COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

ANTOINETTE J. FERRIS 

v. Record No. 1617-94-2 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

CHARLES W. FERRIS, III MARCH 5, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 James Emmett Anderson, for appellant. 

 Denis F. Soden (Michael S. Huberman; 

Spinella, Owings & Shaia, on brief), for 

appellee. 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 

 In this domestic appeal, Antoinette J. Ferris (wife) argues 

that the trial court erred in: (1) awarding wife only twenty 

percent of the marital assets; (2) ordering wife to reimburse 

Charles W. Ferris, III (husband) for payments made by husband on 

marital assets during the pendency of the divorce; (3) 

classifying the parties' antique wooden bed as husband's separate 

property; (4) refusing to grant wife a continuance; (5) excluding 

husband's retirement plans from the marital estate and failing to 

award wife a percentage of those plans; (6) valuing the parties' 

condominium at the tax assessment value; (7) ordering wife to pay 

husband twenty percent of the negative equity in the parties' 

condominium; and (8) failing to award wife spousal support and 

attorney's fees. For the reasons that follow, we affirm the 
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trial court. 

BACKGROUND

 The parties married on July 8, 1988 in Chesterfield County. 

 After the marriage, wife adopted husband's daughter, Betsy, and 

husband adopted wife's daughter, Rachel. The parties separated 

on January 23, 1992, when husband left the marital residence. 

 Before the marriage, wife worked full time as a hairdresser 

and earned $20,000 in 1987. Her assets included a 1988 Ford 

Escort and some antique furniture. Husband worked as an engineer 

for C&P Telephone Co., earning a salary of $56,000 per year. 

Husband's assets at the time of the marriage included a house on 

Ewes Court in Richmond, assessed at $112,200; a stock option 

plan; a 401(k) plan; a Bell Atlantic retirement plan; and 

insurance proceeds and settlement proceeds of over $490,000 

received after the death of his first wife. 

 During the marriage, the parties acquired three additional 

properties: a house on Stuart Avenue in Richmond, assessed at 

$216,000; a condominium in Ocean View, assessed at $79,470; and a 

lakefront property in Louisa County, assessed at $108,000. Both 

parties purchased the Stuart Avenue and Louisa County properties 

and owned them as tenants by the entirety. Husband began 

purchasing the condominium before the marriage, and the original 

deed of trust is solely in his name. After the marriage, husband 

gifted the condominium to himself and wife as tenants by the 

entirety. 
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 Husband was the primary source of income, and wife 

maintained the household and cared for the children. After 

quitting her full-time job in August 1988, wife continued to work 

part time at home. Husband testified that she made between $150 

to $200 per month cutting hair at home while wife testified that 

she brought in about $500 per month. Wife also participated in 

renovating the Stuart Avenue house. 

 After the parties separated, husband continued making 

mortgage, insurance, tax, and utility payments on the parties' 

properties. Husband testified that the mortgage obligations 

alone totaled over $70,000 during the period of separation. 

Additionally, husband paid off the parties' credit card debt, 

which totaled over $7,300. Although wife did not make any 

mortgage, insurance, or tax payments, she paid utility bills on 

the Stuart Avenue property, where she was living, beginning in 

June 1992. She also paid some utility bills on the Louisa County 

and Ocean View properties. After the parties separated, wife 

obtained full-time employment at a car dealership, where she 

averages $1,100 per month. 

 Husband presented numerous exhibits detailing the parties' 

assets. Husband estimated that his monetary contributions 

represented ninety-seven percent of the total financial 

contributions and that his nonmonetary contributions were 

sixty-one percent. Husband's nonmonetary contributions included 

performing repairs on the parties' properties, keeping financial 
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records, helping the children with their homework, and helping 

the children get ready for bed and school. Wife's testimony was 

that her nonmonetary contributions to the marriage included 

housekeeping, child care, and helping to renovate the parties' 

Stuart Avenue home. 

 In a letter opinion dated February 1, 1994, the trial court 

awarded husband a divorce based on separation for more than one 

year; granted husband eighty percent and wife twenty percent of 

the marital assets; ordered wife to pay twenty percent of the 

negative equity on the Ocean View condominium; ordered wife to 

reimburse husband for fifty percent of maintenance payments made 

during the pendency of the divorce; and awarded husband his 

401(k) plan and Bell Atlantic retirement plan. In a July 25, 

1994 order, the trial court offset the sums owed by wife against 

her twenty percent share of the marital estate; credited her with 

one-half of the tax benefits on the marital property and the 

utility bills she paid; and ordered husband to pay wife a 

monetary award of $16,370.55. 

DIVISION OF MARITAL ASSETS

 Wife argues that the trial court erred in awarding her only 

twenty percent of the marital assets in light of her substantial 

contributions to the marriage. 

 In dividing marital property and determining the amount of 

any monetary award, the trial court must consider the factors in 

Code § 20-107.3(E). Alphin v. Alphin, 15 Va. App. 395, 403, 424 
 5 

S.E.2d 572, 576 (1992). "Unless it appears from the record that 

the chancellor has abused his discretion or has failed to 

consider or has misapplied one of the statutory factors, his 

determination will not be reversed on appeal." Klein v. Klein, 

11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). Virginia law 

does not require an equal division of marital assets. Papuchis 

v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830-31 (1986). 

 In this case, the record supports the trial court's division 

of the marital property--eighty percent to husband and twenty 

percent to wife. The duration of this marriage was only 

three-and-one-half years. The evidence established that 

husband's monetary contributions to the marriage and the 

acquisition and maintenance of marital property were 

substantially greater than wife's. Specifically, husband 

contributed significant amounts of his separate property to buy 

the Stuart Avenue house, the Louisa County house, and the Ocean 

View condominium. Husband's nonmonetary contributions to the 

marriage were also significant in that he performed repairs, kept 

the parties' financial records, and also cared for the children. 

 Wife's monetary contributions to the marriage were minimal, and 

her nonmonetary contributions included caring for the children 

and performing household duties. Under these circumstances, the 

trial court did not abuse its discretion in determining the 

weight to be accorded to the parties' contributions and in 

dividing the marital estate. 
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REIMBURSEMENT OF POST-SEPARATION EXPENSES

 Wife next argues that the trial court erred in ordering her 

to reimburse husband for fifty percent of mortgage, insurance, 

tax, and utility payments made by husband on marital property 

during the pendency of the divorce. We disagree. 

 A trial court must consider "[t]he contributions, monetary 

and nonmonetary, of each party in the acquisition and care and 

maintenance of such marital property of the parties" in 

determining the amount of any monetary award. Code 

§ 20-107.3(E)(2) (emphasis added). Additionally, Code 

§ 20-107.3(C) provides that the trial court has 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 

marriage." No abuse of discretion occurred in this case because 

the trial court also credited wife with utility payments she made 

on the parties' properties in determining the amount of the 

monetary award. Wife's argument that husband used marital funds 

to pay post-separation expenses is without merit as the evidence 

clearly established that husband used his separate, 

post-separation earnings to make payments on the marital 

property. 

CLASSIFICATION OF ANTIQUE WOODEN BED

 Wife asserts that the trial court misclassified an antique 

wooden bed owned by the parties. 

 On August 28, 1989, the parties purchased an antique wooden 
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bed from Gates Antiques for $3,807.50 with marital funds. 

Husband estimated the value of the bed at $3,500 and admitted 

that the bed was marital property. The trial court classified 

the bed as husband's separate property and awarded the bed to 

him. Additionally, during the marriage, husband bought wife a 

diamond ring for $8,710.32 on July 5, 1989, with marital funds. 

The trial court found that the ring was wife's separate property 

and awarded the ring to her. 

 "Property acquired during the marriage is presumed to be 

marital property, unless there is sufficient evidence that it is 

separate property." Lee v. Lee, 13 Va. App. 118, 121-22, 408 

S.E.2d 769, 771 (1991). The trial court erred in classifying 

these properties as separate. The antique wooden bed and the 

diamond ring were clearly marital property because they were 

acquired during the marriage with marital funds and before the 

parties separated. However, the errors become harmless when 

viewed together, as the trial court awarded wife the value of the 

diamond ring, which exceeded that of the bed. 

DENIAL OF CONTINUANCE

 Wife next contends that the trial court erred in refusing to 

grant a continuance so that wife's new attorney could prepare for 

the equitable distribution hearing. 

 The record establishes that the trial court approved the 

withdrawal of wife's first attorney on June 29, 1993. Wife did 

not hire another attorney until October 19, 1993, two weeks 
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before the equitable distribution hearing scheduled for 

November 3, 1993. In denying wife's attorney's request for a 

continuance of the trial date, the trial judge stated as follows: 

 The Court has set deadlines, and the fact 

that you came into it late is an unfortunate 

one. If one party sits and doesn't do 

anything until the deadline and then gets it 

extended, we would never get anything done 

that way. . . . When you get into the case 

you have to be aware of the trial 

proceedings, pretrial orders that have been 

entered with reference to deadlines for 

putting in evidence, and if you can't comply 

with it, you ought not get into it. 

 "The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court. Abuse of 

discretion and prejudice to the complaining party are essential 

to reversal." Venable v. Venable, 2 Va. App. 178, 181, 342 

S.E.2d 646, 648 (1986). In the instant case, wife delayed for 

over three months after the withdrawal of her first attorney 

before retaining a new attorney. Her failure to designate a new 

attorney until immediately before the scheduled hearing resulted 

in the lack of preparation time, not the trial court's refusal to 

grant a continuance. 

EXCLUSION OF RETIREMENT PLANS FROM MARITAL ESTATE 

 Wife also argues that the trial court erred in excluding 

husband's 401(k) plan and Bell Atlantic retirement plan from the 

marital estate and in failing to award her a percentage of those 

plans. 

 Husband participated in a 401(k) plan with his employer both 
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before and during the marriage. Husband's evidence established 

that the value of the plan in December 1989 was $31,762.20 and 

that the value in December 1991 was $21,703.38. Thus, when the 

parties separated in January 1992, the plan had decreased in 

value approximately $10,000 due to the parties' withdrawal of 

$20,000 from the plan in 1991 to pay for household, tuition, and 

mortgage expenses. Husband's evidence also showed that his Bell 

Atlantic retirement plan increased in value approximately $8,200 

between the date of marriage and the date of separation. 

Pursuant to Code § 20-107.3(G)(1), the trial judge found "it 

equitable to award the 401-K Plan and the Bell Atlantic 

Management Pension Plan to [husband]." 

 "Code § 20-107.3(G) provides that, upon consideration of the 

factors set forth in Code § 20-107.3(E), the court may direct 

payment of up to fifty percent of the 'marital share' of a 

party's pension [or retirement benefits]." Gamer v. Gamer, 16 

Va. App. 335, 342, 429 S.E.2d 618, 624 (1993) (emphasis added). 

This Court relies "on the trial judge's discretion in weighing 

the particular circumstances of each case" in determining whether 

a distribution of pension assets is fair. Aster v. Gross, 7 Va. 

App. 1, 7-8, 371 S.E.2d 833, 837 (1988). 

 Although husband's pension assets were not specifically 

listed as marital property, neither were they classified as 

husband's separate property. The trial judge's treatment of 

husband's pension assets in a separate paragraph of his letter 
 10 

opinion was done in a manner that indicated he considered 

husband's pension assets as marital property, but did not award 

wife a portion of them. Husband's evidence established that wife 

benefitted from the $20,000 withdrawn from his 401(k) account 

during the marriage and that his 401(k) plan decreased in value 

in excess of the increase in value of his Bell Atlantic 

retirement plan. Thus, the trial court did not err in failing to 

award wife an additional percentage of husband's pension assets. 

VALUATION OF OCEAN VIEW CONDOMINIUM

 Next, wife contends that the trial court erred in valuing 

the Ocean View condominium at its tax assessed value of $79,470. 

 The evidence established that the tax assessment value of 

the condominium decreased from $114,000 in 1992 to $79,470 in 

1993. In her deposition, wife testified that the parties 

purchased the condominium for $120,000 and that its value "might 

have stayed the same, but it wouldn't have gone down that 

severe." The only other evidence of the condominium's value in 

the record was a 1993 listing agreement with a realtor, 

indicating a sale price of $126,300. 

 In this case, the trial court was not plainly wrong in 

accepting the 1993 tax assessment value as evidence of the value 

of the condominium and in giving less weight to wife's testimony 

and the listing agreement. A party claiming an interest in 

marital property or claiming that the trial court erred in 

evaluating an item of marital property has the duty to prove the 
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value of the property. See Bowers v. Bowers, 4 Va. App. 610, 

617, 359 S.E.2d 546, 550 (1987). Wife offered no reliable 

evidence of value and did not object to using the tax assessment 

value for other marital property. 

MORTGAGE ON OCEAN VIEW CONDOMINIUM

 Husband's evidence proved that the Ocean View condominium 

had a tax assessment value of $79,470 in 1993 and an outstanding 

mortgage with a principal balance of $91,748.42. Thus, the 

negative equity in the condominium was approximately $12,278. 

The parties owned the condominium as tenants by the entirety, and 

each assumed the risk that the asset might increase or decrease 

in value during the marriage. 

 The trial court accepted husband's value of the condominium 

and determined that the negative equity in the condominium should 

be apportioned between the two parties. Because the court had 

the authority to divide "the debts of the parties . . . incurred 

prior to the dissolution of marriage," Code § 20-107.3(C), it did 

not err in finding that wife was responsible for twenty percent 

of the negative equity in the condominium. 

FAILURE TO AWARD SPOUSAL SUPPORT OR ATTORNEY'S FEES

 Wife contends that the trial court erred in failing to 

consider her request for spousal support and in denying her 

attorney's fees. She also argues that the trial court should 

have considered husband's adulterous behavior in determining 

spousal support and her inability to pay her attorney's fees. 
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 In wife's cross-bill of November 1992, she requested spousal 

support and attorney's fees. However, at the final hearing held 

November 3, 1993, wife failed to request the trial court to award 

spousal support or attorney's fees. In arguing attorney's fees, 

wife's counsel acknowledged that "[t]he parties should bear their 

own expenses." Wife requested the Louisa County property and 

$50,000 cash as a "fair resolution of this case." In its letter 

opinion of February 1, 1994, the trial court ruled that the 

parties were responsible for their own attorney's fees and did 

not address the issue of spousal support. Wife filed exceptions 

to the letter opinion on April 26, 1994, and objected to the 

court's failure to award spousal support and attorney's fees. 

 We hold that the trial court did not err in failing to award 

wife spousal support or attorney's fees. At the final hearing, 

wife failed to raise the specific requests or arguments she now 

raises on appeal. See Rule 5A:18. She did not request either 

spousal support or a reservation of support. Concerning 

attorney's fees, wife acknowledged the parties' responsibility to 

bear their own expenses in arguing against husband's request for 

attorney's fees. 

 Additionally, the record contains insufficient evidence to 

determine wife's entitlement to spousal support and attorney's 

fees. In determining spousal support, a trial court must 

consider "[t]he earning capacity, obligations, needs and 

financial resources of the parties." Code § 20-107.1(1). Wife 
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failed to present any evidence of her expenses and how much 

support she needed. She also failed to present any evidence of 

the amount of attorney's fees incurred. 

MOTION FOR SANCTIONS 

 In relation to this appeal, wife filed a motion for 

sanctions against husband pursuant to Rule 5A:25(g), arguing that 

husband designated unnecessarily several hundred pages of 

irrelevant documents for inclusion in the appendix. We deny the 

motion because the pages designated by husband were clearly 

relevant to issues on appeal. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.