COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

Argued at Alexandria, Virginia 

KEVIN B. CARR 

 MEMORANDUM OPINION* BY 

v. Record No. 1848-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 7, 2002 

MARY ELLEN CARR 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 Timothy W. Barbrow for appellant. 

 Betty Moore Sandler (Nichols, Bergere, 

Zauzig & Sandler, P.C., on brief), for 

appellee. 

 Kevin B. Carr (husband) appeals a June 22, 2001 final 

decree of divorce granting Mary Ellen Carr (wife) a divorce a

vinculo matrimonii on the ground that the parties had lived 

separate and apart for more than one year. He contends that the 

trial court erred in (1) using a valuation date that did not 

provide an accurate value for husband's business, (2) failing to 

remand the issue of valuation of his business to the 

commissioner in chancery (commissioner), (3) failing to impute 

income to wife in determining the amount of the spousal support 

award, (4) failing to limit the duration of spousal support 

awarded to wife, (5) setting an amount of monthly installments 

 

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

designated for publication.
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due on the monetary award at $3,000 per month, and (6) awarding 

wife attorney's fees and costs. Finding no error, we affirm. 

I. PROCEDURAL HISTORY 

 Husband and wife were married on June 3, 1978. Husband 

left the marital residence in June of 1998. Wife filed a bill 

of complaint for divorce on April 22, 1999, seeking a divorce a

vinculo matrimonii on the ground that the parties had lived 

separate and apart for one year. The matter was referred to a 

commissioner by a September 26, 2000 decree. On January 25, 

2001, the commissioner heard evidence and filed his report on 

March 23, 2001. In it, he made specific findings on the 

valuation of husband's business, the amount of spousal support 

to be paid to wife, and an award of attorney's fees and costs to 

wife. The trial court entered the final decree of divorce on 

June 22, 2001, adopting the findings and conclusions of the 

commissioner on these issues. 

II. STANDARD OF REVIEW 

 "On review, we consider the evidence in the light most 

favorable to the party prevailing in the trial court." 

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 

31 (1989). 

 "On appellate review, a divorce decree is presumed correct 

and will not be overturned if supported by substantial, 

competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va. 

App. 77, 83, 448 S.E.2d 666, 670 (1994). 
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 "A commissioner's findings of fact which have been accepted 

by the trial court are presumed to be correct when reviewed on 

appeal and are to be given great weight by this Court. The 

findings will not be reversed on appeal unless plainly wrong." 

Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240, 245-46 

(1998) (internal citations omitted). "Because of the 

presumption of correctness, the trial judge ordinarily must 

sustain the commissioner's report unless the trial judge 

concludes that it is not supported by the evidence." Brown v. 

Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) (citing 

Morris v. United Virginia Bank, 237 Va. 331, 337-38, 377 S.E.2d 

611, 614-15 (1989)). 

III. ALTERNATE VALUATION DATE 

 Husband first argues that it was error for the commissioner 

to use 1998 as the valuation date for K & K Finishing Systems, 

Inc., a marital asset, rather than January 25, 2001, the date of 

the commissioner's hearing. Under the facts of this case, we 

disagree. 

 Code § 20-107.3(A) provides, in pertinent part: 

The court shall determine the value of any 

such property as of the date of the 

evidentiary hearing on the evaluation issue. 

Upon motion of either party made no less 

than twenty-one days before the evidentiary 

hearing the court may, for good cause shown, 

in order to attain the ends of justice, 

order that a different valuation date be 

used. 
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 "We have stressed that the trial judge in evaluating 

marital property should select a valuation [date] 'that will 

provide the Court with the most current and accurate information 

available which avoids inequitable results.'" Gaynor v. Hird, 

11 Va. App. 588, 593, 400 S.E.2d 788, 790 (1991) (quoting 

Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 

(1987)). 

 On December 18, 2000, wife filed a timely motion to use 

1998 as an alternate valuation date. After hearing the evidence 

presented, the commissioner determined that husband had not 

provided information about the value of the business post-1998 

in a timely and usable manner. He found that "it does appear 

appropriate, that the business should be valued as of the date 

of the last information [1998] provided by Mr. Carr to Mrs. Carr 

for use by her expert, Mr. Stephens." Credible evidence 

supports this finding. 

 Husband presented evidence that the value of K & K 

Finishing Systems, Inc., based on his bookkeeper's computation 

of total stockholder equity, was $134,918 at the end of 1998 and 

approximately $96,000 at the end of 1999. Wife relied on the 

testimony of William Stephens (Stephens), an expert in the area 

of business valuations, who evaluated the business as a single 

owner business, with no plans for immediate sale. He used both 

the asset and income methods to arrive at a valuation with the 

most recent information provided being the 1996-1998 financial 
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statements. He then placed a value on the business as of 

December 31, 1998, the most recent date for which he had 

complete information.1 

 The commissioner was not plainly wrong in finding that 

Stephens "was working with the information that was available to 

him at the time" or that it was "appropriate, however, that the 

business should be valued as of the date of the last information 

provided by Mr. Carr to Mrs. Carr for use by her expert, Mr. 

Stephens." 

IV. FAILURE TO REMAND ON VALUATION 

 Husband next argues the trial judge never ruled on the 

alternate valuation date and that even if wife's expert did not 

have sufficient time to include the 1999 information in his 

valuation, the trial court should have remanded this issue to 

the commissioner for further consideration. These contentions 

are without merit. 

 "[A] trial court will usually have discretion to determine 

the date on which an asset will be valued." Rowe v. Rowe, 33 

Va. App. 250, 265, 532 S.E.2d 908, 916 (2000) (citing Mitchell 

v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987)). 

 The commissioner, considering the evidence presented, 

determined that 1998 was the appropriate date to use. Husband 

 1

 We note that husband argues that he provided additional 

information early in December 2000. However, the record does 

not reflect that this was complete nor sufficient for wife's 

expert to adequately value the business at a later date. 
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filed exceptions to this finding, and the trial court overruled 

these by accepting the commissioner's findings. 

[T]his court adopts and incorporates herein 

by reference the [c]ommissioner's 

conclusions and findings of fact that 

[husband's] company, K & K Finishing 

Systems, Inc., has a value of One Hundred 

Ninety-Nine Thousand Six Hundred and 

Nineteen Dollars ($199,619.00) which should 

be divided between the parties with 

[husband] receiving seventy-five percent 

(75%) and [wife] receiving twenty-five 

percent (25%). 

Thus, the motion for an alternate valuation date was ruled on by 

the trial court and as noted above, no abuse of discretion has 

been shown in the choice of date. 

 Additionally, the trial court was not required to remand 

this issue for consideration of husband's later provided 

financial information when he had the opportunity to present 

this evidence at the time of the original hearing. See

Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 

(1989) (the burden is on the party to provide the trial court 

with sufficient evidence to value the property); Clements v. 

Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 260 (1990) 

("reviewing courts cannot continue to reverse and remand . . . 

cases where the parties have adequate opportunity to introduce 

evidence but have failed to do so"). 

 Thus, the trial court did not abuse its discretion in 

affirming the commissioner's finding that 1998 was the 
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appropriate valuation date nor was it required to remand the 

case for additional evidence. 

V. IMPUTED INCOME 

 Husband next contends that the trial court erred in failing 

to impute income to wife because she was voluntarily working 

part-time and should have sought full-time employment. The 

record provides ample evidence to support the trial court's 

refusal to impute income. 

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

S.E.2d 780, 784 (1999) (citing Saleem v. Saleem, 26 Va. App. 

384, 393, 494 S.E.2d 883, 887 (1998)). 

 "When asked to impute income to a [party], the trial court 

must consider the [party's] earning capacity, financial 

resources, education and training, ability to secure such 

education and training, and other factors relevant to the 

equities of the parents and children." Niemiec v. Department of 

Social Services, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 

(1998) (citing Brooks v. Rogers, 18 Va. App. 585, 592, 445 

S.E.2d 725, 729 (1994)). "The burden is on the party seeking 

the imputation to prove that the other parent was voluntarily 

foregoing more gainful employment, either by producing evidence 

of a higher-paying former job or by showing that more lucrative 
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work was currently available." Id. (internal citations 

omitted). "The evidence must be sufficient to "'enable the 

trial judge reasonably to project what amount could be 

anticipated.'" Id. (quoting Hur v. Virginia Dept. of Social 

Services Div. Of Child Support Enforcement ex rel. Klopp, 13 Va. 

App. 54, 61, 409 S.E.2d 454, 459 (1991)). Husband failed to 

meet this burden. 

 Wife, a nurse, had not worked outside the home for fifteen 

years prior to the parties' separation. At the time of trial, 

she worked twenty-five hours a week in a doctor's office and 

earned approximately $1,936 per month. Wife showed a monthly 

deficit of $1,274. Husband earned approximately $1,100 per 

week.2 It was undisputed that the parties' youngest child was 

having significant behavioral and emotional issues caused by the 

divorce. The commissioner stated that "given the circumstances 

of the two younger children, particularly the parties' son, it 

is appropriate that Mrs. Carr not be required at this time to 

work full time." Credible evidence supports this finding. 

 Additionally, husband failed to present evidence that there 

were full-time jobs available to wife. Husband's statement on 

brief that "wife holds a degree in a profession where there is a 

great demand" does not satisfy his burden of giving the trial 

 2 Because of the nature of husband's business and the manner 

information was provided, the commissioner found in referencing 

husband's income that "getting a firm figure on anything above 

that is difficult."
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court sufficient evidence to allow the trial judge to reasonably 

project the amount of anticipated income. Thus, the trial court 

was not plainly wrong in refusing to impute income to wife. 

VI. DURATION OF SPOUSAL SUPPORT 

 Husband also contends that the trial court abused its 

discretion by failing to limit to four years his spousal support 

obligation. He argues that the need for wife to work part-time 

will cease when their youngest child reaches eighteen and, thus, 

her need for spousal support will terminate at that time. We 

find no abuse of discretion in failing to limit the duration of 

wife's support. 

 Code § 20-107.1(C) provides that "[t]he court, in its 

discretion, may decree that maintenance and support of a spouse 

be made in periodic payments for a defined duration, or in 

periodic payments for an undefined duration, or in a lump sum 

award, or in any combination thereof." 

 "In awarding spousal support, the chancellor must consider 

the relative needs and abilities of the parties. He is guided 

by the . . . factors that are set forth in Code § 20-107.1. 

When the chancellor has given due consideration to these 

factors, his determination will not be disturbed on appeal 

except for clear abuse of discretion." Collier v. Collier, 2 

Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). 

 "'In fixing the amount of the spousal support award, . . . 

the court's ruling will not be disturbed on appeal unless there 
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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.'" Moreno v. Moreno, 24 Va. App. 190, 

194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble, 14 

Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)). 

 "'[S]pousal support awards must be determined in light of 

contemporary circumstances and . . . redetermined [if necessary] 

in light of new circumstances.'" Blank v. Blank, 10 Va. App. 1, 

4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va. 

993, 995, 254 S.E.2d 56, 58 (1979)). "The court, in setting 

support awards, must look to current circumstances and what the 

circumstances will be within the immediate or reasonably 

foreseeable future, not to what may happen in the future." 

Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 

679 (1990) (citing Young v. Young, 3 Va. App. 80, 81-82, 348 

S.E.2d 46, 47 (1986)). 

 The trial court adopted the commissioner's findings that 

wife showed a current support need of $875 per month. He 

further found that "given the circumstances of the two younger 

children, particularly the parties' son, it is appropriate that 

Mrs. Carr not be required at this time to work full time." The 

commissioner stated that wife "should be able to increase to 

full time employment when the situation with the parties' 

younger children, primarily their son, Adam, becomes more 

stable." 
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 While husband argues that a change in wife's circumstances 

is reasonably foreseeable because of the ages of the children, 

wife's exact need for support four years hence cannot be 

reasonably calculated at present. If supported by the evidence 

at the time the children reach their majority, husband may 

petition for termination of his support obligation at that time. 

See Code § 20-109. 

 As we recently stated in Joynes v. Payne, 36 Va. App. 401, 

551 S.E.2d 10 (2001), "[Code § 20-107.1] does not require the 

trial court to specify the date of termination of a spousal 

support award. In fact, the language allows the trial court to 

order an award for an undefined duration." Id. at 423, 551 

S.E.2d at 21. Thus, we cannot say that the trial court abused 

its discretion in awarding wife "periodic payments for an 

undefined duration." 

VII. AMOUNT OF MONTHLY INSTALLMENTS 

 Next, husband contends that the trial court erred in 

requiring him to pay $3,000 per month to satisfy the equitable 

distribution award, costs, and fees awarded to wife because he 

lacks adequate funds from which to make the monthly payment. 

 Code § 20-107.3(D) provides, in pertinent part, that "the 

court has the power to grant a monetary award, payable either in 

a lump sum or over a period of time in fixed amounts, to either 

party." 
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 The record reflects no abuse of discretion. The payment 

plan, in effect, gives husband an opportunity to pay his 

equitable distribution award and costs over approximately a 

five-year time span rather than having it due upon entry of the 

order. Credible evidence supports the trial judge's finding 

that husband has the ability to pay according to the payment 

plan. 

VIII. ATTORNEY'S FEES AND COSTS 

 Lastly, husband argues that the trial court abused its 

discretion in awarding wife attorney's fees of $15,000, $1,250 

as her half of the commissioner's fee and $5,000 toward the cost 

of the valuation of husband's business. 

 "An 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." Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987) (citing Ingram v. Ingram, 217 

Va. 27, 29, 225 S.E.2d 362, 364 (1976)). 

 "'Where . . . the trial court finds the wife needs and is 

entitled to maintenance and support and the husband has the 

financial ability to meet those needs, its failure to award 

counsel fees to her is, in our opinion, an abuse of . . . 

discretion.'" Poliquin v. Poliquin, 12 Va. App. 676, 681, 406 

S.E.2d 401, 405 (1991) (quoting Thomas v. Thomas, 217 Va. 502, 

505, 229 S.E.2d 887, 890 (1976)). 
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 "'[T]he key to a proper award of counsel fees . . . [is] 

reasonableness under all of the circumstances revealed by the 

record.'" Poliquin, 12 Va. App. at 682, 406 S.E.2d at 405 

(quoting Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 

523, 530 (1988)). 

 Husband argues that his income of $56,000 per year is 

insufficient to meet the $21,250 awarded to wife in attorney's 

fees and costs. However, the commissioner notes that for 1998, 

husband's "effective income" was $98,243 and if he assumed 

additional duties as office manager he would have an effective 

income of $127,902. Further, for 1999, husband had compensation 

of $96,419 and, with the office manager adjustment, $126,078. 

The commissioner noted that "it is clear that [husband] can 

produce significant income, if he can refocus on his business 

and give it the attention that he previously gave it." 

 Wife had incurred over $30,000 in attorney's fees and over 

$10,000 in costs for the business valuation. Wife works 

part-time at $16 per hour. Under these circumstances, the award 

of a part of wife's attorney's fees and costs was reasonable. 

Thus, the trial court did not abuse its discretion in awarding 

wife attorney's fees. 

IX. ATTORNEY'S FEES FOR APPEAL 

Wife has requested attorney's fees for matters relating to 

this appeal. Upon consideration of the entire record in this 

case, we hold that wife is entitled to a reasonable amount of 
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additional attorney's fees, and we remand for an award of further 

costs and counsel fees incurred in this appeal. 

For the foregoing reasons, we affirm the trial court and 

remand for consideration of counsel fees on appeal. 

Affirmed and remanded.