COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Alexandria, Virginia 

GORDON ARTHUR SCHROETER 

 MEMORANDUM OPINION* BY 

v. Record No. 2608-98-4 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 28, 1999 

ALYCE P. SCHROETER 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

John R. Prosser, Judge 

 William B. Allen, III (Amy B. Tisinger; 

Allen & Allen, P.C., on brief), for 

appellant. 

 Michelle M. Jones (Robert T. Mitchell, Jr.; 

Hall, Monahan, Engle, Mahan & Mitchell, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 This appeal arises from a final decree of divorce. Gordon 

Arthur Schroeter contends that the trial judge erred in 

determining child custody, visitation schedules, child support, 

allocation of marital debts when decreeing as to the property of 

the parties, and attorney's fees. For the reasons that follow, we 

affirm the decree. 

 Gordon Arthur Schroeter and Alyce P. Schroeter were married 

in 1994 and separated in 1997. One child was born during the 

marriage. At the trial of the divorce proceeding, the husband and 

wife stipulated that the divorce should be granted on the ground 
that they had lived apart without interruption or cohabitation for 

more than one year. They also stipulated that each would retain 

the tangible personal property in his or her possession. Both 

parties presented evidence and ore tenus testimony concerning 

custody and visitation of their child, child support, equitable 

distribution of their property, and attorney's fees. 

I. 

 "[U]pon decreeing a divorce, . . . the [trial judge] may make 

such further decree as [the judge] shall deem expedient concerning 

the custody or visitation and support of the minor children of the 

parties." Code § 20-107.2. "The authority granted the trial 

[judge] by Code § 20-107.2 to determine custody and require 

support of infant children in a divorce action is a matter of 

judicial discretion to be exercised with the child's welfare as 

the paramount consideration." D'Auria v. D'Auria, 1 Va. App. 455, 

461, 340 S.E.2d 164, 168 (1986). Furthermore, our review of 

custody decisions is controlled by the following well established 

principles: 

The trial [judge'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. It is appropriate that this be 

the rule governing our review of appeals 

because the trial judge was in a position to 

see and hear the witnesses, and to closely 

examine the evidence. As such, his findings 

are entitled to an appropriate degree of 

respect. 

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Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 

(1986). 

 Under equally well established principles, we review the 

evidence in the light most favorable to the party who prevailed 

below, in this case the wife. The ore tenus testimony 

concerning custody and the other issues raised at trial is 

summarized in a statement of facts. See Rule 5A:8. Our review 

of the statement of facts discloses that the issues that the 

husband raises on appeal were disputed by the parties. Indeed, 

the summary of the wife's testimony establishes that she 

contradicted the husband on most material issues. 

 In making his custody determination, the trial judge ruled 

"after hearing evidence ore tenus, and after consideration of 

all of the factors set forth in [Code] § 20-124.3." Upon our 

review of the summary of the testimony, we cannot conclude that 

the wife's testimony was incredible or did not plainly support 

the judge's ruling. See Douglas v. Hammett, 28 Va. App. 517, 

525, 507 S.E.2d 98, 102 (1998) (noting that when the trial judge 

determines the credibility of witnesses who testify ore tenus, 

we give that ruling great weight). 

 In reviewing the record, we find apt the following ruling 

in Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415 (1992): 

 Following extensive and detailed 

testimony by the various witnesses, the 

trial [judge] was in effect asked to 

evaluate the moral climate of the home [in] 

which [the child lived]. Especially in 

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light of the strict standard that governs 

this Court's review of the trial [judge's] 

final determinations, we do not find that 

the trial [judge] abused [his] discretion 

when [he] awarded the parties joint custody. 

Id. at 555, 419 S.E.2d at 418. This record in this case, 

likewise, fails to show an abuse of discretion. 

II. 

 The husband contends the trial judge also erred (1) "in 

[his] determination of the visitation schedule," (2) "in not 

considering the work related child care costs and expenses 

incurred by the [husband]," and (3) "in not granting a statutory 

deviation from the Child Support Guidelines for the costs and 

expenses for transportation to be incurred by the [husband]." 

The record does not reflect that the husband objected to any of 

the trial judge's rulings concerning visitation or child 

support. In accord with Rule 5A:18, "[w]e will not consider for 

the first time on appeal an issue that was not preserved in the 

trial court." Martin v. Martin, 27 Va. App. 745, 752, 501 

S.E.2d 450, 453 (1998). 

III. 

 Based upon findings regarding the parties' property and 

their debts and upon "consideration of all the factors set forth 

in [Code] § 20-107.3," the trial judge decreed as to the 

parties' property. 

 The record contains evidence that the husband's income and 

earning capacity were greater than the wife's. The husband also 

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had a larger share of assets. We find nothing in the record to 

support the husband's claim that the trial judge "erred in . . . 

the allocation of [the parties'] marital debt.'" 

 The statute does not contain a presumption of equal 

distribution of assets or debts. See Papuchis v. Papuchis, 2 

Va. App. 130, 132, 341 S.E.2d 829, 830 (1986). When, as in this 

case, the trial judge considers the statutory factors in making 

the determinations of equitable distribution, we will not 

reverse those decisions absent a showing of an abuse of 

discretion. See Robinette v. Robinette, 10 Va. App. 480, 486, 

393 S.E.2d 629, 633 (1990). 

IV. 

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

trial court's 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). This was a case in which issues of 

custody, visitation, child support, spousal support, and 

equitable distribution were contested at trial. We find no 

basis to conclude that the trial judge abused his discretion in 

awarding to the wife her attorney's fees. 

V. 

 Upon the wife's motion and because the husband raised a 

substantial number of meritless issues, we hold the wife is 

entitled to attorney's fees for this appeal. Accordingly, we 

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remand this case to the trial judge solely to award a reasonable 

attorney's fee in favor of the wife for this appeal. 

 For these reasons, we affirm the decree and remand for the 

limited purpose of awarding attorney's fees. 

 Affirmed and remanded. 

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