COURT OF APPEALS OF VIRGINIA

Present: Ju dge Clements, Senior Judg es Willis and Annunziata Argued at Alexandria, Virginia

WILLIAM G. STEAKLEY MEMORANDUM OPINION * BY v. Record No. 2912-04-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 21, 2006 EILEEN R. STEAKLEY

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Leslie M. Alden, Judge Michael A. Ward for appellant. David L. Duff (The Duff Law Firm, on brief), for appellee.
William Steakley (husband) appeals the trial court’s equitable distribution and spousal support awards to Eileen Steakley (wife) in the final decree of divorce. Husband contends the trial court erred by (1) classifyi ng the personal injury settlement proceeds received by husband as marital property, (2) granting a monetary award to wife in the amount of $79,485, (3) awarding wife permanent alimony in the amount of $1,900 per month, (4) finding that wife was not voluntarily unemployed and in refusing to impute in come to her, (5) determining that wife was entitled to 40% of the proceeds of the sale of the former marital residence, (6) refusing husband’s request to award him joint title to the former marital residence by allowing him to purchase wife’s interest in the property, (7) finding that husband is solely res ponsible for the expenses associated with the former marital residence unt il the property is sold, (8 ) awarding wife 50% of husband’s civil service retirement system pension, (9 ) failing to equitably di vide wife’s interest in the United Airlines ESOP Plan and Define d Benefits Plan, and in awarding husband 50%

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - interest in the marital share of those retirement assets, and (1 0) failing to divide the $10,287 of
cash value on wife’s life insuranc e policy equitably between the parties. Wife seeks an award of appellate attorney’s fees and cost s. We affirm the trial court’ s ruling on classifying the personal injury settlement as marital prope rty. We find the remaining issues are procedurally defaulted. We award wife reasonable attorney’s fees and cost s, and remand this matter to the trial court to determine those fees and costs.
I. PROCEDURAL HISTORY During husband’s appeal from the divorce proceeding, wife filed a Suggestion in Bankruptcy, bringing to the Cour t’s attention that husband file d a Petition for Bankruptcy on March 7, 2005. By filing the petition, husband becam e a “debtor” under federal bankruptcy law. 11 U.S.C. § 101(13); Bogart v. Bogart , 21 Va. App. 280, 286, 464 S.E.2d 157, 159 (1995). Wife’s divorce proceeding against the defe ndant husband, including husband’s appeal, was automatically stayed under 11 U.S.C. § 362(a)(1). Platinum Fin. Servs. Corp. v. Byrd , 357 F.3d 433, 440 (4th Cir. 2004) (“The plain language of § 362 stays appellate proceedings in actions originally brought against the debtor, even when it is the debtor who files the appeal.”). Before we could consider husband’s argument th at the appeal could continue despite the stay, the United States Bankruptcy Court for the Ea stern District of Virgin ia lifted the stay on January 6, 2006. We now address th e merits of the appeal.
II. DEFAULTED ISSUES Husband either presents no authority to support questions two through five and seven through ten, or fails to cite to th e record where he preserved these issues for appeal. “Statements unsupported by argument, authorit y, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret appellant’s contention and correct deficiencies in a brief.” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415- 3 - S.E.2d 237, 239 (1992); see also Rule 5A:18; Rule 5A:20(e) (requiring appellants to brief the “principles of law, the argument, and the author ities relating to each question presented”). In his sixth question presente d, husband contends on brief that the trial court erred in denying his motion to retain the ma rital residence. He claims th at keeping the residence would be necessary to “provide stability and contin uity” for his minor child who has significant developmental disabilities, and w ould allow the child to stay in his school and to participate in school activities. Because husband raises these arguments for the first time on appeal, we will not consider them. Rule 5A:18; Buck v. Jordan , 256 Va. 535, 545-46, 508 S.E.2d 880, 885-86 (1998) (“We have repeatedly refused to consider issues or objections raised for the first time on appeal.”). Accordingly, the issues raised in que stions two through ten are procedurally defaulted and we need not address them.
III. PERSONAL INJURY SETTLEMENT Husband contends the trial court erred by cl assifying the personal injury settlement proceeds he received as marital property. We disagree. The trial court found that, the [husband] . . . failed to demons trate the amount, if any, of such personal injury settlement funds which was attributable to his non-economic loss, and has failed to adequately retrace any of the existing funds to such alleged amount. Accordingly, any funds currently in existence which th e [husband] claims to have originated from his personal injury settlement constitutes marital property and shall be divided as set forth hereinafter. When reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to the prevailing party below, granting it the benefit of a ny reasonable inferences. Wright v. Wright , 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002). Viewed in this light, the following facts are relevant to this issue. In February 1993, husband was involved in an automobile accident during the course of hi s employment with the- 4 - federal government. He suffered numerous spin al injuries and was placed on permanent disability. In August 1995 husband was awarde d a $500,000 personal injury settlement. After the U.S. Department of Labor retained $119,000 fo r medical expenses and compensation paid to husband, husband received the remainder of the settlement proceeds in the amount of $381,000.
He claims this entire amount reflected his non- economic loss, and was therefore his separate property. 1 Husband’s testimonial and documentary evid ence supports the contrary conclusion. Husband testified the settlement amount was ba sed on the salary that he would have received over the course of his projected seventeen-year working career. Clearly, settlement proceeds reflecting lost salary do not c onstitute non-economic loss. Furthermore, a worksheet from the Department of Labor admitted into evidence, upon which husband relies to support his contention, fails to show any division of the settlement proceeds into economic and non-economic loss. 2

1 We assume without deciding that husba nd’s underlying premise -- compensation for non-economic loss arising from a pe rsonal injury award constitutes separate property -- is sound. Code § 20-107.3(H) provides only th at “the court may direct paym ent of a percen tage of the marital share of any personal injury . . . recovery.” The “marital share” means that part of the total pe rsonal injury . . . recovery attributable to lost wages or me dical expenses to the extent not covered by health insurance acc ruing during th e marriage and before the last separation of the part ies, if at such time or thereafter at least one of the parties in tended that the separation be permanent. Code § 20-107.3(H). While the statute implies that the recovery not due to lost wages or medical expenses would not belong to the “marital share,” we have neve r decided the issue whether the non-marital share would necessarily be classified as separate property. “Property subject to equitable distribution must be classified as either separate or marital,” Thomas v. Thomas , 13 Va. App. 92, 95, 408 S.E.2d 596, 598 (1991), and pr operty acquired during the marriage is presumptively marital, Code § 20-107.3(A).

2 Absent this proof, husband’s argument he was able to successfully trace funds from the personal injury settlement to his various present day accounts is moot.- 5 - Our standard of review is well establishe d. Viewing the evidence in the light most favorable to wife, and applying the principle that the trier of fact determines both credibility and weight of the evidence, we conc lude the trial court did not err in finding that husband failed to prove what share of the proceeds of the personal injury claim was non-economic loss and separate property. Swanson v. Commonwealth , 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989). The trial court’s findings of fact are binding on this Court unless “plainly wrong or without supporting evid ence.” Rose v. Jaques , 268 Va. 137, 138, 597 S.E.2d 64, 70 (2004). We will not disturb that ruling on appeal.
IV. ATTORNEY’S FEES AND COSTS Wife petitions the Court for an award of attorney’s fees incurred in responding to husband’s appeal. The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). When the appellate court determines that an appeal lacks me rit, the case is remanded to the trial court to award reasonable attorney’s fees incurred while defending the app eal. Miller v. Cox , 44 Va. App. 678, 688-89, 607 S.E.2d 126, 133 (2005). Upon our review of the record, we find husband’ s challenges to the tr ial court’s award of spousal support to be wholly wit hout merit both in law and fact. Accordingly, we di rect the trial court on remand to award wife the reasonable at torney’s fees she incurred defending husband’s appeal of those issues. Husband’s request for an award of attorney’s fees on appeal is denied.- 6 - V. CONCLUSION For the reasons stated, we affirm the trial court’s ruling that the entire personal injury settlement belonged to the marital share. We find husband’s remaining issues are procedurally defaulted. Finally, we remand the matter to the c ourt below for an award of attorney’s fees to wife as outlined in this opinion. Affirmed and remanded.