COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

PATRICIA A. SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 1593-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 3, 1998 

WALTER H. WARME, JR. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Dennis J. Smith, Judge 

 Patricia A. Smith, pro se. 

 Robert C. Adams (Tydings, Bryan & Adams, on 

brief), for appellee. 

 Patricia A. Smith (wife) appeals the decision of the trial 

court in her divorce from Walter H. Warme, Jr. (husband). She 

alleges on appeal that the court erred in classifying, valuing, 

and distributing the marital property, and in refusing to award 

her spousal support. We affirm in part, and reverse in part. 

 The parties were married on May 29, 1987, and had no 

children together. On April 1, 1996, husband filed a bill of 

complaint for divorce against wife. Husband is a recovering 

alcoholic who contributed significantly to the marriage until the 

final year of the marriage, when his alcoholism grew worse. 

Husband was employed by the Navy, where he accumulated annual and 

sick leave in the course of his job. He also contributed to the 

Thrift Savings Plan, a voluntary contribution retirement plan 

 

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

designated for publication. 
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offered by the federal government. At trial, husband testified 

that he drove a 1989 Mazda RX7 worth $2,000. 

 Wife is an attorney with an LL.M. in international law who 

opened her own real estate practice in 1985 after working as 

government and in-house counsel. Wife has chronic cervical 

strain, and is experiencing a period of depression which renders 

concentration difficult. Wife's income from her practice has 

declined from $45,000 in 1985 to roughly $7,100 in 1996. 

 At trial, husband introduced evidence from a real estate 

appraiser that, in June 1995, he had appraised the marital home 

at $224,000. The appraiser testified, however, that after a 

comparable home across the street from the parties' home sold for 

$190,000, he adjusted his valuation to $195,000. Wife testified 

that the marital home was worth $230,000. Husband also 

introduced evidence from a vocational rehabilitation counselor, 

Stephen Sheldin, that wife was capable of earning $51,000 to 

$67,000 per year as a government attorney. Wife disputed this 

conclusion, and testified that she has not been able to find a 

better-paying position. 

 I. 

 Classification 

 Wife first contends that the court failed to properly 

classify husband's Thrift Savings Plan (TSP) and accumulated 

annual leave as marital property. As the first step in the 

equitable distribution process, a court must classify the 
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parties' property as separate, marital, or part separate and part 

marital. Lightburn v. Lightburn, 22 Va. App. 612, 616, 472 

S.E.2d 281, 283 (1996) (citing Gottlieb v. Gottlieb, 19 Va. App. 

77, 93, 448 S.E.2d 666, 676 (1994)). We will not disturb the 

court's classification of property unless the court's decision 

shows an abuse of discretion or is unsupported by the evidence. 

Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625 (1993). 

 After examining the relevant factors under Code 

§ 20-107.3(E), the court stated: 

 The husband will keep his annual leave 

and sick leave. The wife will keep her 

office furniture. The wife will keep her 

SEP. The husband will also keep his TSP. 

Each will keep their own car. The Optelecom 

will be split equally. The wife will keep 

the Oracle stock, as it is separate property. 

 I believe that deals with all the 

marital property. Is there any marital 

property that I've missed? 

The court's characterization of the property it was distributing 

as marital, as well as its segregation of the Oracle stock as 

separate property, makes clear that it had performed the required 

classification of the TSP and accumulated leave. Wife's argument 

that the court erred in classifying the TSP and accumulated leave 

as separate is, therefore, meritless. 

 II. 

 Valuation 

 In a one-paragraph argument, wife contends that the court 

erred in valuing the parties' 1989 Mazda. The court found that 

the Mazda had a value of $2,000. We will not disturb the court's 
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finding unless it is plainly wrong or without evidence to support 

it. Gamble v. Gamble, 14 Va. App. 558, 563, 421 S.E.2d 635, 638 

(1992) (citing Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 

383 S.E.2d 28, 30 (1989)). 

 The parties owned a 1989 Mazda RX7 with approximately 

130,000 miles on it. At the time of trial, the Mazda had body 

damage "on the right side, right front, and right door and right 

rear quarter panel" dating from the summer of 1994. Husband 

opined that the fair market value of the car was $2,000. Wife's 

only contrary evidence was that the parties had originally paid 

$13,000 for the Mazda. The court may, in its discretion, 

determine the value of property on the basis of lay testimony. 

Stratton v. Stratton, 16 Va. App. 878, 883, 433 S.E.2d 920, 923 

(1993). Contrary to wife's argument, the evidence supports the 

court's finding that the Mazda had a value of $2,000. 

 III. 

Equitable Distribution Award 

 Wife argues that the trial court erred in determining the 

equitable distribution award. The court found that the parties 

made relatively equal non-monetary contributions to the marriage 

during the early years of the marriage, but that husband's 

contributions declined as his alcoholism advanced. The court 

allocated the marital residence to husband, provided he elected 

to pay $10,000 to wife within fourteen days. The court ruled 

that if husband did not elect to purchase the house from wife, 
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wife could purchase the house from husband under the same terms; 

if neither party elected to purchase the house, the house would 

be sold and the proceeds divided between the parties. 

 On appeal, we view the evidence in the light most favorable 

to husband, the party prevailing below. Wagner v. Wagner, 16 Va. 

App. 529, 532, 431 S.E.2d 77, 79 (1993). In fashioning an 

equitable distribution award, the trial court may determine what 

weight to assign to each of the statutory factors, as long as it 

considers each of the factors. Booth v. Booth, 7 Va. App. 22, 

28, 371 S.E.2d 569, 573 (1988). A court's equitable distribution 

award rests within the sound discretion of the trial court and 

will not be reversed unless plainly wrong or without evidence to 

support it. McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 

S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan, 10 Va. 

App. 728, 732, 396 S.E.2d 675, 678 (1990)). 

 Wife first argues that the court erred in finding that the 

parties' non-monetary contributions to the marriage were equal; 

she argues that the evidence shows that husband's contributions 

declined as his alcoholism advanced. The court's findings, 

however, were precisely in line with wife's argument. The court 

found, "[i]n the early years the parties had relatively equal 

non-monetary contributions to the marriage. In later years the 

husband's non-monetary contributions reduced, as a result of his 

alcoholism, and admittedly he participated less in household 

activities at that point." 
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 This finding is supported by the evidence. Husband 

testified that both parties went grocery shopping, cooked, washed 

dishes, and painted the house. Husband mowed the lawn while wife 

did the gardening. Husband did the laundry and took out the 

trash. Husband introduced an exhibit which showed the relative 

non-monetary contributions of the parties. Husband admitted, 

however, that he had not contributed as much to the marriage in 

its final year as he had done previously. 

 Wife also contends that no evidence supports the court's 

decision to allow husband to buy the house from her for $10,000. 

 The court found that the house was worth $224,000; the record 

shows, and the parties agree, that the house was encumbered by 

two trusts for a total of $185,473.96, leaving the equity in the 

house at $38,526.04. Although both parties assume on the briefs 

that the court subtracted closing costs of approximately eight 

percent to arrive at a net equity of approximately $20,000 as the 

basis of its $10,000 buyout allocation, the court did not explain 

that it was subtracting closing costs. 

 There is no evidence in the record to support a reduction of 

roughly $18,500 in the equity in the house. Although husband 

referred to an exhibit showing a six percent real estate 

commission and one point as potential debt against the property 

in his opening statement, this exhibit was never introduced into 

evidence. The record contains no evidence of closing costs, or 

any other factor, which supports the trial court's decision to 
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allow husband to buy wife's roughly $19,250 equity in the marital 

home for $10,000. We, therefore, reverse the decision of the 

trial court on this issue, and remand for further proceedings. 

See Lightburn, 22 Va. App. at 619-20, 472 S.E.2d at 284-85. 
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 IV. 

 Expert Testimony 

 Wife contends that the court erred in allowing an expert 

witness to testify on her earning capacity because he was not 

qualified to testify.1

 Over wife's objection, the court allowed 

husband's expert witness, Stephen Sheldin, to offer his opinion 

that wife had an earning capacity of $51,000-$67,000 per year. 

 "Whether a particular witness is qualified to testify as an 

expert is 'largely a matter in the discretion of the trial court, 

and its rulings allowing a witness to testify will not be 

disturbed unless it clearly appears that [the expert] was not 

qualified.'" Wileman v. Commonwealth, 24 Va. App. 642, 647, 484 

S.E.2d 621, 624 (1997) (quoting Adams v. Ristine, 138 Va. 273, 

288, 122 S.E. 126, 130 (1924)). "The record must show that the 

proffered expert possess sufficient knowledge, skill, or 

experience to render him competent to testify as an expert on the 

subject matter of the inquiry." King v. Sowers, 252 Va. 71, 78, 

471 S.E.2d 481, 485 (1996) (citing Griffett v. Ryan, 247 Va. 465, 

469, 443 S.E.2d 149, 152 (1994)). If an expert is competent to 

testify, his or her other qualifications or lack thereof are 

relevant only to the weight to be given to his or her testimony 

by the trier of fact. Id.

 

 1Wife also contends that Sheldin's opinion was inadmissible 

as a matter of law because he did not consider all the factors 

and variables in the case. Wife did not raise this issue at 

trial, and is precluded from doing so on appeal. Rule 5A:18. 
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 Sheldin testified that he had been a vocational 

rehabilitation counselor for nineteen years. Sheldin's 

curriculum vitae showed that he held a Master of Education degree 

in Rehabilitation Counseling from Kent State University. Sheldin 

had worked in a variety of vocational rehabilitation positions, 

but had not placed any attorneys into the labor market. Sheldin 

had, however, previously testified regarding the employability of 

attorneys, and testified that his training and experience was 

broad enough to encompass vocational assistance for attorneys. 

Under these circumstances, the court did not abuse its discretion 

in finding Sheldin qualified to testify as an expert with respect 

to employment opportunities. 

 V. 

 Spousal Support 

 Wife contends that the court erred in concluding that wife 

was not entitled to spousal support. Whether to award spousal 

support is a matter of discretion for the trial court. Jennings 

v. Jennings, 12 Va. App. 1187, 1196, 409 S.E.2d 8, 14 (1991) 

(citing McGuire v. McGuire, 10 Va. App. 248, 251, 391 S.E.2d 344, 

347 (1990)). "When considering the issue of spousal support, 

whether in a modification or initial award determination, the 

trial court must take into account the receiving spouse's needs 

and ability to provide for the needs, and balance those against 

the other spouse's ability to provide support . . . ." 

Stubblebine v. Stubblebine, 22 Va. App. 703, 710, 473 S.E.2d 72, 
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75 (1996) (en banc). "[O]ne who seeks spousal support is 

obligated to earn as much as he or she reasonably can to reduce 

the amount of the support need." Srinivasan, 10 Va. App. at 734, 

396 S.E.2d at 679 (citing Baytop v. Baytop, 199 Va. 388, 394, 100 

S.E.2d 14, 19 (1957)). 

 Because we remand for reconsideration of the equitable 

distribution award, the trial court will have to reconsider the 

issue of spousal support. Johnson v. Johnson, 25 Va. App. 368, 

375, 448 S.E.2d 659, 662 (1997). We, therefore, decline to 

address this issue on appeal. 

 Affirmed in part,

reversed in part,

and remanded.