COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, AtLee and Retired Judge Felton

KATHLEEN ANN McKENNA 

 MEMORANDUM OPINION 

v. Record No. 1780-15-2 PER CURIAM 

 JULY 26, 2016 

GEORGE F. HARPLE 

 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Phillip L. Hairston, Judge 

 (Michael L. Donner, Sr.; Setliff & Holland, P.C., on brief), for 

appellant. 

 (Dawn B. DeBoer; Law Offices of Deanna D. Cook, PC, on brief), 

for appellee. 

 

 Retired Judge Felton took part in the consideration of this case by designation pursuant 

to Code § 17.1-400(D). 

 

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

 Kathleen Ann McKenna (wife) appeals a final decree of divorce. Wife argues that the trial 

court erred by (1) imputing $72,000 per year as income to wife for spousal support purposes; 

(2) awarding none of George F. Harple’s (husband) retirement funds to wife; and (3) awarding 

husband his attorney’s fees. Upon reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. 

See Rule 5A:27. 

BACKGROUND 

 “When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted). 

UNPUBLISHED 
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 Husband and wife married on June 20, 1975 and separated on April 6, 2013. On May 15, 

2013, wife filed a complaint for divorce. Husband filed an answer and counterclaim. On August 

12, 2015, the parties appeared before the trial court for a hearing on equitable distribution, 

spousal support, and attorney’s fees and costs. After hearing the parties’ evidence and argument, 

the trial court took the matter under advisement. 

 On August 26, 2015, the trial court issued its letter opinion. The trial court considered 

the factors in Code § 20-107.3(E) and held that all of the parties’ marital real property, with the 

exception of the Semmes Avenue property that was awarded to husband, was to be sold. The 

proceeds of the sale of the marital real property were to pay the parties’ marital debt. After the 

debts were paid, then the remaining proceeds were to be divided equally between the parties. 

The trial court further held that husband would retain all of his retirement. After considering the 

factors in Code § 20-107.1(E), the trial court determined that neither party was entitled to 

spousal support. Lastly, the trial court awarded husband his attorney’s fees and costs. 

 On October 8, 2015, the trial court entered a final decree of divorce, which incorporated 

the trial court’s August 26, 2015 letter opinion. This appeal followed. 

ANALYSIS 

Spousal support 

 Wife argues that the trial court erred by imputing $72,000 per year as income to her for 

spousal support purposes because she earned that income twelve years before the trial. 

 Husband and wife worked throughout the marriage. At the time of the trial, wife was 

working as a teacher in Westmoreland County Public Schools and earned $50,776 per year. 

Husband was working as a teacher in Richmond City Public Schools and earned $63,000 per 

year; however, he was eligible to retire at the time of the trial. Prior to her current teaching job, 
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wife was last employed as a freelance writer. Wife’s income as a freelance writer varied, but she 

stated that she earned “in the 60s and 70s,” and as much as $72,000 in 2003. 

 “In reviewing a spousal support award, we are mindful that the trial court has broad 

discretion in awarding and fixing the amount of spousal support. Accordingly, our review is 

limited to determining whether the trial court clearly abused its discretion.” West v. West, 53 

Va. App. 125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679, 

607 S.E.2d 126, 128 (2005)). 

 “A court may under appropriate circumstances impute income to a party seeking spousal 

support.” McKee v. McKee, 52 Va. App. 482, 489, 664 S.E.2d 505, 509 (2008) (en banc) (quoting 

Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990)). “The decision to 

impute income is within the sound discretion of the trial court and its refusal to impute income will 

not be reversed unless plainly wrong or unsupported by the evidence.” Id. (quoting Blackburn v. 

Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999)). 

 Code § 20-107.1(E) lists thirteen factors for a trial court to consider when determining 

spousal support. The trial court reviewed each factor in its letter opinion prior to deciding that 

neither party would receive an award of spousal support. 

 Wife testified that until March 2013, she worked as a freelance writer, but quit writing in 

order to have a more steady and dependable income. She explained that as a writer, “[y]ou either 

have a lot of work, or you have no work.” However, husband presented evidence that as a 

freelance writer, wife earned more than she does as a teacher, and she earned more than he did. 

Wife stated that since becoming a public school teacher in Westmoreland County, she received 

new offers for freelance writing jobs, but did not accept them. 

 The trial court found that wife voluntarily left her job as a freelance writer for 

“lower-paying opportunities.” In addition, the trial court held that wife had a “substantially 
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higher earning capacity” as a freelance writer than as a teacher. Although wife testified that she 

“tried to contact” employers in the private industry but could not find a job, the trial court stated 

that it was “not satisfied that [wife] would be unable to return to her previous employment.” 

Contrary to wife’s arguments, the trial court did not abuse its discretion by imputing income to 

her. The evidence supports the trial court’s findings that wife was capable of earning more 

money and had voluntarily chosen to stop working as a freelance writer. 

 Wife further contends that because the trial court erred in imputing income to her, it also 

erred in denying her spousal support. However, the trial court examined all of the factors in 

Code § 20-107.1(E) before it decided to deny spousal support to both parties. It found that wife 

had “substantial separate property.” It also ordered the marital real property, with the exception 

of the Semmes Avenue property, was to be sold and the proceeds were to pay the marital debt. 

The trial court found that “both parties’ need for any spousal support would be greatly 

diminished” because of the provisions in the equitable distribution award. In addition to the 

equitable distribution award, the trial court considered that wife “voluntarily withdrew funds 

from her retirement account prematurely, over the objection of [husband].” 

 Considering the totality of the circumstances, the trial court did not err in denying wife’s 

request for spousal support.

Equitable distribution 

 Wife argues that the trial court erred in its equitable distribution award because it did not 

award her one-half of husband’s retirement. 

 On appeal, “decisions concerning equitable distribution rest within the sound discretion 

of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the 

evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing 

Srinivasan, 10 Va. App. at 732, 396 S.E.2d at 678). 
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 From 1986 until 1998, with a break between 1988 and 1989, wife earned retirement with 

the Virginia Retirement System (VRS) as a public school teacher.1 After wife left her teaching 

position in Richmond City Public Schools, she cashed out her VRS retirement and received 

$28,166.65. She deposited the money into the retirement fund at the new company where she 

was working. When she left the company, she rolled the funds over into an Individual 

Retirement Account (IRA). As of August 2012, the IRA was valued at $43,812. Wife 

subsequently withdrew the funds from the IRA and deposited them into her checking account. 

She testified that she used all of the funds to pay bills. 

 Husband testified that he did not want wife to leave her employment where she was 

earning VRS. He was unaware of wife’s withdrawal of the retirement funds to pay bills. 

 The trial court considered the factors in Code § 20-107.3(E), and with respect to 

husband’s retirement, it denied wife’s request for fifty percent of the marital share. The trial 

court found that over husband’s objection, wife “prematurely withdrew funds from her own 

retirement fund.” The trial court explained, “But for [wife] withdrawing her retirement funds, 

[husband] would be eligible to likewise request a 50% share of her retirement benefits.” The 

trial court imputed wife’s retirement funds to her and the claim that husband would have had to 

them, and therefore, concluded that she was not entitled to any of husband’s retirement funds. 

 The evidence proved that wife withdrew and spent her retirement funds, while husband 

maintained his retirement funds with VRS. Considering the totality of the evidence, the trial 

court did not err in denying wife’s request for fifty percent of the marital share of husband’s 

retirement.

 1

 From September 1986 until June 1988, wife worked as a teacher in Powhatan County 

Public Schools. From September 1989 until September 1998, wife worked as a teacher in 

Richmond City Public Schools. 
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Attorney’s fees 

Wife argues that the trial court erred in awarding husband $46,191.50 for his attorney’s 

fees. She contends the trial court erred in considering her previous filings in the juvenile and 

domestic relations district court, which were not connected to the divorce. She also asserts that 

the trial court erroneously found that wife refused to work with husband in reaching a fair and 

reasonable settlement and that such finding was an improper basis for an attorney’s fee award. 

“[A]n 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.” Richardson v. Richardson, 30 

Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333, 

357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness 

under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272, 

277, 338 S.E.2d 159, 162 (1985). 

 The trial court heard evidence that wife sought two protective orders in two juvenile and 

domestic relations district courts. In 2013, wife sought her first protective order in Richmond, 

but was denied a permanent protective order. Husband was represented by different counsel at 

the time, so any fees incurred for that proceeding were not presented to the trial court. In 2014, 

wife sought another protective order in Westmoreland County, which was dismissed. Evidence 

also was presented that wife refused to cooperate with husband in selling some of their real estate 

and, during their separation, she refused to provide her tax information to the accountant in order 

for him to complete their tax returns. In addition, husband was forced to file a motion to compel 

because of wife’s incomplete discovery responses. 

 In determining whether to award attorney’s fees, the trial court considered the parties’ 

conduct. The trial court considered the fact that wife sought two protective orders that were 

ultimately dismissed. The trial court found that husband was more cooperative than wife. It 
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stated that husband had to incur “significant attorney’s fees, due in significant part to [wife’s] 

conduct, and her continued refusal to work towards a fair and reasonable resolution of this case.” 

As a result, the trial court ordered wife to pay husband’s “legal fees related to this divorce 

proceeding.” 

 Based on the record, the trial court did not err in ordering wife to pay $46,191.50 for 

husband’s legal fees. The record indicates that wife was not cooperative throughout the process, 

which the trial court could consider in determining whether to award attorney’s fees. 

Furthermore, the trial court stated that if the parties did not agree on the amount of fees, then 

they should request a hearing. Neither party sought a hearing for the court to hear evidence and 

determine the amount of the award. 

 Husband asks this Court to award him attorney’s fees incurred on appeal. See 

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration 

of the record before us, we deny his request for an award of attorney’s fees he incurred on 

appeal. 

CONCLUSION 

 For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27. 

Affirmed.