COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

RAYMOND K. COVINGTON 

 MEMORANDUM OPINION* BY 

v. Record No. 0995-96-2 CHIEF JUDGE NORMAN K. MOON 

 DECEMBER 17, 1996 

EDWINA A. COVINGTON 

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

William H. Ledbetter, Jr., Judge 

 John M. DiJoseph (Sattler & DiJoseph, P.C., 

on brief), for appellant. 

 No brief or argument for appellee. 

 Raymond K. Covington appeals the judgment of the circuit 

court deciding matters of spousal support, custody, and equitable 

distribution. Appellant raises six questions: (1) whether the 

trial court erred by failing to consider all the factors for 

determining spousal support under Code § 20-107.1; (2) whether 

the trial court erred by refusing to give appellant an ore tenus

hearing on the issue of custody; (3) whether the trial court 

erred when it held that the denial of visitation was not a change 

of circumstances warranting a change in custody; (4) whether the 

trial court miscalculated child support under the guidelines; (5) 

whether the trial court's legal analysis of the parties' 

antenuptial agreement was flawed and failed to consider the 

factors enumerated by Code § 20-107.3(E) in determining equitable 

 

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

designated for publication. 
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distribution; and (6) whether the trial court miscalculated the 

marital share of appellant's federal government pension. We find 

that the trial court did not err in its disposition of these 

matters, and accordingly, we affirm the decision of the trial 

court. 

 The parties were married on November 10, 1980. The parties 

entered an antenuptial agreement dated November 12, 1980, wherein 

appellee relinquished all rights in appellant's real estate in 

exchange for $6,000, or one-third of the value of the real 

estate, whichever was greater, at the time of appellant's death. 

 Appellee left the marital abode on April 2, 1993, after a 

prolonged period of disagreement between the parties. Judgment 

of the Circuit Court of Spotsylvania County was entered April 15, 

1996, granting appellee a no-fault divorce, granting appellee 

custody of the parties' two children, Edwina, age ten, and RaeAnn, age nine, determining equitable distribution of marital 

assets, and awarding spousal and child support. 

 Several pieces of property were acquired during the 

marriage. In 1980, appellant acquired three parcels totalling 

about eight acres near Thornburg in Spotsylvania County 

("Thornburg property"). Appellant contends that the property was 

acquired with his income earned prior to the parties' marriage. 

On January 22, 1993, shortly before the parties separated, 

appellant created a trust (the "CQ Trust") benefitting the 

parties' children and transferred the Thornburg property to the 
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trust. Appellant, appellant's brother and a friend were named as 

trustees. The property was valued at $28,800 and was not 

encumbered. 

 In 1981, appellant purchased a house on Clay Street in the 

District of Columbia ("Clay Street property"). The home served 

as the parties' marital abode until they relocated to 

Spotsylvania County. The property was sold in 1989. 

 On April 20, 1983, appellant bought a duplex in Rochester, 

New York for $5,500 titled in his name. The home was in need of 

much repair at the time of purchase and was repaired by members 

of appellant's family. The home was purchased for appellant's 

parents and was titled in appellant's name because at the time 

appellant's mother's credit was "overextended." Appellant 

asserts that the home was purchased with non-marital funds 

supplemented by funds of appellant's mother. The property was 

later sold. 

 In October, 1983, the parties jointly acquired a parcel in 

Glenn Hill Subdivision in Camp Springs, Maryland ("Camp Springs 

property"). The property was sold in 1990 to Mr. Covington's 

brother for the $67,451 balance of the mortgage. The property 

was valued at $118,000. 

 In 1987, appellant purchased a townhouse in Bragg Hill, 

located in Fredericksburg ("Bragg Hill property"). Appellant 

asserts that his family provided most of the purchase price. 

Appellee contends that she made a substantial monetary 
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contribution. On January 22, 1993, shortly before the parties' 

separation, appellant transferred the property to the CQ Trust. 

The property was valued at $30,400. It is not clear what the 

balance was on the deed of trust, however, the balance was 

$25,500 at the time appellant purchased the property. 

 On January 12, 1987, the parties purchased a home on Noel 

Drive in Arrington Heights Subdivision in Spotsylvania County 

("Noel Drive property"). This residence served as the marital 

abode until the parties' separation on April 2, 1993. 

Subsequently, the property went to foreclosure and was sold at 

auction on December 3, 1993. 

 In 1988, the parties purchased a lot next to the Noel Drive 

property. The lot was valued at $16,000 and was not encumbered. 

 In addition to the real property assets, the marital estate 

also included appellant's government retirement. Appellant was 

employed by the United States Patent and Trademark Office 

beginning in 1974. The court calculated the marital share as 

thirteen years over appellant's total years of service. Appellee 

withdrew her retirement benefits during the course of the 

marriage and consequently was not the beneficiary of a retirement 

fund. 

 The parties' liabilities include appellee's medical and 

legal bills totalling $22,000 and appellant's income tax 

liability for 1990, 1991, and 1992 totalling more than $52,000. 

 Spousal Support
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 Code § 20-107.1 delineates the specific factors to be 

considered by the trial court in determining spousal support. 

Appellant's assertion that the trial court failed to consider 

these factors is contradicted by the record. The trial court's 

cognizance of the statutory factors is evidenced by the court's 

statement that "[c]onsidering all the factors enumerated in 

§ 20-107.1, including the monetary award, the court is of the 

opinion that . . . ." Appellant properly argues that mere 

recitation that the factors have been considered is insufficient. 

 However, the record indicates that the trial court heard and 

considered evidence addressing the factors and weighed them in 

making its final award. 

 Contrary to appellant's apparent belief that the trial court 

did not give proper consideration to appellee's ability to work, 

the trial court specifically observed that "[appellant] appears 

to be in good health. [Appellee] suffers from several medical 

conditions, including diabetes and asthma. Her disability is 

obvious. Thus, her work history and earnings records are of 

marginal relevance at this point." While appellant may disagree 

with the weight the trial court has accorded the evidence 

regarding appellee's health, the record nonetheless indicates the 

court's clear consideration of the matter. 

 Similarly, appellant argues that "the court failed to give 

due weight to the huge tax bill of about $52,000, that 

[appellant] owes." The court's opinion observes that "[t]he 
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parties' liabilities that have been particularized for the court 

are [appellee's] medical and legal bills . . . totalling about 

$22,000.00, and an income tax liability of [appellant's] for 

1990, 1991, and 1992 amounting to more than $52,000.00." Again, 

the trial court's opinion clearly evidences consideration of the 

factor. The court is under no obligation to give more or less 

weight to this factor, and appellant's belief that the matter 

should have been accorded more weight does not constitute grounds 

on which this Court may interfere with the findings of the trial 

court. Nor does the fact that the trial court did not proceed to 

discuss each of the remaining factors enumerated by Code 

§ 20-107.1 individually require a finding of error. Provided the 

record indicates the court's consideration of these factors, as 

is the case here, the trial court need not disclose the totality 

of its considerations nor must it address each factor point by 

point in its opinion. 

Ore Tenus Hearing

 Appellant accurately asserts that it is well established 

that "[t]he trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed 

unless plainly wrong or without evidence to support it." Venable

v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). 

However, this holding does not stand for the proposition that an 

ore tenus hearing is required. It is within the discretion of 

the trial court to take evidence in such a manner. The court's 
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decision not to do so does not, as a matter of law, require 

reversal of the trial court's decision. 

 It is also worth noting that appellant's claim that the 

trial court erred, even if a meritorious claim, was not properly 

preserved for consideration on appeal. As noted in the trial 

court's thorough letter opinion which, in relevant part, 

addressed appellant's exception to the method in which evidence 

was taken, it was appellee, not appellant, who originally 

requested an ore tenus hearing. Here, it is appellant that 

objects to the fact that an ore tenus hearing was not held. 

However, it was the parties' decision not to pursue such a 

hearing. The trial court offered the parties the option of 

having the matter referred to a commissioner in chancery or, if 

the parties wished, of taking evidence by deposition. (Letter 

Opinion from J. William H. Ledbetter, Jr. to Thomas Y. Savage, 

Esq. and Nicholas A. Pampas, Esq., of 10/27/95, trial court 

record at 329-330). Neither party ever submitted a sketch decree 

of reference or otherwise informed the court that they wished to 

have a commissioner appointed to receive evidence and 

consequently, the trial court reached the logical conclusion that 

the parties had decided to take evidence by deposition. Id. at 

330. 

 In addition to relying on the parties' apparent preferences 

with regard to this matter, the trial court's action in this 

matter also reflects the fact the trial court was familiar with 
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the parties. The trial court explained, noting that: 

 Finally, it should be noted that [the 

parties] are not strangers to the court. 

They have appeared and testified at ore tenus 

hearings, so that the court has observed 

their demeanor and has had occasion to 

determine their credibility and to weigh 

their testimony. Much of what is contained 

in the depositions is a restatement, with 

more detail and elaboration, of previous 

testimony heard by the court. The court has 

carefully reviewed the transcribed testimony 

and the exhibits, and under the circumstances 

of this case, has been able to give full and 

fair consideration to the evidence. 

Id. 

 The trial court acted within its sound discretion in taking 

evidence and fairly relied on the preferences of the parties in 

proceeding. Accordingly, we find the trial court did not err by 

not conducting an ore tenus hearing. 

Denial of Visitation

 Appellant asserts that the court erred by holding that the 

denial of visitation by appellee did not constitute a material 

change in circumstances warranting a change in custody. 

Appellant has misstated the court's holding. The court did not 

decide it was not a change of circumstances; it decided that 

"[appellant's] assertions about visitation are not, under the 

circumstances, sufficient to justify change of custody even 

giving due deference to all of his complaints." 

 The trial court's opinion clearly indicates the additional 

circumstances it considered and which it found warranted 

appellee's continued custody. The trial court indicated that the 
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parties' children, ages ten and nine, had lived with appellee all 

their lives, that appellee has been their primary caretaker, and 

that appellee continues to reside in the Fredericksburg community 

in which the children have grown up, whereas appellant has 

relocated to Fort Washington, Maryland. In light of these 

circumstances and considering all the factors enumerated by Code 

§ 20-124.3, the trial court properly found that the best 

interests of the children were served by continuing custody with 

appellant. 

Child Support Calculations

 Appellant argues that in calculating child support, the 

trial court did not give sufficient weight to appellant's ability 

to pay and appellee's ability to work, factors prescribed under 

Code § 20-108.1(B)(11). 

 Had the trial court failed to consider these factors, this 

would constitute error. Hiner v. Hadeed, 15 Va. App. 575, 578, 

425 S.E.2d 811, 813 (1993). However, the record indicates that 

the court gave consideration to these factors. The relative 

weight accorded these factors is based on the evidence presented 

to the trial court and is determined in the court's ultimate 

discretion. Here the trial court concluded, "[c]onsidering the 

factors enumerated in § 20-108.1, and with special consideration 

of the statutory guidelines in § 20-108.2, . . . that [appellant] 

should pay $950 per month as child support, the presumptive 

amount . . . ." This amount constituted a reduction in 
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appellant's prior support obligations. 

 Contrary to appellant's assertions, this reduction was made 

in light of the trial court's recognition of appellant's 

diminished capacity to pay. The trial court specifically stated 

in its letter opinion that "[t]he diminution from previous 

support orders is based on the significant tax indebtedness owed 

by [appellant] and the money now being received by [appellee] 

from Social Security for the children." 

 Likewise, with regard to the appellant's argument that the 

court did not give proper weight to the ability of appellee to 

work, the record clearly indicates the court considered this 

factor. The trial court specifically observed that "[appellant] 

appears to be in good health. [Appellee] suffers from several 

medical conditions, including diabetes and asthma. Her 

disability is obvious. Thus, her work history and earnings 

records are of marginal relevance at this point." 

 Finding that the statutorily prescribed factors were 

considered by the trial court in reaching its decision, we find 

no error and again reiterate that the weight accorded the 

evidence by the trial court is soundly within the discretion of 

the court. 

Antenuptial Agreement and Equitable Distribution

 Prior to July 1, 1986, the validity of antenuptial 

agreements was governed by conditions set forth in Batleman v.

Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957). By the 
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enactment of the Virginia Premarital Agreement Act (Act), 

effective July 1, 1986, execution of such contracts has been 

given legislative approval within the limits set forth therein. 

Batleman provided that: 

 To render an ante-nuptial agreement valid, 

there must be a fair and reasonable provision 

therein for the wife, or--in the absence of 

such provision--there must be full and frank 

disclosure to her of the husband's worth 

before she signs the agreement, and she must 

sign freely and voluntarily, on competent 

independent advice, and with full knowledge 

of her rights. 

199 Va. at 158, 98 S.E.2d at 521 (citation omitted). Here, the 

record supports the conclusion that the agreement is valid. 

 At issue, however, is the trial court's interpretation of 

the agreement as being limited to only the Thornburg property and 

further, being limited only to relinquishment of property rights 

at the time of appellant's death. Antenuptial agreements are 

subject to the same rules of construction and interpretation as 

other contracts. Moore v. Gillis, 239 Va. 657, 662, 391 S.E.2d 

255, 257 (1990). It is well established that the "plain meaning" 

rule is to be employed when interpreting contracts. Appalachian 

Power Co. v. Greater Lynchburg Transit Co., 236 Va. 292, 295, 374 

S.E.2d 10, 12 (1988). Clear and explicit language in a contract 

is to be understood in accord with its ordinary meaning, and, if 

the meaning is plain when read, the instrument must be given 

effect accordingly. Moore, 239 Va. at 662, 391 S.E.2d at 257. 

 In the agreement entered into by the parties, appellee 
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relinquishes all interest in appellant's real estate in exchange 

for payment of $6,000, or one-third of the value of the real 

estate, whichever is greater, upon the death of appellant. The 

payment is to be in lieu of dower and is to be paid on 

appellant's death. The trial court has determined, and we agree, 

that the "plain reading of the express language of the agreement 

shows that it is limited to relinquishment of property rights by 

[appellee] upon death of [appellant] . . . the agreement does not 

address relinquishment of marital property rights upon the 

breakup of the marriage." 

 "Where, as here, the intention of the parties has been 

stated plainly, a court may not fashion a different agreement for 

them under the guise of contract interpretation." Moore, 239 Va. 

at 662, 391 S.E.2d at 257. Accordingly, we find that the trial 

court properly determined that the parties' antenuptial agreement 

has no effect on equitable distribution of the marital estate. 

Having concluded that the trial court properly addressed the 

antenuptial agreement, we conclude that the trial court 

appropriately considered the prescribed factors enumerated in 

Code § 20-107.3(E). 

Marital Share of Appellant's Federal Government Pension

 Code § 20-107.3(G) provides that no marital award of pension 

benefits "shall exceed fifty percent of the marital share of the 

cash benefits actually received . . . ." "Marital share" is 

defined in that section as "that portion of the total interest, 
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the right to which was earned during the marriage and before the 

last separation of the parties . . . ." This provision is 

mandatory and can be implemented through the use of a simple 

formula. "The number of years that the spouse was in the pension 

plan while in the marriage serves as the numerator and the total 

number of years in the pension plan serves as the denominator. 

This fraction establishes the marital share of the pension as 

defined by the statute." Mosley v. Mosley, 19 Va. App. 192, 198, 

450 S.E.2d 161, 165 (1994). This fraction is in turn to be 

multiplied by the percentage of the marital share awarded to the 

spouse, which may not exceed fifty percent of the marital amount. 

Id. This formula serves to diminish the percentage of a 

wife's/husband's pension the spouse will receive as 

wife's/husband's employment continues and retains the fifty 

percent of the marital share limitation. 

 Here, the court has properly employed this formula in 

calculating the marital share and the appellee's benefit given 

the court's award of thirty-three percent of appellant's pension 

to appellee. Accordingly, we find the court did not err in 

calculating the marital share. 

 Affirmed.