COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

OSCAR MARION BARBER 

v. Record No. 1017-95-2 MEMORANDUM OPINION*

 PER CURIAM 

LAURA BURNSIDE BARBER NOVEMBER 28, 1995 

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY 

John M. Folkes, Judge 

 (Jeffrey M. Steingold, on brief), for appellant. 

 (Henry A. Conner, Jr., on brief), for appellee. 

 Oscar Marion Barber appeals the decision of the circuit 

court finding fraud on the part of Laura Burnside Barber. The 

commissioner found, and the circuit court confirmed, that Laura 

had fraudulently induced Oscar to convey to her his interest in 

property owned jointly. On appeal, Oscar raises the following 

issues: (1) whether the trial court erred in refusing to order 

Laura to pay rent to him for the time she occupied the property 

following the fraudulent conveyance; and (2) whether the trial 

court erred in refusing to award Oscar attorney's fees and costs. 

 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. Rule 5A:27. 

 

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

designated for publication. 
 2 

Recovery of Rent

 Oscar sought to recover rent from Laura as part of the 

equitable distribution of the parties' marital estate. "In 

reviewing an equitable distribution award on appeal, we recognize 

that the trial court's job is a difficult one. Accordingly, we 

rely heavily on the discretion of the trial judge in weighing the 

many considerations and circumstances that are presented in each 

case." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 

(1987). Upon entry of the divorce decree, property formerly held 

by the spouses as joint tenants or tenants by the entirety is 

converted into a tenancy in common. Code § 20-111. We have 

ruled that, under some circumstances, a party who retains 

exclusive possession of property formerly jointly held may be 

liable to the other tenant for rent. See, e.g., Gaynor v. Hird, 

15 Va. App. 379, 382, 424 S.E.2d 240, 242 (1992); see also Code 

§ 8.01-31. However, those cases are distinguishable from the 

situation in this case. 

 The trial court found Laura had defrauded Oscar out of his 

share of the property formerly owned by the parties as joint 

tenants. As Oscar acknowledged, Laura did not receive rent 

during Oscar's absence, although Laura was sharing the house with 

another man. There was no corpus of collected rents upon which 

to impose a constructive trust or for which Laura had a fiduciary 

duty to account. Moreover, regardless of the fraud perpetrated 

by Laura, Oscar would not have been residing in the home for a 
 3 

period of time prior to the parties' divorce due to his 

incarceration. 

 The fraud perpetrated by Laura was remedied by the recision 

of the deed to Laura as femme sole and the subsequent equitable 

distribution of the property. We cannot say the trial court 

abused its discretion in denying Oscar's request for the value of 

rental income during the time he was incarcerated. 

Attorney's Fees and Costs

 Awards of attorney's fees or costs are matters submitted to 

the sound discretion of the trial court and reviewable on appeal 

only for an abuse of discretion. 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. 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). The trial court held Laura "solely responsible and 

liable for all liens, notes, debts and other obligations 

including clouds of title which she caused to be incurred" upon 

the parties' property. Based upon this holding, the evidence 

presented and the number of issues involved, we cannot say that 

the trial judge abused his discretion in not also ordering Laura 

to pay Oscar's costs or attorney's fees. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.