COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Senior Judge Hodges 

FREDERICK M. SAXTON 

 MEMORANDUM OPINION* 

v. Record No. 3179-01-1 PER CURIAM 

 APRIL 30, 2002 

SHERRI J. SAXTON 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 (Michael S. Weisberg; Weisberg & Zaleski, 

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

 (J. Roger Griffin, Jr.; George A. Christie; 

Christie & Kantor, P.C., on brief), for 

appellee. 

 By decree dated October 23, 2001, the trial court awarded 

Sherri J. Saxton (wife) a divorce a vinculo matrimonii on the 

ground of adultery committed by Frederick M. Saxton (husband). On 

appeal, husband contends the trial court erred in: (1) awarding 

the marital residence to wife; (2) holding husband solely 

responsible for paying the second mortgage; (3) allotting wife 

fifty percent of the "Mainstay" investments and requiring payment 

within twelve months; (4) failing to apportion to husband any 

tangible personal property in the residence; and (5) requiring 

husband to pay attorney's fees and costs. Upon reviewing the 

record and the parties' briefs, we conclude that this appeal is 

 

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

designated for publication.
without merit. Accordingly, we summarily affirm the decision of 

the trial court. Rule 5A:27. 

BACKGROUND

 On appeal, "we view the evidence and all reasonable 

inferences in the light most favorable to the prevailing party 

below . . . ." Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 

S.E.2d 857, 859 (1992). So viewed, the evidence proved that the 

parties were married in 1980. Two children were born of that 

marriage, one of whom is still a minor. The parties separated on 

December 21, 1998, when husband left the marital residence. On 

January 21, 1999, wife filed a bill of complaint seeking a divorce 

on the ground of, inter alia, adultery. 

 On July 25, 2000, a commissioner in chancery conducted an ore

tenus hearing. He filed his report on June 12, 2001. In it, he 

found by clear and convincing evidence that husband committed 

adultery with Jeanne Evans, one of his employees, and 

recommended wife be granted a divorce on that basis. The 

commissioner further recommended that the marital residence be 

deeded to wife, that wife be solely responsible for payment of 

the first mortgage, that husband be solely responsible for 

payment of the second mortgage, that wife not receive spousal 

support, and that the Mainstay accounts, which husband 

unilaterally redeemed, be equally divided and that husband pay 

wife her share within twelve months. The commissioner also 

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recommended that husband pay wife nearly half of her attorney's 

fees and costs. 

 On June 19, 2001, husband filed written exceptions to the 

commissioner's recommendations regarding the marital residence, 

the second mortgage, the Mainstay investments and repayment 

schedule, and attorney's fees and costs. On June 21, 2001, 

husband filed the following additional exception: 

The Defendant objects and excepts to the 

Commissioner's failure to address the 

equitable distribution of tangible marital 

property in the marital residence in the 

context of the other recommendations by the 

Commissioner relative to the division of the 

marital property. 

 Wife excepted to the failure to recommend spousal support. 

She also contended the recommended amount for attorney's fees 

and costs was inadequate. 

 By letter opinion dated August 17, 2001, the trial court 

overruled all exceptions other than husband's exception relating 

to the distribution of the personalty in the residence. The 

trial court sustained that exception and directed the 

commissioner to "file a supplemental report on this issue" 

without hearing further evidence. On August 29, 2001, the 

commissioner filed a supplemental report. On October 23, 2001, 

the trial court entered a final order nunc pro tunc September 

28, 2001, confirming and adopting the commissioner's 

recommendations. 

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ANALYSIS

 Husband combined his arguments relating to the first three 

issues, namely, awarding the marital residence to wife, holding 

husband solely responsible for the second mortgage and awarding 

wife fifty percent of the Mainstay investment accounts. Husband 

characterized those decisions as punitive. 

 Code § 20-107.3(C) authorizes the court to order the 

transfer of jointly owned marital property based upon a 

consideration of the factors listed in subsection (E) of that 

statute. "Fashioning an equitable distribution award lies 

within the sound discretion of the trial judge and that award 

will not be set aside unless it is plainly wrong or without 

evidence to support it." Srinivasan v. Srinivasan, 10 Va. App. 

728, 732, 396 S.E.2d 675, 678 (1990). "Unless it appears from 

the record that the trial judge has not considered or has 

misapplied one of the statutory mandates, this Court will not 

reverse on appeal." Ellington v. Ellington, 8 Va. App. 48, 56, 

378 S.E.2d 626, 630 (1989). 

The House

 In overruling husband's exception to the recommendation 

that wife be awarded the marital residence, the trial court 

noted, inter alia, "the twenty-year marriage," wife's "role as 

homemaker and primary caretaker of the children, her other 

substantial non-monetary contributions to the marriage," the 

effect husband's "pre-separation adultery had on the marriage" 

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and the fact that wife and children have occupied the house 

since separation. 

 The marital residence had a value of $120,000, with a balance 

of $60,000 remaining on the mortgage. In its decree, the trial 

court explained that it "considered each of the elements in 

Section 20-107.3(E)" prior to awarding the marital residence to 

wife, who was to "be solely responsible for payment of the first 

mortgage and all other household related expenses." 

Second Mortgage Liability

 Code § 20-107.3(C) provides, in part, that "[t]he court 

shall also have the authority to apportion and order the payment 

of the debts of the parties, or either of them, that are 

incurred prior to the dissolution of the marriage, based upon 

the factors listed in subsection E." "The purpose and nature of 

the debt, and for and by whom any funds were used, should be 

considered in deciding whether and how to credit or allot debt." 

Gamer v. Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623 

(1993). 

 Husband admitted in his testimony before the commissioner 

that he did not ask wife if he could sign her name to the 1997 

second mortgage. The commissioner found that husband was not a 

credible witness and that he obtained the proceeds from the second 

mortgage without the knowledge or implied consent of wife. In 

upholding the recommendation and overruling husband's exception, 

the trial court relied, in part, on husband's "inability to 

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account for his use of the proceeds from the second deed of 

trust." The trial court also relied upon evidence suggesting that 

husband appropriated those funds for non-marital purposes 

constituting waste. 

Division of Mainstay Accounts

 The evidence demonstrated that husband redeemed six 

Mainstay investment accounts valued at $38,533.09. The 

commissioner ruled that the accounts were marital property. 

After hearing evidence and considering the "timing of 

[husband's] use of the assets and his [extramarital] affair," 

the commissioner found that husband's use of those funds 

amounted to "a waste of marital assets" in that there was 

"simply no proof that he used these funds to in any way assist 

[wife]." As a result, the commissioner recommended that wife 

was entitled to fifty percent of the value of the redeemed 

accounts and that husband pay her within twelve months of the 

entry of the final decree. 

 In overruling husband's objection to the commissioner's 

recommendation, the trial court remarked on the commissioner's 

observation that husband's testimony lacked credibility and 

agreed with the commissioner's findings after "[h]aving read the 

transcript." "[T]he trier of fact ascertains a witness' 

credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

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witness' testimony." Anderson v. Anderson, 29 Va. App. 673, 

686, 514 S.E.2d 369, 376 (1999). 

 The trial court's decision regarding the above-referenced 

subjects was an exercise of sound discretion. There is no 

presumption favoring an equal division of marital property. See 

Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831 

(1986). We recognize that "the trial court's job [in reviewing 

an equitable distribution award] 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." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 

870 (1990). 

 The trial court stated that it considered all of the factors 

contained in Code § 20-107.3(E) and indicated its approval of an 

award equaling "about an 80/20 division." Moreover, in overruling 

objections to the commissioner's report, the trial court did not 

find "the overall distribution of the marital property to be 

punitive." The award was supported by the evidence and was not 

plainly wrong. Accordingly, the trial court did not abuse its 

discretion or commit reversible error. 

Tangible Personal Property

 In ruling on husband's exception to the commissioner's 

report regarding personalty in the marital residence, the trial 

court explained: 

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Only four items of tangible personalty were 

mentioned during the hearing: a couch in 

need of re-upholstering and a table in need 

of refinishing, a "depression" glass 

collection of unknown extent or value, and 

some sunroom furniture that was purchased 

four or five years ago for $3500. [Husband's 

attorney] is correct that the Commissioner 

made no specific recommendation about this 

property. Perhaps the Commissioner intended 

it go to [wife] with the residence. Perhaps 

he applied the maxim de minimis non curat

lex. Perhaps he made no recommendation 

because he did not believe this to be an 

issue in the suit. 

(Citations to transcript pages omitted). 

 Because the commissioner failed to apportion these items, 

the trial court sustained husband's objection and directed the 

commissioner to file a supplemental report. In it, the 

commissioner stated: 

 Your Commissioner in his consideration 

of this case, considered this particular 

matter to be a non-issue since there was no 

evidence presented by either side as to the 

current value, if any, of these items which 

were purchased a number of years ago. 

 Your Commissioner sees no reason to 

have these items removed from the marital 

residence and so recommends. 

 As a result, the trial court ordered in the final decree 

that wife retain all furnishings in the marital home. 

In considering valuation of the marital 

estate, we have held that Code § 20-107.3 

"'mandates' that trial courts determine the 

ownership and value of all real and personal 

property of the parties." Nevertheless, 

"consistent with established Virginia 

jurisprudence, the litigants have the burden 

to present evidence sufficient for the court 

to discharge its duty." 

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Johnson v. Johnson, 25 Va. App. 368, 373, 488 S.E.2d 659, 662 

(1997) (quoting Bowers v. Bowers, 4 Va. App. 610, 617, 359 

S.E.2d 546, 550 (1987)). 

 Husband presented no evidence at the ore tenus hearing as 

to how many and what items of marital personal property were in 

the house and their present value. Therefore, the commissioner 

and trial court were unable to classify, valuate, consider and 

distribute that property. Accordingly, the trial court did not 

abuse its discretion in ordering the unnamed, unvalued 

personalty to remain in the marital residence. 

Attorney's Fees and Costs

 Any award of attorney's fees and costs to a party rests 

with the sound discretion of the trial court and will only be 

disturbed where there has been an abuse of discretion. See 

Rowand v. Rowand, 215 Va. 344, 346-47, 210 S.E.2d 149, 151 

(1974). 

 Wife is a teacher, and husband owns a restaurant. Although 

the record indicated that the parties earn substantially similar 

annual incomes, the commissioner believed husband's "probable 

income is greater than that" reported to the IRS. In 

recommending the award, the commissioner relied heavily on the 

fact that husband was at fault for the dissolution of the 

marriage. In ruling on the parties' exceptions, the trial court 

noted "[t]here was evidence that would have supported a finding 

that [husband uses his business as a] private bank and that his 

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income is much higher than he claims." The trial court found 

there was sufficient evidence of income and expenses to support 

the commissioner's recommendation that husband pay a portion of 

wife's fees and costs. Based upon our examination of the 

record, we find no abuse of discretion in the trial court's 

decision to order husband to pay nearly one-half of wife's 

attorney's fees and costs. 

Spousal Support

 Wife contends the trial court erred in failing to award her 

spousal support. 

 "A spousal support award is subject to the trial court's 

discretion and will not be disturbed on appeal unless plainly 

wrong or without evidence to support it." Howell v. Howell, 31 

Va. App. 332, 351, 523 S.E.2d 514, 524 (2000). 

 After "consider[ing] all of the factors enunciated in 

§ 20-107.1," the commissioner recommended that although wife is 

"entitled to spousal support, none should be paid" in view of 

the parties' apparently similar salaries and his other 

recommendations. Because the commissioner found that the 

parties' incomes were substantially similar, the trial court 

denied spousal support to wife, but reserved her right to later 

seek it. That decision was supported by credible evidence and 

was not plainly wrong. 

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 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed. 

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