COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Alexandria, Virginia 

JAMES J. MORTIMER 

v. Record No. 0418-95-4 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

TERI L. MORTIMER DECEMBER 29, 1995 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

James L. Berry, Judge 

 Marilyn Ann Solomon for appellant. 

 Mark Allen Vann (Chasler, Adrian and Bowman, 

P.L.C., on brief), for appellee. 

 On appeal from the trial court's decree of January 24, 1995, 

granting James Mortimer and Teri Mortimer a divorce a vinculo

matrimonii, James Mortimer contends that the trial court erred 

(1) in awarding custody of the parties' two minor children to Ms. 

Mortimer, (2) in awarding spousal support to Ms. Mortimer, (3) in 

determining the equitable distribution award, and (4) in awarding 

attorney's fees to Ms. Mortimer. We find no error and affirm the 

judgment of the trial court. 

 Mr. and Ms. Mortimer were married on August 25, 1984 in 

California. At the time of their separation on October 16, 1992, 

they had two minor children, Ashlee age 6 and Justin age 3. 

 On January 22, 1993, the parties entered into a joint 

consent decree giving both parents legal custody and Ms. Mortimer 

 

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

designated for publication. 
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physical custody. Under the decree, Mr. Mortimer was required to 

pay $650 a month in child support. 

 In June, 1993, Ms. Mortimer moved with the children to 

California without giving notice to Mr. Mortimer. Mr. Mortimer 

petitioned for a change in custody because Ms. Mortimer had taken 

the children out of the state in violation of his right to joint 

custody. The Juvenile and Domestic Relations District Court of 

Frederick County entered an order on November 24, 1993, giving 

both parents legal custody, but retaining physical custody with 

Ms. Mortimer. 

 On January 24, 1995, the parties were divorced a vinculo

matrimonii on the ground of a one year separation. The court 

awarded Ms. Mortimer physical and legal custody of the minor 

children, $758 a month in child support, $100 a month in spousal 

support, $1,564 lump sum payment, and $2,025 in attorney's fees. 

 First, Mr. Mortimer contends the trial court failed to 

properly apply Code § 20-124.3 in determining custody of Ashlee 

and Justin. He contends that Ms. Mortimer's moving to California 

with the children was a material change in circumstances 

justifying a change in custody to him. He argues that it is in 

the children's best interests to live with him and that they have 

suffered since their move to California. 

 We find no error in the trial court's award of custody to 

Ms. Mortimer pursuant to Code § 20-124.3. The trial court 

applied the factors from Code § 20-124.3 and "found none 
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significantly negative or overwhelmingly positive as regards to 

this matter to disturb the status quo." "Whether a change of 

circumstances exists is a factual finding that will not be 

disturbed on appeal if the finding is supported by credible 

evidence." Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 

41 (1986). 

 Second, Mr. Mortimer contends the trial court erred in 

awarding $100 a month spousal support to Ms. Mortimer. He argues 

that Ms. Mortimer is not entitled to spousal support because she 

caused the marriage breakup and she gave up a well-paying job 

with benefits to move to California. He additionally argues that 

he is unable to pay spousal support. We disagree. 

 The trial court considered all the factors in Code 

§ 20-107.1 and found no disqualifying circumstances barring an 

award. It further found that Mr. Mortimer had the ability to pay 

spousal support and that Ms. Mortimer needed support. "When the 

record discloses that the trial court considered all of the 

statutory factors, the court's ruling will not be disturbed on 

appeal unless there has been a clear abuse of discretion." 

Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 

(1992). 

 Third, Mr. Mortimer contends the trial court erred in 

determining the equitable distribution of the parties' marital 

property. "Fashioning an equitable distribution award lies 

within the sound discretion of the trial judge and that award 
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will not be set aside unless plainly wrong or without evidence to 

support it. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 

S.E.2d 675, 678 (1990) (citation omitted). The trial court found 

the marital assets received by Mr. Mortimer equaled $18,550 and 

the marital assets received by Ms. Mortimer equaled $8,950. The 

trial court ordered Mr. Mortimer to pay $6,471 in marital debts 

and a $1,564.50 lump sum payment to Ms. Mortimer to equalize the 

marital assets. This gave each party $10,514.50 of the marital 

assets. We find no error in the trial court's award. 

 Fourth, Mr. Mortimer contends the trial court erred in 

awarding Ms. Mortimer attorney's fees. He argues that he was 

punished for not accepting Ms. Mortimer's "Offer and Compromise." 

 We disagree. 

 A trial court has authority pursuant to Code § 20-103 to 

award attorney's fees to enable a spouse to maintain a suit. "An 

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

court's sound discretion and is reviewable on appeal only for an 

abuse of discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 

S.E.2d 554, 558 (1987) (citation omitted). An award of 

attorney's fees was appropriate under the circumstances because 

Mr. Mortimer refused the "Offer and Compromise" when he knew that 

he had insufficient evidence to warrant a change of custody. He 

thereby prolonged the litigation knowing Ms. Mortimer could ill 

afford additional attorney's fees. 

 We affirm the judgment of the trial court. 
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 Affirmed.