COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bumgardner and 

 Senior Judge Hodges 

ADAM KEATING WYATT 

 MEMORANDUM OPINION*

v. Record No. 1410-01-2 PER CURIAM 

 SEPTEMBER 11, 2001 

MELANIE KAY-WYATT 

 FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

Horace A. Revercomb, III, Judge 

 (Winfred R. Mundle; Robert M. Alexander, on 

brief), for appellant. 

 (Paul A. Simpson; Chandra D. Lantz; 

Hirschler, Fleischer, Weinberg, Cox & Allen, 

on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Adam Keating Wyatt (husband) appeals from a final decree of 

divorce entered by the circuit court awarding Melanie Kay-Wyatt 

(wife) a divorce on the ground of desertion pursuant to Code 

§ 20-91(6). On appeal, husband contends the trial court erred in 

(1) granting wife a divorce on the ground of desertion, (2) 

finding husband had the ability to pay $2,200 monthly support to 

wife, (3) finding that $2,200 monthly support would provide wife 

with a standard of living at a level to which she had become 

accustomed during the marriage, (4) calculating wife's attorney's 

fees as a financial obligation under its support analysis, (5) 
failing to consider all the statutory factors in its support 

determination, (6) allocating the marital debt, (7) allocating the 

marital assets, (8) allowing the commissioner to rely on his notes 

rather than the transcripts, and (9) determining the parties' net 

worth in its equitable distribution analysis. 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. 

 On appeal, we view the evidence and all reasonable 

inferences in the light most favorable to appellee as the party 

prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 

391 S.E.2d 344, 346 (1990). 

Background

 The parties married on June 25, 1994. During the course of 

their marriage, the couple had two children. Following an 

argument on the evening of December 4, 1998, husband left the 

marital home and began living above his dental practice in a 

building the couple owned. Husband never again stayed at the 

marital home. 

 Husband established his own dental practice in 1996. By 

March 1997, he was treating more than 200 patients per month, had 

a waiting list for new patients and, during his second full year 

practicing, realized net profits of $93,396. Soon after the 

couple's separation, husband began neglecting his practice. 

Husband cancelled at least one HMO agreement, decreased his 

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patient load, reduced the hours in which he saw patients, and 

spent extended periods away from his practice. In January 2000, 

husband left his private practice and accepted a position as a 

staff dentist, substantially reducing his income. 

 Husband also refused to make the mortgage payments on the 

marital home, causing the home to be lost to foreclosure. 

Similarly, the office building the couple owned was lost through a 

conveyance in lieu of foreclosure when husband failed to maintain 

the payments. Husband then filed for bankruptcy protection and 

discharged a substantial portion of his debts. 

Analysis

Desertion

I. 

 The choice of divorce grounds is submitted to the sound 

discretion of the trial court and will be affirmed absent an 

abuse of that discretion. See Konefal v. Konefal, 18 Va. App. 

612, 613-14, 446 S.E.2d 153, 153 (1994). "'Where dual or 

multiple grounds for divorce exist, the trial judge can use 

. . . sound discretion to select the grounds upon which . . . to 

grant the divorce.'" Sargent v. Sargent, 20 Va. App. 694, 707, 

460 S.E.2d 596, 602 (1995) (quoting Lassen v. Lassen, 8 Va. App. 

502, 505, 383 S.E.2d 471, 473 (1989)). 

 "[D]esertion is a breach of matrimonial duty - an actual 

breaking off of the matrimonial cohabitation coupled with an 

intent to desert in the mind of the deserting party." 

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Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600, 

602 (1986). Husband left the marital home on December 4, 1998. 

He announced that he was leaving and in a letter to wife dated 

December 7, 1998, husband wrote, "I think that the time has come 

to an end in our relationship . . . ." Husband never returned 

to the marital home to sleep or stay from the time he left. 

"[I]n order to end a desertion, the parties must resume the 

matrimonial cohabitation with the intent to end the desertion." 

Id. at 299, 350 S.E.2d at 602. Because there is evidence to 

support the court's chosen ground for divorce, we shall not 

disturb it on appeal. 

Support

II. through V. 

 "Whether and how much spousal support will be awarded is a 

matter of discretion for the trial court." Barker v. Barker, 27 

Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). "In fixing the 

amount of the spousal support award, . . . the court's ruling 

will not be disturbed on appeal unless there has been a clear 

abuse of discretion. We will reverse the trial court only when 

its decision is plainly wrong or without evidence to support 

it." Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 

644 (1992) (citations omitted). 

 The trial court's discretion must not be exercised without 

reference to Code § 20-107.1, which "commands that, in order to 

exercise its discretion, '[t]he court shall . . . consider' the 

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specific factors contained therein. Failure to do so is 

reversible error." Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d 

89, 90 (1980) (citation omitted). In his report, the 

commissioner listed and discussed each statutory factor set 

forth in Code § 20-107.1. The commissioner concluded that 

wife's annual income was $30,039.12 and husband earned $60,762. 

The commissioner also noted that husband's annual income 

previously had been as high as $84,378. The commissioner noted 

the couple's high standard of living during the marriage and 

reported that husband was currently working at less than his 

full earning capacity. Wife retained custody of the couple's 

two minor children. The commissioner and the trial court 

carefully considered the household expenses of each party. 

Based upon consideration of all the factors, the commissioner 

recommended that wife receive $2,200 per month in support. 

 "In setting or modifying spousal support or child support, 

a court may impute income to a party voluntarily unemployed or 

underemployed." Blackburn v. Michael, 30 Va. App. 95, 102, 515 

S.E.2d 780, 783 (1999). The trial court found that husband, in 

allowing his practice to diminish shortly after the separation, 

and in accepting a lower paying staff dentist position, was 

voluntarily underemployed. 

 The trial court stated that "each of the parties shall bear 

his or her own attorney's fees." The commissioner did not err 

in considering wife's attorney's fees as a financial obligation 

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in determining the amount of support to award her. See Code 

§ 20-107.1(E). Considering the obligation as one of wife's 

debts did not result in husband being ordered to pay wife's 

attorney's fees. In fact, the commissioner's report 

specifically states that each party is responsible for his or 

her attorney's fees. 

 In his report, the commissioner found that during the 

marriage, wife contributed monetarily to the well-being of the 

family by working full time, earning approximately $30,000 per 

year as a teacher. She also provided the major care for the 

children and took care of the household chores. Additionally, 

she assisted husband in establishing his dental practice. 

 "When a party to a divorce suit establishes an entitlement 

to support, the law imposes upon the party liable for that 

support a duty to maintain the dependent party according to the 

parties' marital lifestyle." McCombs v. McCombs, 26 Va. App. 

432, 436, 494 S.E.2d 906, 908 (1998). After considering all of 

the relevant factors, the trial court determined that an award 

of $2,200 per month afforded wife an appropriate standard of 

living and was within husband's ability to pay. We find no 

abuse of discretion in the trial court's award of spousal 

support to wife. 

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Equitable Distribution

VI., VII. and IX. 

 The commissioner's report, adopted by the trial court, 

recites in detail the equitable distribution factors set forth 

in Code § 20-107.3. 

"In reviewing an equitable distribution 

award on appeal, we have recognized that the 

trial court's job is a difficult one, and we 

rely heavily on the discretion of the trial 

judge in weighing the many considerations 

and circumstances that are presented in each 

case." Klein v. Klein, 11 Va. App. 155, 

161, 396 S.E.2d 866, 870 (1990). Unless the 

record shows that the judge has abused his 

or her discretion by misapplying the 

statutory factors, the judge's determination 

will not be reversed on appeal. See id.

Anderson v. Anderson, 29 Va. App. 673, 692-93, 514 S.E.2d 369, 

379 (1999). The record clearly demonstrates that the 

commissioner and the trial court considered and weighed each of 

the required statutory factors in determining the distribution 

of the parties' debts and assets. 

Commissioner's Notes

VIII. 

 In his brief, husband's eighth question presented is: 

"Whether the trial court committed error when he adopted fully 

without modification the commissioner's practice of using his 

notes of testimonial evidence instead of the actual transcript 

that he had in his possession at the relevant times?" Husband, 

however, provided neither argument nor precedent in support of 

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this question presented. See Littlejohn v. Commonwealth, 24 Va. 

App. 401, 409, 482 S.E.2d 853, 857 (1997) (a party waives an 

issue on appeal if he does not submit written argument on the 

issue in his appellate brief); Rule 5A:20(e). Accordingly, we 

will not address this question presented. 

 Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

Affirmed.

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