

II. ANALYSIS A. EQUITABLE DISTRIBUTION On appeal, we consider the evidence in the light most favorable to wife, the party who prevailed in the trial court. Wilson v. Wilson , 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 (1991). “The judgment of a trial court sitt ing in equity, when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Peple v. Peple , 5 Va. App. 414, 423, 364 S.E.2d 232, 237 (1988).- 7 - 1. Calculation of the Mari tal Share of Real Estate Husband contends the trial court erred in applying the Brandenburg formula, see Hart , 27 Va. App. at 64-65, 497 S.E.2d at 505 (citing Brandenburg v. Brandenburg , 617 S.W.2d 871 (Ky. Ct. App. 1981)), to divide the marital equi ty in the residence on Floyd Avenue while simultaneously using the method applied in Keeling , 47 Va. App. at 490-93, 624 S.E.2d at 689-91, to calculate the marital interest in the par cel of land on the river th at the parties acquired during the marriage as tenants by the entireties. He argues that the court’s application of Keeling

was erroneous and that it should be required to apply Brandenburg to the calculations for both properties. We hold the tr ial court’s application of Keeling to calculate the separate and marital shares of the hybrid riverfront pr operty achieved an equitable result and, therefore, was not error. “We have not adopted an exclusive method fo r determining how to apportion the increase in value [of a hybrid asset as between mar ital and] retraced se parate property.” Martin v. Martin , 27 Va. App. 745, 753, 501 S.E.2d 450, 454 (2006) (en banc). “In Hart v. Hart , 27 Va. App. 46, 65-66, 497 S.E.2d 496, 505 (1998), we approved the ‘ Brandenburg formula’ as one method for ascertaining the value of the separate and marital component s of hybrid property in relation to the original contributions,” but we have em phasized that “other methods may be equally acceptable.” Id. ; see Hart , 27 Va. App. at 66 n.4, 497 S.E.2d at 505 n.4 (“By approving [the Brandenburg ] formula, we do not intend to imply that this is the only ac ceptable method of tracing and determining the mar ital and separate property intere sts of hybrid property.”). We

held in Keeling that where (1) hybrid property is obtained by means of both (a) a significant down payment of separate propert y and (b) a significant joint mortgage; (2) the equity in the property increases significantly due primarily to market forces; and (3) no evidence establishes that either the separate down payment or the marital loan contributed disproportionately to the couple’s ability to acquire and hold the property, a court does not abuse its discretion in concluding that a- 8 - strict application of the Brandenburg formula would yield an unfair result. Keeling , 47 Va. App. at 491, 624 S.E.2d at 690. Under th ese circumstances, we held, a strict application of the Brandenburg formula may not adequately take into account the extent to which the parties’ obligation on the loan allowed them to hold the property in order to benefit from the passive increase in equity. 1 Id. The alternate method of calculation we approved in Keeling

involved (1) compar[ing] husband’s separate contributions . . . to the original purchase price . . . , yiel ding a [percentage] figure of . . . separate property contributed, and (2) giv[ing] husband a share of the [total] equity in the same per centage as his co ntribution to the purchase price, . . . for a total sepa rate share . . . including a return of his separate propert y and earnings thereon.

Id. at 488, 624 S.E.2d at 688. In the Rinaldis’ case, husb and made a down payment of 24.5 % of the original purchase price of the riverfront prope rty, about the same percenta ge as the down payment in Keeling , and the property, excluding the additi on of the dock, appreciated primar ily due to market forces by more than 130%, a percentage increase even greater than the percentage involved in Keeling

. Further, the evidence did not compel a finding that “the separate down payment . . . contributed disproportionately to the couple’s ability to acquire and hold the property.” Id. at 491, 624

1 Keeling involved a husband’s contribution of the entire down payment and various expenses associated with refinancing the home, in an amount equal to 27.5% of the purchase price of the property, and the par ties were jointly liable on a mortgage for the remainder of the purchase price for the duration of their seven-ye ar marriage. 47 Va. A pp. at 488, 624 S.E.2d at 688-89. The parties made mortgage payments but also engaged in furthe r borrowing against the property and experienced a net decrease in th eir mortgage principal balance of only $9,000. Id. at 487, 624 S.E.2d at 688. The overall value of the property more than doubled during the marriage, increasing in value by 109%. Id. at 489, 624 S.E.2d at 689. We concluded that a strict application of Brandenburg , which would have taken into consideration only the amount by which their mortgage payments re duced the principal loan balance and the equity attributable to that amount, would have been unfair and justified the trial court’s decision to use an alternate method. Id. at 491, 624 S.E.2d at 690.- 9 - S.E.2d at 690. Thus, the trial court did not abuse its discretion in concluding that the approach

used in Keeling was an appropriate method for calculating the separate and mar ital shares of the riverfront property. The approach used by th e trial court achieved an equitable result and, therefore, did not constitute erro r. Whether application of the Brandenburg formula would also have achieved an equitable resu lt is simply not dispositive. The trial court’s application of the Keeling approach to calculate th e marital equity in the riverfront property while using Brandenburg to calculate the equity in the Floyd Avenue property

also did not constitute an abuse of discretion because, again, the result was equitable. The Floyd Avenue property was originally husband’s separa te property, which husband had acquired in his own name and made mortgage payments on for ei ght years prior to the parties’ marriage, and wife made no claim that, absent her assistance, husband would have been unable to pay the mortgage on the Floyd Avenue property. As to th e riverfront property, by contrast, the parties purchased it jointly during the marriage, and although husband made a down payment of approximately 25% from his separate funds, the parties were jointly liable on the mortgage. Further, wife averred and the evidence suppor ted a finding that husband’s income and other obligations at that time were such that the part ies’ joint obligation on the loan was necessary for them to obtain and make regular payments on th e loan. Because the tr ial court’s disparate treatment of the two properties achieved an equitable result, the trial court’s decision to take such an approach did not constitute an abuse of discretion. We also conclude the trial court was not requ ired to give husband credit for the additional sums he contributed to improvements on the prop erty. Under settled pr inciples, “It is the value that improvements add to the property, not their co st, that is the proper c onsideration because the court is apportioning the equity in the hybrid property when it tr aces the sources of contributions to that property.” Hart , 27 Va. App. at 66, 497 S.E.2d at 505 (fir st emphasis added). Further, all- 10 - property acquired during the marriage is presumptiv ely marital, and the party claiming a separate interest in the hybrid property from those im provements bears the burden of proving their value

to the satisfaction of the trial court. E.g. Rhabaran v. Rhabaran , 26 Va. App. 195, 208-09, 494 S.E.2d 135, 141 (1997). Here, husband offered evidence of the cost of the pilings used in the construction of the dock, $5,950, and the amount by which the completed dock added to the value of the property, $20,000, but he failed to offer evidence as to how much of the $20,000 increase in equity was attributable to the pilings. Sim ilarly, he offered evidence that in stallation of the septic system cost $3,450 and his opinion that it increas ed the value of the property by $12,000, 2 but the trial court was not required to accept this testimony of value as credible. Further, wife’s testimony, viewed in the light most favorable to wife, also did not establish the extent to which the addition of the septic system added to the value of the property.

Husband contends next that the trial court erred in accepting wife’s calculations applying the approach used in Keeling . Wife contended the court sh ould take the $105,000 purchase price of the property and add to it the amount of increase in equity in the property created by the addition of the dock, $20,000, and use the sum of the two figures, $125,000, to determine the percentage share of husband’s separate down payment. These figures yield a separate percentage

2 Wife contends husband failed to preserve for appeal his claim for a credit for the cost of installing the septic tank. We note husband’s comments on his exhibit at trial showing his calculation of the division of th e equity in the riverfront pr operty included a request for “adjustment for Husbands [sic] contribution to property paid by separate funds. Septic: $3,450.00, Dock $5,950, and real estate taxes paid of $887.68 plus credit for reduction in student loans of Wife.” Husband, in his post-trial brie f, asked for credit of “at least $5,900.00 for the out of pocket costs paid by Husband from his sepa rate funds for improvements.” Finally, in endorsing the final order, he objec ted “for all the reasons stated orally and in the memorandum filed herein, and as shown by the evidence at trial , particularly as to th e computations of the respective shares in the marital real estate and the specific methods of computation.” (Emphasis added.) These objections were sufficiently specific to put the trial court on notice of husband’s objection regarding the septic tank.- 11 - share for husband of 20.6% rath er than the 24.5% yielded w ithout including the $20,000 of equity attributable to the dock. We agree that the court’s inclus ion of the $20,000 in the purchase price did not precisely follow the approach used in Keeling because Keeling involved only passive appreciation and compared Mr. Kee ling’s separate contribu tion toward the purchase price of the property to the tota l purchase price of the property. However, as we have said repeatedly, a court is not required to apply any particular formula to trace the separate and marital property interests and to calculate the earnings on those resp ective interests as long as it reaches an equitable result. See, e.g. , Martin , 27 Va. App. at 753, 501 S.E.2d at 454; Hart , 27 Va. App. at 66 n.4, 497 S.E.2d at 505 n.4. Here, the evidence supports a finding that th e trial court’s classification of the various components of the riverfront property were equitable and, thus, were not an abuse of discretion. Under a strict application of Keeling , husband’s separate interest in the riverfront property would have been $45,170.65 rather than the $42,100.22 calculated by the trial court. 3 However, nothing in our case law holds that a spouse who retraces separate funds used to make a down

3 As discussed supra in the text, a proper applicat ion of the approach used in Keeling compares husband’s initial separate contri bution of $25,750 to the $105,0 00 purchase price of the riverfront property, indicating husband’s se parate share of the pr operty at the time of purchase was $25,750/$105,000, or 24.5%. U nder a strict application of Keeling , the court would then use this figure to ca lculate husband’s separate share of the equity in the property that resulted from passive appreciation. Given tota l equity in the property of $204,370, the amount of equity resulting from passive appreciation was $204,370 minus the equity attributable to the dock, $20,000, for total passive equity of $184,370. Multiplying this figure by husband’s 24.5% share would yield a separate interest for husband of $45,170.65, rather than the figure of $42,100.22 used by the trial court. Using the total equity figure of $204,370 less husband’s separate share of $45,170.65 (representing the return of his initial down paym ent and the passive appr eciation thereon in an amount equal to the appreciation provided on th e marital share) yields marital equity of $159,199.35, of which husband’s 40% share woul d be $63,679.74. Thus, under a strict application of Keeling that also accounts for equity resulting from the addition of the dock, husband’s separate share of $45,170.65 plus his marital share of $63,679.74 would equal a total interest for husband in the ri verfront property of $108,850.39. The trial court actually awarded husband the sum of $107,008.13, only $1,842.26 less th an the amount yielded by a strict application of Keeling

.- 12 - payment on property held by the spouses jointly must be awarded appreci ation thereon in the exact percentage in which the trial court aw ards appreciation on the marital share. In Keeling , we approved an approach that calculated appr eciation equally where “no evidence establishe[d] that either the separate down payment or the marital loan contributed di sproportionately to the couple’s ability to acquire and hold the propert y.” 47 Va. App. at 491, 624 S.E.2d at 690. The

facts in the Rinaldis’ ca se, by contrast, support a finding that wife’s significantly higher income, which was marital property, contributed disproportionately to the parties’ ability to hold the property long enough to benefit from market appr eciation. This factual difference justified the trial court’s awarding what amounted to a slightly hi gher rate of return on the marital share of the riverfront property than on hus band’s separate share. Thus , we conclude the court’s classification of the parties’ respective interest s in the riverfront property did not constitute an

abuse of discretion. 2. Percentage Division of the Marital Share of Real Estate “Fashioning an equitable distri bution award lies within the sound discretion of the trial judge . . . .” Srinivasan v. Srinivasan , 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). Although the trial court must cons ider all factors set out in C ode § 20-107.3(E), it “need not quantify or elaborate exactly what weight was given to each of the factors” as long as its “findings . . . [are] base d upon credible evidence.” Taylor v. Taylor , 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). “Virginia law does not establ ish a presumption of equal distribution of

marital assets. It is within the discretion of th e court to make an equal division or to make a substantially disparate division of assets as the factors outlined in Code § 20-107.3(E) require.”

Matthews v. Matthews , 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998) (citations omitted). “A circuit court, therefor e, need not start off at the 50-yard li ne and then look to the discretionary factors of Code § 20-107.3(E) to move th e ball marker up or down the sidelines.” Robbins v.- 13 - Robbins , 48 Va. App. 466, 480, 632 S.E.2d 615, 622 (2006) (a ffirming circuit court’s use of “a 65/35 division of assets”). Those factors for consideration by the court include “‘[t]he contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of [the] marital property of the parties.’ . . . . [B]oth affirmative and negative monetary contributions to the marital partnership are to be considered.” Barker v. Barker , 27 Va. App. 519, 537, 500 S.E.2d 240, 248 (1998). Thus, “where marital funds are used to pay the separate debts of one of the parties, a court may properly consider that fact as a negative monetary contribution to the marital property.” Id. at 537, 500 S.E.2d at 249. However, nothi ng in the equitable distribution statute or our case law entitles a spouse to a dollar-for-d ollar credit for payment of the other spouse’s separate debt with marital funds. Id. at 539, 500 S.E.2d at 250. Although wife used marital funds to pay her student loan debt during the ma rriage, the evidence suppor ted a finding that her earning capacity during the marriag e was significant due to her law degree and, thus, that

husband received a benefit associated with payment of wife’s law school loan debt. Furthermore, the evidence as a whole, vi ewed in the light most favorable to wife, supports the trial court’s conclusi on to award wife 60% of the mar ital share of the real estate. The evidence, viewed in the light most favorable to wife, supports a finding that she made larger monetary and non-monetary contributions throughout most of the cour se of the parties’ marriage. Wife worked as an attorney throughout the pa rties’ marriage; husband, trained as a laboratory technician, operated his own construction business during most of the parties’ marriage. Although wife agreed to husband’s plan to stop wo rking as a laboratory technician in order to develop his construction business, wife testifie d that husband failed to work diligently at his construction job, choosing instead to sleep late and indulge his marijuana habit. The evidence supported a finding that husband earned only about $200,000 during the course of the parties’- 14 - marriage and that wife’s income of about $500,000 during the same period paid the mortgages on the parties’ two properties and mo st of their bills other than t hose for groceries and gasoline. Wife testified further that although husband was a good father to their two sons when he was present, he slept late into the morning leaving her to care for the childre n during that time, and that he was not present for a period of time ever y evening, as well, because wife would not let him smoke marijuana in the presence of the chil dren. Wife testified that husband’s marijuana addiction, his refusal to obtain treatment for it, and its negative impact on his monetary and non-monetary contributions to the family supported her request for an award of greater than fifty percent of the marital equity in the two properties. The trial court expressly stated it considered all Code § 20-107.3(E) factors, incl uding wife’s use of marital funds to pay her student loans, in making this disposition of the marital property. We hold the evidence, viewed in the light most favorable to wife, supports this award.

B. ATTORNEYS’ FEES

1. In the Trial Court Whether to award attorney’s f ees in a divorce matter is left to the sound discretion of the

trial court. See, e.g. , Lightburn v. Lightburn , 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996). “Given the unique equities of each case, our appellate review steers clear of inflexible rules and

focuses instead on ‘reasonableness under all the circumstances.’” Kane v. Szymczak , 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003) (quoting Joynes v. Payne , 36 Va. App. 401, 429, 551 S.E.2d 10, 24 (2001)). Factors to be considered may include a party’s ability to pay a fee,

Cirrito v. Cirrito , 44 Va. App. 287, 299-300, 605 S.E.2d 268, 274-75 (2004), the party’s degree of fault in bringing about th e dissolution of the marriage, Poliquin v. Poliquin , 12 Va. App. 676, 682, 406 S.E.2d 401, 405 (1991), and whether the party unnecessarily increa sed litigation costs- 15 - through unjustified conduct calculated to delay resolution of the proceedings, Northcutt v.

Northcutt , 39 Va. App. 192, 200-01, 571 S.E.2d 912, 916 (2002). Here, the record compels the conclusion that the court did not abuse its discretion in ordering husband to pay $5,000 toward wife’s attorney ’s fees and costs, which totaled more than twice that amount. Although wife earned more than husband, the evidence supported a finding that husband bore a greater degree of fault in br inging about the dissolutio n of the marriage and that he engaged in repeated beha vior that delayed resolution of the proceedings below, including actions necessitating wife’s filing of multiple motions to compel and motions for issuance of rules to show cause, thereby unnece ssarily increasing wife’s attorney’s fees. On these facts, the award of attorney’s fees did not constitute an abuse of discretion. 2. On Appeal Wife seeks an award of attorney’s fees incurred on appeal. We decline that request. See O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Although we have held husband’s appeal to be without merit, no prior case law addressed th e issue of applying the Brandenburg formula to one parcel of propert y while applying the rationale of Keeling to

another. Estate of Hackler v. Hackler , 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004) (declining to award fees to an appellee where the appeal “addressed appropriate and substantial issues”). Further, the record shows wife earned substantially mo re than husband over the course of the parties’ marriage and continues to have a greater earning cap acity based on her law degree. Thus, we see no basis fo r an award of fees on appeal.

III. For these reasons, we hold the trial court’s classification and divi sion of the parties’ property and the earnings thereon was supported by the evidence. We hold the trial court did not- 16 - err in awarding wife a portion of he r attorney’s fees, and we declin e to make an award of fees on appeal. Thus, we affirm the trial court’s equitable distribution award.

Affirmed.