COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

GERALD JAMES MIATECH, JR. 

 MEMORANDUM OPINION*

v. Record No. 1121-97-4 PER CURIAM 

 NOVEMBER 10, 1997 

MARY JEAN MIATECH 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 (Judy Dugger, on briefs), for appellant. 

 (Carolyn Smith Motes; Anne Goodwin; Goodwin & 

Nelson, on brief), for appellee. 

 Gerald James Miatech, Jr., (husband) appeals the decision of 

the circuit court awarding spousal support to Mary Jean Miatech 

(wife), distributing the parties' marital assets, and awarding 

wife attorney's fees. Husband contends that the trial court 

erred by (1) imposing on husband the capital gains tax liability 

from the sale of the marital residence; (2) requiring husband to 

attempt to persuade the Internal Revenue Service to hold wife 

harmless for any portion of that tax liability; (3) refusing to 

credit husband for payments made to wife after the separation; 

(4) finding that husband's $10,000 payment to retire outstanding 

debt on a 1993 Honda automobile was a gift to wife; (5) imputing 

income to husband when calculating spousal support; and 

(6) awarding wife attorney's fees. Upon reviewing the record and 

 

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

designated for publication. 
 2 

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. 

 EQUITABLE DISTRIBUTION 

 As the party seeking reversal, husband bears the burden to 

demonstrate error by record proof. "[D]ecisions 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). 

CAPITAL GAINS TAX LIABILITY 

 The parties sold their former marital residence in 1993. 

Husband purchased a new residence in 1994 for an amount greater 

than the selling price of the former marital residence. Wife did 

not purchase a home within two years of the sale. At the time of 

the hearing, it was unclear whether wife would be required to pay 

federal tax, and the associated interest and penalties, on a 

portion of the capital gains realized from the sale of the 

marital residence. 

 Husband contends that wife had access to the funds at all 

times and was able to purchase a new home within the required 

two-year period. However, throughout the marriage and even after 

the parties' separation, wife relied upon husband to prepare the 

parties' tax returns. On their 1993 joint federal income tax 

return prepared by husband after their separation, it indicated 
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that they would purchase a replacement residence within the 

two-year period. Wife testified that husband told her his 

separate purchase of a new home in 1994 resolved any capital 

gains liability. 

 Code § 20-107.3(E)(9) authorizes the trial court to consider 

the tax consequences to each party when determining the "amount 

of any division or transfer of jointly owned marital property, 

and the amount of any monetary award, the apportionment of 

marital debts, and the method of payment . . . ." The trial 

court found that husband received the full benefit of the 

rollover of the capital gains realized upon the sale of the 

former marital residence. Wife acted in reliance upon her 

understanding that husband's purchase of his new home satisfied 

the resulting capital gains tax liability. The distribution of 

the parties' assets would be significantly skewed if wife now 

faced substantial interest and penalties on her portion of the 

capital gains realized through that sale. Therefore, we find no 

error in the trial court's ruling that husband cooperate with 

wife to resolve any federal tax consequences to her due to 

husband's actions following the sale of the marital residence and 

resulting capital gains and, if necessary, reimburse wife for any 

capital gains tax and liability imposed upon her. 

PAYMENTS AFTER SEPARATION 

 Husband contends that the trial court erred when it refused 

to credit him with all the payments he made to wife after the 
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parties' separation. In support of his contention, husband 

asserts that wife fraudulently induced him to make these payments 

pursuant to an agreement which the parties drafted but never 

signed. The trial court found, and the evidence documents, that 

the parties agreed that certain specific payments to wife by 

husband were an advance against the distribution of marital 

assets. Husband's April 16, 1996 letter to wife refers to two 

advances in the amount of $4,000 and $2,000. Wife did not 

contest that husband made these advances. Nothing indicates that 

the monthly payments husband paid to wife were similarly agreed 

to be advances against an ultimate distribution of marital 

assets. Husband's allegation that wife fraudulently induced him 

to make payments is unsupported by the evidence. 

 Husband agreed to pay wife $600 a month until the divorce 

decree was entered. Husband voluntarily increased the monthly 

payments to $800 when wife's rent increased. However, while the 

support payments were made pursuant to an agreement between the 

parties, rather than pursuant to a court's pendente lite order of 

support, husband's obligation to support wife was not merely a 

gratuitous act. Husband had been the sole provider for most of 

the marriage and remained the primary wage earner at the time of 

separation. Wife was entitled to continued support, not as a 

gift from husband, but as his obligation. See Code 

§ 20-103(A)(i). Therefore, we find no error in the trial court's 

denial of credit to husband for the payments of support made to 
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wife during the parties' separation. 

PAYMENT OF AUTOMOBILE DEBT 

 Husband also contends that the trial court erred when it 

refused to credit his payment of $10,000 towards the purchase of 

a 1993 Honda for wife as an advance against the distribution of 

the parties' marital assets. We find no error. While husband 

asserts that he relied upon the unsigned settlement agreement in 

making the payment, the trial court noted that husband made the 

payment several months after he knew that the agreement was not 

going to be signed. In his April 1996 letter, husband wrote that 

"I intend to pay off the loan on the 1993 Honda tomorrow and am 

therefore deducting your remaining portion of the joint costs, 

namely Four Thousand Dollars ($4,000.00)." Husband kept the two 

vehicles owned by the parties at the time of separation. The 

trial court found that the payment for the car was in the nature 

of support to wife, and that husband was not entitled to credit. 

 That finding is supported by the evidence. 

SPOUSAL SUPPORT AND IMPUTATION OF INCOME 

 Husband contends that the trial court erred when it awarded 

spousal support to wife and when it imputed income to him when 

calculating the support amount. We disagree. 

 In awarding spousal support, the chancellor 

must consider the relative needs and 

abilities of the parties. He is guided by 

the nine 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 a clear abuse of discretion. 
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Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 

(1986). It is apparent from the trial judge's opinion letter 

that he considered the statutory factors before awarding wife 

monthly spousal support in the amount of $400. The judge noted 

that husband had several undergraduate degrees and a 

post-graduate degree and was seeking an additional master's 

degree. Wife graduated from high school. Husband was the 

primary wage earner throughout the marriage, and earned $80,000 

in 1995 and $65,000 in 1996. Wife was a full-time homemaker and 

military wife until late in the marriage. Wife earned $29,000 in 

1996. Both parties were forty-nine years old and in good health 

at the time of the hearing, although husband received a 10% 

disability reduction in his retirement pay for an undisclosed 

reason. 

 "Spouses entitled to support 'have the right to be 

maintained in the manner to which they were accustomed during the 

marriage, but their needs must be balanced against the other 

spouse's financial ability to pay.'" Stubblebine v. Stubblebine, 

22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc). 

Husband admitted that he earned $20,000 and was "underemployed," 

but testified that he felt no need to earn more money and only 

sought intellectual, not monetary, satisfaction. He wanted to 

return to graduate school to obtain an additional master's 

degree. The trial court noted that, at age forty-nine, husband 

could not retire while wife was in need of support. Wife 
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demonstrated a need for continued support and husband had the 

earning capacity to provide support. See id. at 710-11, 473 

S.E.2d at 75-76. 

 The evidence supports the trial court's decision to impute 

income to husband of $40,000 and to award wife monthly spousal 

support of $400. Therefore, we find no error. 

 ATTORNEY'S FEES 

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. See Graves v. Graves, 4 Va. 

App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper 

award of counsel fees is reasonableness under all the 

circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277, 

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

 The evidence supports the trial court's finding that husband 

had greater income and earning capacity than wife. Based on the 

number of issues involved and the respective abilities of the 

parties to pay, we cannot say that the award of $6,000 in 

attorney's fees was unreasonable or that the trial judge abused 

his discretion in making the award. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.