COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Coleman 

Argued at Richmond, Virginia 

W. BRYAN SETTLE 

 MEMORANDUM OPINION* BY 

v. Record No. 0935-01-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 26, 2002 

GERALDINE H. SETTLE 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Catherine C. Hammond, Judge 

 T. Lee Brown, Jr. (Parker, Pollard & Brown, 

P.C., on brief), for appellant. 

 Rose McC. Alexander for appellee. 

 *

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

designated for publication. 

 On March 7, 2001, the trial court awarded W. Bryan Settle 

(husband) and Geraldine H. Settle (wife) a no-fault divorce, 

pursuant to Code § 20-91(A)(9)(a). Husband appeals the trial 

court's award of spousal support and attorney's fees to wife, 

and its allocation of marital property. For the reasons that 

follow, we affirm the decision of the trial court. 

I.

Background

 The parties were married on December 24, 1985. During the 

marriage, wife had at least five employers. She missed some 

months of employment during her pregnancy and the infancy of the 
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parties' third child. As a result, she lost opportunities for 

advancement. During this period, husband did not make payments 

on the marital debt in wife's name and that debt fell 

substantially behind. 

 The parties separated in August 1999. Husband did not pay 

any child or spousal support until November 1999. On August 10, 

2000, wife filed for bankruptcy because husband stopped paying 

some of the joint debts of the parties. 

 Husband remained at the same employer for 12 years. His 

gross annual earned income was approximately $46,900 per year. 

During the parties' separation, husband incurred loans from his 

401(k) plan and finance companies to pay joint marital debts and 

child support. He also voluntarily contributed pre-tax dollars 

to his 401(k) account. 

 On September 3, 1999, husband filed for divorce. The 

circuit court held three hearings in this divorce case. On June 

5, 2000, it heard evidence related to custody matters. On 

August 14, 2000, it heard evidence on child support and 

temporary spousal support. On November 3, 2000, it considered 

evidence related to equitable distribution. 

 At the third hearing, the trial court determined that wife 

did not desert husband. In reaching its decision, the court 

considered evidence admitted during the earlier hearings on 

custody and support, noting that "there was quite a bit of 

testimony [at those hearings] about the reason for the 
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separation and conflict that existed in the family and in the 

marriage."1 The trial court "accept[ed] the testimony of Ms. 

Settle [from the earlier hearings] . . . [that she] was very 

frightened of [her] husband, and that she left because it was an 

intolerable conflict . . . ." The trial judge declined to hear 

additional testimony from husband and his corroborative witness, 

finding that husband had already testified regarding the issue 

of fault and that the testimony of husband's corroborative 

witness, as proffered, would not add anything to the evidence 

already presented. The trial court concluded "that there is 

insufficient evidence for a fault divorce." 

 The trial court found that the net equity in the marital 

residence was $16,000 and awarded the marital home to husband. 

Husband suggested that, in lieu of ordering him to pay wife 

$8,000 in equity, the court require him to pay additional 

amounts of their marital debt. 

 The court ordered the wife to pay marital debts to 

Associates National ($7,342) and Chase Bank ($3,384), totaling 

1

 At those earlier hearings, testimony of Hank Mitchell, 

Mary Farrell and Sharon Johnson corroborated wife's fright of 

husband and the "intolerable" situation. Mitchell testified 

that she observed wife crying during and after speaking with 

husband on the telephone. Farrell testified that she did not 

permit her daughters to play with the Settles' daughters because 

"[Mr. Settle] was always yelling." Johnson testified that in 

the summer of 1998, wife had told her that she wanted to leave 

husband. In addition, as the trial judge noted, wife testified 

that she left her husband because she was "frightened" of him 

and the situation was "intolerable." 
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$10,726. It ordered husband to pay the following marital debts, 

totaling $25,284: Bank of America 401(k) loan ($10,185); 

Washington Mutual ($4,923); Beneficial Finance ($3,714); Capital 

One ($3,218); and Crestar ($3,244). 

 The trial court also ordered husband to pay $300 per month 

in permanent spousal support, stating that it had considered all 

of the relevant factors of Code § 20-107.1 and cited the 

following reasons for its award: 

(i) [wife] is setting up a new home; (ii) 

she makes $7,000 less per year than 

[husband]; (iii) she contributed the 

majority of the child care responsibilities 

post-separation; and (iv) she contributed a 

great deal to the division of labor in the 

household pre-separation. 

From the bench, the trial judge noted that she "[c]onsider[ed] 

the duration of the marriage and the relative positions of the 

parties, especially the need of Mrs. Settle," as well as "the 

fact that [husband] was going to keep the house." The trial 

court also ordered husband to pay $1,000 of wife's attorney's 

fees. 

II.

Analysis

 Husband alleges that the trial court erred by: (1) 

determining the issue of fault solely from evidence admitted at 

the hearings regarding custody and child support; (2) refusing 

to admit husband's evidence regarding fault; (3) inequitably 

allocating all of the parties' marital debt to him; (4) failing 
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to consider all the statutory factors in awarding wife permanent 

spousal support; and (5) ordering him to pay a portion of wife's 

attorney's fees despite his alleged inability to pay the ordered 

spousal support. Finding each of these allegations to be 

without merit, we affirm the trial court's decision. 

A. Trial Court's Determination of Fault

 In reaching its decision that there was no marital fault in 

this case, the trial court considered testimony from the 

equitable distribution hearing, as well as the earlier hearings 

on custody, child support and temporary spousal support. 

Nevertheless, husband contends the trial court erred by: (1) 

basing its determination on marital fault solely on notes from 

the two earlier hearings; (2) its refusal to hear additional 

evidence from husband on the issue of fault; and (3) crediting 

wife's testimony that she was frightened of him and left because 

the conflict was intolerable. We disagree. 

First, we do not consider husband's contention that the 

trial court improperly considered evidence from the first two 

hearings because he made no objection below. Rule 5A:18. 

 Second, we find no error in the trial court's refusal to 

hear husband's testimony on the issue of desertion. Because 

husband did not proffer his expected testimony, we cannot, on 

appeal, conclude that his testimony would have been relevant to 

the issue of wife's intent in leaving the marital abode. See

Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 
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(2001) ("[P]arty must proffer or avouch the evidence for the 

record in order to preserve the ruling for appeal; otherwise, 

the appellate court has no basis to decide whether the evidence 

was admissible." (internal quotation and citation omitted)). 

 Likewise, we find that the trial court properly declined to 

hear the testimony of husband's witness because, as proffered, 

her testimony was not admissible on the issue of desertion. 

The admissibility of evidence is within the 

broad discretion of the trial court, and a 

ruling will not be disturbed on appeal in 

the absence of an abuse of discretion. 

Evidence is admissible if it tends to prove 

a matter that is properly at issue in the 

case . . . . 

Blain v. Commonwealth, 7 Va. App. 10, 16-17, 317 S.E.2d 838, 842 

(1988) (citations omitted). Where a spouse alleges desertion by 

a former spouse, the spouse must demonstrate an "'actual 

breaking off of the marital cohabitation'" and "'an intent to 

desert in the mind of the offender.'" Zinkhan v. Zinkhan, 2 Va. 

App. 200, 205, 342 S.E.2d 658, 660 (1986) (quoting Nash v. Nash, 

200 Va. 890, 893, 108 S.E.2d 350, 352 (1959)). Where the trial 

court finds that a spouse is justified in leaving the marital 

abode, it may not grant the other spouse a divorce on the ground 

of desertion. Kerr v. Kerr, 6 Va. App. 620, 623, 371 S.E.2d 30, 

32 (1988) (citing Graham v. Graham, 210 Va. 608, 616, 172 S.E.2d 

724, 730 (1970)); Brawand v. Brawand, 1 Va. App. 305, 310, 338 

S.E.2d 651, 653 (1986). 
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 In this case, the trial court ruled that wife was justified 

in leaving the marital home, finding that she was "very 

frightened" of him and the situation was intolerable. Because 

such justification is determinative on the issue of desertion, 

only evidence that tends to prove or disprove wife's 

justification is relevant and admissible on the issue of 

desertion.2

 Husband proffered that his witness would testify that he 

had been surprised and upset when his wife left him.3 In 

ascertaining wife's state of mind when she left the marital 

home, evidence of husband's reaction is irrelevant. In short, 

because husband did not demonstrate that his proposed evidence 

tended to prove that wife intended to desert him, the trial 

court did not abuse its discretion by refusing to admit it into 

evidence. 

 Finally, we find no merit in husband's contention that the 

trial court abused its discretion by crediting wife's 

uncorroborated testimony. Several witnesses corroborated wife's 

contention that she was frightened and left the marriage due to 

2

 The issue of physical separation of the parties was not 

before the court because the parties agreed that they did not 

cohabitate after their separation. Therefore, the only matter 

properly at issue regarding desertion is wife's intent. See

Kerr, 6 Va. App. at 623, 371 S.E.2d at 32 (noting that legal 

justification rebuts the intent to desert). 

3

 Husband also proffered that Nancy Graham would testify 

that the couple was separated continuously. Because this fact 

was not in dispute, testimony on this issue is irrelevant. 
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the intolerable conflict. Consequently, we will not disturb the 

court's decision on this issue. 

B. Allocation of Marital Debts

 Husband contends that the trial court erred in allocating 

all of the parties' joint marital debt to him. 

In reviewing an equitable distribution award 

on appeal, we have recognized that the trial 

court's job is a difficult one, and we rely 

heavily on the discretion of the trial judge 

in weighing the many considerations and 

circumstances that are presented in each 

case. A decision regarding equitable 

distribution . . . will not be reversed 

unless it is plainly wrong or without 

evidence to support it. 

Gilman v. Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768 

(2000) (internal citations and quotations omitted). 

Accordingly, we find no merit in husband's contention. 

 First, we note that the trial court did not allocate all of 

the marital debt to husband. In making this statement, husband 

ignores the portion of the court's order requiring wife to pay 

$7,342 in marital debt to Associates National and $3,384 in 

marital debt to Chase.4 Second, husband fails to articulate his 

 4

 Although the trial court did not specify its 

classification of these debts in its order, referring 

ambiguously to these debts as the "debts in [wife's] name" it 

had earlier ruled that "[the debts to Associates National and 

Chase are] marital debt. . . . There's no question about [their] 

classification whatsoever." See Richmond Dept. of Soc'l Servs. 

v. Carter, 28 Va. App. 494, 496, 507 S.E.2d 87, 88 (1998) 

(construing ambiguous language of court's order in light of the 

record). Husband does not appeal this classification, nor did 

he object to it before the trial court. 
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basis for claiming that the court's assignment of more than half 

of the marital debt to him is inequitable, and we cannot discern 

one. See Moran v. Moran, 29 Va. App. 408, 417-18, 512 S.E.2d 

834, 838 (1999) (finding no abuse of discretion in allocation of 

52% of marital debt to husband). Husband ignores the various 

equities balanced by the trial court in making its distribution, 

including its award of the marital home, which had $16,000 in 

equity, to husband. While the trial court allocated $25,284 of 

the marital debt to husband and only $10,726 to wife, it did not 

require him to pay wife her share of the equity in the marital 

home. Indeed, husband asked the court to allocate a greater 

share of the marital debt to him in lieu of awarding wife her 

share of the equity in the marital home. Accordingly, we cannot 

say that the court abused its discretion in its assignment of 

marital debt. 

C. Award of Permanent Spousal Support

i. Statutory Factors

 In determining spousal support, the trial court must 

consider all statutory factors. See Code § 20-107.1(E). 

Husband contends that the trial court did not consider his 

inability to pay, the parties' contributions to the well-being 

of the family, and the circumstances and factors contributing to 

the dissolution of the marriage and any grounds for divorce. 

See Code § 20-107.1(E),(E)(1), and (E)(6). He bases his 

conclusion on the absence of factual findings on each factor in 
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the record. He also claims that the trial court improperly 

cited wife's share of the child care responsibilities in making 

its determination. 

 We find no merit in husband's contentions. First, he errs 

in arguing that the trial court must make findings as to each 

factor. See Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 

422, 427 (1986) (holding that trial court is not required "to 

quantify or elaborate exactly what weight or consideration it 

has given to each of the statutory factors"). Rather, the 

court's determination to award spousal support, and the amount, 

"must have some foundation based on the evidence presented." 

Id. In this case, the trial court's order clearly states that 

it considered all of the factors of Code § 20-107.1 and 

specifically identified four factors that it had given 

particular weight in its decision. Moreover, in explaining her 

decision, the trial judge noted that while "there were some 

factors that stood out[,] [t]hat does not mean that I didn't 

consider all the factors . . . ." 

 Second, the record demonstrates that the court considered 

the circumstances and factors contributing to the dissolution of 

the marriage and any grounds for divorce, evidence of husband's 

ability to pay spousal support, and the parties' contributions 

to the well-being of the family. During the trial, the judge 

stated that she heard "quite a bit of testimony about the reason 

for the separation and conflict that existed in the family and 
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in the marriage." She also stated that "[husband's] ability to 

pay [and] the fact that he was going to keep the house had a 

bearing [on her decision to award $300 per month in spousal 

support to wife]," and her order notes that "[wife] makes $7,000 

less per year than [husband]." 

 The court's order also stated that it awarded spousal 

support, in part, because "[wife] contributed the majority of 

the child care responsibilities post-separation . . . [as well 

as] a great deal to the division of labor in the household 

pre-separation." While husband contends that the court's 

reliance on wife's child care responsibilities in awarding 

spousal support is error, he cites no legal authority in support 

of that contention, and we find none. Moreover, childrearing is 

a non-monetary contribution to the well being of the family. 

ii. Sufficiency of the Evidence

 Husband also claims that wife failed to demonstrate need. 

He argues that the evidence proved and the judge recognized that 

wife did not have need because her expenses were approximately 

equal to her income. We disagree. 

 The evidence supports the court's findings that, despite 

the fact that wife's statement of expenses was "not too far off 

of what her income is," wife was in need, and husband was able 

to pay $300 per month in support. Husband earns $47,000 per 

year, makes weekly contributions to his retirement fund, owns 

two cars and a house, and spends $425 per month for food, plus 
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$50 per month for lunch.5 In contrast, wife earns $40,000 per 

year, has no assets, owns one car and no home, was setting up a 

new home, and spends $600 per month on groceries for herself and 

her three children. The trial court, therefore, did not err in 

concluding that wife was in need and husband was able to pay. 

 In sum, we hold that "[the court's] decision [to award $300 

per month in spousal support to wife] was supported by the 

evidence relevant to [the] factors [enumerated in Code 

§ 20-107.1(E)]." Woolley, 3 Va. App. at 345, 349 S.E.2d at 427. 

Finding no abuse of discretion, we affirm the support award. 

D. Attorney's Fees

 Husband contends that the court abused its discretion in 

awarding wife counsel fees because: (1) he is unable to meet the 

obligation; and (2) the trial court's motive for making the 

award was improper. We disagree. 

 An award of attorney's fees is within the sound discretion 

of the trial court. Wilkerson v. Wilkerson, 214 Va. 395, 398, 

200 S.E.2d 581, 584 (1973). As noted in subsection C of this 

opinion, the record supports the trial court's finding that 

husband has an ability to meet wife's financial needs. 

Consequently, his claim that the court erred by awarding wife a 

portion of her counsel fees is without merit. 

 5

 While husband presented evidence that his expenses 

exceeded his income, the trial court was not required to accept 

this testimony. See Sandoval v. Commonwealth, 20 Va. App. 133, 

138, 455 S.E.2d 730, 732 (1995). 
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 Additionally, husband offers no evidence to support his 

contention that the trial court awarded counsel fees because 

wife's bankruptcy eliminated wife's debt to counsel. Indeed, 

the bankruptcy plan admitted at trial indicates that all 

unsecured creditors would receive approximately 100% of the 

present value of their allowed claims from the trustee. 

Accordingly, we affirm the court's award of $1,000 of wife's 

attorney's fees. 

 For the foregoing reasons, the decision of the trial court 

is affirmed6. 

Affirmed.

 6 The Court grants appellee's motion to include the 

statement of facts as an addendum to the appendix in this case.