COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, At Lee 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.; Setli ff & Holland, P.C. , on brief), for appellant. (Dawn B. DeBoer; La w Offices of Deanna D. Cook, PC, on brief), for appellee.

 Retired Judge Felton took part in the consider ation of this case by designation pursuant to Code § 17.1-400(D).

 Pursuant to Code § 17.1-413, this opin ion is not designa ted for publication. Kathleen Ann McKenna (wife) ap peals a final decree of divorce. Wife argues that the trial court erred by (1) imputi ng $72,000 per year as income to wife for spousal support purposes; (2) awarding none of George F. Harple’s (hus band) retirement funds to wife; and (3) awarding husband his attorney’s fees. Upon reviewing the reco rd and briefs of the part ies, we conclude that this appeal is without merit. Accordingly, we summarily affirm th e decision of the trial court. See Rule 5A:27. BACKGROUND “When reviewing a trial court’s decision on a ppeal, 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UNPUBLISHED- 2 - Husband and wife married on June 20, 1975 and separated on April 6, 2013.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 partie s’ 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 marita l real property were to pay the pa rties’ 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 reta in all of his retirement. After considering the factors in Code § 20-107.1(E), the trial court de termined that neither party was entitled to spousal support. Lastly, the trial court awar ded 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 Count y Public Schools and earned $50,776 per year. Husband was working as a teacher in Richm ond 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,- 3 - wife was last employed as a freelance writer. Wi fe’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 ar e 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 cl early 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 circumstance s 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 with in the sound discretion of the trial court and its refu sal to impute income will not be reversed unless plainly wrong or unsupporte d 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 consid er when determining spousal support. The trial court reviewed each f actor 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.” Ho wever, 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 voluntaril y left her job as a freelance writer for “lower-paying opportunities.” In addition, the tr ial court held that wife had a “substantially- 4 - higher earning capacity” as a freelan ce writer than as a teacher. Although wife testified that she “tried to contact” employers in the private industr y 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 di d not abuse its discretion by imputing income to her. The evidence supports the trial court’s fi ndings 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 spousa l 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 a nd the proceeds were to pay the marital debt. The trial court found that “both parties’ n eed for any spousal support would be greatly diminished” because of the provisions in the equi table distribution award. In addition to the equitable distribution award, the trial court considered that wife “voluntarily withdrew funds from her retirement account prematur ely, over the objecti on 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 with in 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).- 5 - From 1986 until 1998, with a break between 19 88 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 reti rement 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 withdr awal 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] withdrawi ng 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 he r and the claim that husband would have had to them, and therefore, concluded that she was not entitled to any of hus band’s retirement funds. The evidence proved that wife withdrew and spent her retirement funds, while husband maintained his retirement funds with VRS. Co nsidering 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 wo rked as a teacher in Powhatan County Public Schools. From September 1989 until September 1998, wife worked as a teacher in Richmond City Public Schools.- 6 - 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 refuse d 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 abus e of discretion.” Rich ardson 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, wi fe sought her first protective order in Richmond, but was denied a permanent protective order. Hu sband 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 Westmo reland County, which was dismissed. Evidence also was presented that wife refu sed to cooperate with husband in se lling some of their real estate and, during their separation, she refu sed to provide her tax informati on to the accountant in order for him to complete their tax returns. In additi on, 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 consider ed the fact that wife sought tw o protective orders that were ultimately dismissed. The trial court found that husband was more cooperative than wife. It- 7 - 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 pa y 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 c ooperative throughout the process, which the trial court could consider in dete rmining whether to award attorney’s fees. Furthermore, the trial court stat ed that if the partie s did not agree on the amount of fees, then they should request a hearing. Ne ither party sought a hearing for the court to hear evidence and determine the amount of the award. Husband asks this Court to award him a ttorney’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 fo r 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.