COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Annunziata Argued at Alex andria, Virginia

GORDON ARTHUR SCHROETER MEMORANDUM OPINION * BY v. Record No. 2608-98-4 JU DGE JAMES W. BENTON, JR. DECEMBER 28, 1999 ALYCE P. SCHROETER

FROM THE CIRCUIT COUR T OF FREDERICK COUNTY John R. Pros ser, Judge William B. Allen, III (Amy B. Tisinger; Allen & Allen, P.C., on brief), for appellant. Michelle M. Jones (R obert T. Mitchell, Jr.; Hall, Monahan, Engle, Mahan & Mitc hell, 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 co ntends that the tr ial judge erred in determining ch ild custody, visitation sc hedules, child support, allocation of ma rital debts when decreeing as to the pr operty of the parties, and attorn ey's fees. For the re asons that follow, we affirm the decree. Gordon Arthur Schr oeter and Alyce P. Schroeter were married in 1994 and sepa rated in 1997. One child was bo rn during the marriage. At th e trial of the divorce pr oceeding, the husband and wife stipulated that the divorce shou ld be granted on the groundthat they had lived ap art without inte rruption or co habitation for more than one year. Th ey also stipulated th at each would retain the tangible personal property in hi s or her posses sion. Both parties presente d evidence and ore tenus testimony concerning custody and visita tion of their ch ild, child support, equitable distribution of th eir property, and attorney's fees.

I. "[U]pon decreein g a divorce, . . . the [t rial judge] may make such further decree as [the judge] shall deem expedient concerning the custody or visitati on and support of the minor childr en of the parties." Code § 20 -107.2. "The author ity granted the trial [judge] by Code § 20 -107.2 to de termine custod y and require support of infant chil dren in a divo rce action is a matter of judicial discretion to be exercised with the child' s welfare as the paramount co nsideration." D'Auria v. D'Auria , 1 Va. App. 455, 461, 340 S.E.2d 164, 168 (1986). Furtherm ore, our review of custody decisi ons 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.

- 2 -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

- 3 -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

- 4 -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

- 5 -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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