COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

MICHAEL E. PRESTON 

 MEMORANDUM OPINION** BY 

v. Record Nos. 0071-97-4 and JUDGE CHARLES H. DUFF 

 0175-97-4 JANUARY 20, 1998 

 

MARY ELIZABETH PRESTON 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Judy A. Dugger for appellant. 

 Beth A. Bittel (Law Offices of Beth A. 

Bittel, on brief), for appellee. 

 Michael E. Preston (husband) appeals the decision of the 

trial court finding that Mary Elizabeth Preston (wife) did not 

desert the marriage. Husband also contends that the trial court 

erred in finding that the parties separated sometime in May 1995 

rather than on October 28, 1994; erred in awarding spousal 

support to wife; erred in the allocation of costs and fees 

arising from the commissioner's hearing and trial; and erred in 

failing to award sanctions against wife's attorney. By way of 

cross-error, wife contends that the trial court erred by refusing 

to impute income to husband for the calculation of child and 

spousal support and abused its discretion by failing to award her 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 

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

designated for publication. 
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sufficient attorney's fees. We find husband's contentions to be 

without merit and award additional attorney's fees to wife for 

expenses incurred on this appeal. We find no error in the trial 

court's refusal to impute income to husband at the time of trial. 

 Background

 The parties were married in 1972 and had four children. The 

trial court found that husband made the majority of the monetary 

contributions while wife made the majority of the nonmonetary 

contributions during the marriage. The evidence on the ground of 

divorce was heard by a commissioner in chancery. Based upon the 

commissioner's recommendation, the trial court denied husband's 

alleged grounds of desertion by wife and granted wife a divorce 

on the basis of a one-year separation. Evidence on the issues of 

equitable distribution, spousal and child support were heard by 

the trial court. 

Desertion

 The trial court did not err in confirming the commissioner's 

finding that husband failed to prove that wife deserted the 

marriage when she moved from the marital bedroom in October 1994. 

 While the report of a commissioner in 

chancery does not carry the weight of a 

jury's verdict, it should be sustained unless 

the trial court concludes that the 

commissioner's findings are not supported by 

the evidence. This rule applies with 

particular force to a commissioner's findings 

of fact based upon evidence taken in his 

presence . . . . 

Jamison v. Jamison, 3 Va. App. 644, 645-46, 352 S.E.2d 719, 720 
 3 

(1987) (citations omitted). 

 Wife testified that she wanted husband to seek counseling, 

and moved from the marital bedroom in October 1994 when he 

returned from a trip to his parents because "I felt like I had to 

show him how serious I felt about him seeking some kind of help." 

 She testified that she had not formed the intent to end the 

marriage at that point. 

 Desertion requires the break off of marital cohabitation 

with the intent to desert. See Petachenko v. Petachenko, 232 Va. 

296, 298-99, 350 S.E.2d 600, 602 (1986). Merely ceasing sexual 

relations does not constitute desertion. See id. at 299, 350 

S.E.2d at 602. Instead, when sexual relations are willfully 

withdrawn without just cause or excuse, desertion requires "the 

breach of other significant marital duties." Jamison, 3 Va. App. 

at 648, 352 S.E.2d at 722. 

 In Jamison, the wife moved out of the marital bedroom and 

lived in a different room for a number of years. She withdrew 

from sexual relations and no longer washed, cleaned or prepared 

food for the husband. The husband assumed the cleaning duties 

for himself and the children. The family ate together no more 

than six times a year. The trial court found the wife had not 

deserted the husband because the couple had continued to live 

together and have "minimal family contacts." Id. at 645, 352 

S.E.2d at 720. 

 On appeal, we reversed, holding that it was not necessary to 
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find that the spouse neglected all marital duties, but instead 

neglected "significant marital duties, which results in the 

practical destruction of homelife in every sense." Id. at 648, 

352 S.E.2d at 722. 

 In this instance, there was no evidence of a total breakdown 

of the family's homelife between October 28, 1994 and May 1995. 

Wife testified that she continued to care for the home and 

family, including husband. The couple's son corroborated wife's 

testimony that she continued to do husband's laundry, cleaning 

and cooking on a daily basis. The son testified further that his 

father and mother ate with the children regularly. Therefore, 

after moving out of the marital bedroom, his mother continued to 

perform significant marital duties. 

 The son testified that the household changed noticeably in 

the spring of 1995, after husband presented wife with a proposed 

settlement agreement. This change continued through the summer 

of 1995 and through the 1995 Thanksgiving and Christmas holidays 

when the son returned from college. There was a marked 

difference in his father's participation in the holidays that 

year compared to the year before. 

 While husband argued that the son's testimony concerning 

events after May 1995 was not credible because the son did not 

live in the house full time after leaving for college, husband 

admitted that the son did not leave for college until August 

1995. Thus, the son had the time and opportunity to observe any 
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noticeable change in the parties' interaction after husband 

presented the proposed agreement. 

 Husband contended that the commissioner failed to adequately 

consider the daughter's testimony. In light of the daughter's 

age at the time of the events and her lack of specific and clear 

testimony, the commissioner did not err in giving minimal weight 

to the daughter's testimony. We find no merit in husband's 

contention that the commissioner improperly limited his 

cross-examination of the son concerning his absence from the home 

after May 1995, as the only limitation imposed by the 

commissioner barred husband's attorney from asking the son 

whether he had been pressured or coached concerning his hearing 

testimony. 

 Therefore, we affirm the trial court's finding that wife did 

not desert the marriage in October 1994. 

Separation Date

 Credible evidence established that the parties separated 

sometime during May 1995 when husband presented wife with a 

proposed settlement agreement. Neither party presented evidence 

establishing with greater specificity when during May the final 

separation occurred, and the commissioner was not required to 

make a finding in the absence of evidence sufficient to support 

it. See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 

550 (1987). 

 Moreover, husband failed to demonstrate any harm resulting 
 6 

from the alleged error in failing to identify a specific date for 

the separation. Husband challenged the classification of certain 

property based upon his assertion that the parties separated in 

October 1994, but he made no similar argument concerning the lack 

of a specific date in May. 

Spousal Support

 Husband argues that the trial court erred in awarding 

spousal support to wife. As noted above, we find no error in the 

court's determination that wife did not desert the marriage. 

Even so, Code § 20-107.1 does not preclude an award of spousal 

support in instances of desertion. If the trial court has 

considered the parties' needs and abilities and the statutory 

factors set out in Code § 20-107.1, its decision to award spousal 

support will not be disturbed absent an abuse of discretion. See

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 

(1986). 

 "The judgment of the trial court concerning the extent to 

which the wife's earning capacity should affect spousal and child 

support awards will not be set aside unless it appears from the 

evidence that such judgment is plainly wrong or without evidence 

to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375 

S.E.2d 374, 377 (1988). The trial court did not err in refusing 

to impute income to wife. Wife was employed, and husband did not 

demonstrate that wife was underemployed. While husband argued 

that wife could earn more as a teacher, he failed to present 
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evidence that there were teaching positions for which wife was 

currently qualified. 
 8 

Equitable Distribution

 As the trial court did not err in determining that the 

parties' final separation occurred in May 1995, it did not err in 

classifying $10,000 of the $23,000 NationsBank account acquired 

between October 28, 1994 and May 1995 as marital property. 

 Husband acknowledged that the $6,000 NationsBank account was 

marital property, and he may not now challenge the court's 

classification of that account as marital property. 

 The trial court did not err in classifying the Dodge Colt 

acquired by husband in May 1995 as marital property. Husband 

failed to prove when he purchased the car or when he presented 

wife with the proposed settlement agreement. In addition, 

credible evidence supported the court's determination of the 

car's value. While husband testified that the car was damaged in 

an accident, the trial court was not required to accept his 

testimony that he "might get half" of its NADA book value. 

 In his Exhibit 3, husband asserted that wife owed him 

approximately $7,000 for mortgage, telephone, gas, electric, 

water and cable expenses incurred during 1996 while both parties 

resided in the marital residence. The trial court ruled that 

each party was to assume one-half these debts. While husband 

objected to the final decree on the basis of "the rulings on the 

overdue house bills and other debts," it is not clear that 

husband raised a claim that wife reimburse any portion of the 

$32,000 in payments. Assuming arguendo that the issue was 
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properly preserved, husband has not demonstrated reversible 

error. He was the sole wage-earner until March 1995, and earned 

at least twice what wife earned after that point. Requiring 

husband to continue to support the family as he had done 

throughout the marriage was not an abuse of discretion. 

 Finally, husband failed to demonstrate error in the trial 

court's valuation and distribution of the parties' personal 

property. The trial court was not required to accept husband's 

unsubstantiated assertions of the value of the items of personal 

property. Whereas wife submitted supporting documentation for 

items claimed to be her separate property, husband testified in 

general terms and did not establish that the items claimed by him 

as family heirlooms were gifts only to him. 

Allocation of Costs and Fees

 The record indicated that wife sought to avoid the contested 

hearing before the commissioner, but that husband refused to go 

forward on no-fault grounds. The commissioner's affidavit 

indicated that husband's attorney used well over half the total 

hearing time. Wife ultimately was awarded a divorce on no-fault 

grounds. In addition, husband was the primary wage-earner 

throughout the marriage and had the greater income at the time of 

trial. Therefore, husband did not demonstrate error in the 

court's decision to allocate to him the greater portion of the 

expenses incurred in the commissioner's hearing or order him to 

pay $5,000 in wife's attorney's fees. 
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Sanctions on Wife's Attorney

 Whether to impose sanctions under Code § 8.01-271.1 is a 

matter left to the discretion of the trial court. See Oxenham v. 

Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). The record 

indicates that wife's attorney did not pursue the issue of the 

Putnam account at the December 20, 1996 hearing when the 

possibility of a discrepancy in her understanding of that account 

was brought to her attention. Husband did not demonstrate an 

abuse of discretion in the denial of sanctions. 

Imputation of Income to Husband 

 The trial court considered the statutory factors prior to 

determining whether to impute income to husband in connection 

with the award of spousal support to wife. While husband was 

earning substantially less than he had at other times during the 

marriage, he also presented evidence that his lower earnings were 

the result of the downturn in the defense industry. Because the 

court's decision was supported by evidence, its failure to impute 

additional income to husband as of the time of trial was not 

clearly erroneous. See Alphin v. Alphin, 15 Va. App. 395, 402, 

424 S.E.2d 572, 576 (1992). 

Award of Attorney's Fees to Wife

 Wife was awarded $5,000 of her attorney's fees, which 

totalled more than $38,000. The record indicates that both 

parties vigorously litigated this matter. While husband had the 

greater income, he also was ordered to pay costs associated with 
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the commissioner's hearing, as well as child and spousal support. 

 In light of all the issues and the parties' respective abilities 

to pay, the award was not unreasonable or a clear abuse of 

discretion. 

 Wife also seeks an award of appellate attorney's fees. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996). 

 Husband's appeal was without merit, and we find that wife is 

entitled to an award of appellate attorney's fees. Therefore, we 

remand this matter to the trial court for the limited purpose of 

determining and awarding the amount of attorney's fees incurred 

by wife in this appeal. See id. at 694-95, 479 S.E.2d at 100. 

Accordingly, the decision of the circuit court is affirmed, and 

the case is remanded for the determination of wife's appellate 

attorney's fees. 

 Affirmed and remanded.