                       COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia


GERALD LEONARD CUMMINGS

v.             Record No.   2645-94-3        MEMORANDUM OPINION *
                                          BY JUDGE JOSEPH E. BAKER
PAMELA GREENWOOD CUMMINGS                     FEBRUARY 6, 1996


                 FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                           G. O. Clemens, Judge
               Arthur E. Smith (Barry M. Tatel; Key & Tatel,
               on briefs), for appellant.

               K. Mike Fleenor, Jr. (T. Rodman Layman; Crowell,
               Nuckols, Layman & Aust, on brief), for appellee.



        Gerald Leonard Cummings (husband) appeals from equitable

distribution-related awards made in favor of Pamela Kay Greenwood

Cummings (wife) by the Circuit Court of Roanoke County (trial

court) following the entry of a divorce decree entered on May 5,

1993.       The parties married on June 10, 1989 and separated two

years later on June 19, 1991.       On July 30, 1991, husband filed a

bill of complaint charging that wife constructively deserted him

on June 19, 1991.      Wife denied the charge and filed a cross-bill

challenging, among other things, the validity of an antenuptial

agreement they had executed.

        On May 5, 1993, the court granted wife a decree of divorce

on the ground of desertion.       That decree specifically reserved

other issues for future determination, including equitable
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
distribution.   In this appeal, husband does not contest the

decree awarding the divorce to wife.

     Pursuant to the order bifurcating the suit, a second trial

was conducted on the issues of the validity of the antenuptial

agreement, 1 maintenance and support, division of marital property

and the other matters pending between the parties.   Husband

appeals from marital awards made by the trial court, including an

award of attorney's fees.   Wife cross-appealed, asserting that

she is entitled to additional attorney's fees for defending this

appeal.
     The controversy primarily concerns three pieces of real

property known as Club Lane (Club), Peregrine Crest (Peregrine),

and Stanley Avenue (Stanley).   Club and Peregrine were owned

solely by husband prior to the marriage.   Stanley was acquired

during the parties' marriage.

     On December 1, 1994, the trial court entered a decree making

the following findings and awards:

     1.   That during the marriage wife made significant personal

efforts toward improving all three properties which increased

their value.

     2.   That wife's efforts were greater than husband's;

therefore, "she is credited with ninety percent (90%) of the

[appreciation in] value of" Peregrine and Club.
     1
      The issue of the validity of the antenuptial agreement was
tried and by order entered June 28, 1994, the court declared the
contract valid. That decision is not contested in this appeal.



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        3.    That the value of Peregrine and Club increased $100,000

and $25,000, respectively.

        4.    That wife's share from Stanley, being a subject of an

antenuptial agreement, is $9,300.

        5.    That wife's gross ninety percent award of equitable

distribution is $121,800.

        The court then reduced this award by the following sums:

        (a)   $4,400, received by wife from the sale of a Steinway

piano;
        (b)   $5,860, real estate commission received by wife;

        (c)   $15,000, awarded wife in an order entered November 12,

1991.    That order does not state the reason for the award but

does indicate that it shall be "an offset" against any equitable

distribution award; and

        (d)   $1,000, sum paid by husband to satisfy a debt of wife.

After deducting the above sums from the $121,800 award, the

decree found the final net sum husband was to pay to wife "to be

ninety-five thousand, five hundred forty ($95,540)" plus $35,000

for attorney's fees.
                              I. Peregrine

        Husband held Peregrine as investment property.    A house was

constructed on it and it was sold to an owner who was unable to

complete his obligation to husband.       Peregrine was reconveyed to

husband in the latter part of 1988, before the marriage, and

immediately listed for sale with Cumins & Co. (Cumins), real




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estate brokers.   At that time, wife was employed by Cumins.

     Peregrine needed extensive renovation and, prior to the

parties' marriage, wife agreed to supervise the renovation.    They

agreed that she would receive $20,000 for her efforts.    She was

advanced $3,000 toward that fee when the project began.

     Wife conferred with a Roanoke contractor, Joel Schlanger.

Wife and Schlanger worked up specifications and eventually a

contract was signed by husband and Schlanger to renovate the

property to satisfy the subdivision standards.   The final

contract was for $88,646.06, which was paid to Schlanger by

husband on May 18, 1989.   Wife testified that the renovation of

the property was ongoing at the time of the parties' marriage,

and that she continued to oversee the renovation of the interior

for another six months after their marriage.   When the renovation

was completed, the now married parties moved into the Peregrine

Crest property in January or February of 1990.
     At trial, husband's appraiser testified that from June 10,

1989 to June 19, 1991 the Peregrine property had increased in

value $10,000, which amount was due to normal upkeep and market

changes.   Wife testified that her efforts had caused the value of

Peregrine to increase substantially more.   The trial court found

that the value of Peregrine increased $100,000 due to the marital

efforts of the parties.

     Husband contends that to the extent wife's efforts may have

increased the value of Peregrine, they were not marital but




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rather were the services of a real estate agent that were fixed

by contract and, thus, were contractual obligations.   We agree.

Prior to their marriage the parties entered into a contract for

wife to supervise the renovation of Peregrine for which she was

to receive $20,000.   Part of that consideration was paid in

advance.   The parties' subsequent marriage did not void the terms

of their contract.    Wife was entitled to the fee of $20,000 and

no more from husband's separate property.   The trial court erred

when it found that wife was entitled to receive an award from

husband's separate property based upon the increased value

resulting from her "marital efforts."
                              II. Club

     Club, also, was the separate property of husband, acquired

in his sole name prior to his marriage.   When husband decided to

sell Club, wife agreed to act as general contractor for the

purpose of preparing the property for sale.   She would employ the

workmen, and husband would pay all costs related to the work.

Wife agreed that in payment for her contribution, she would

receive an exclusive listing through her broker, which would

entitle her to receive a commission when the property was sold.

     The cost of preparing Club was $17,000, all paid by husband.

Club was sold by contract dated January 18, 1990; however, the

closing was delayed until May 31, 1990, when the buyer paid

$295,000 to husband; wife was paid $5,900 as her commission.

Husband's appraiser testified that Club was valued at $295,000 on




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the date of the parties' marriage and on January 18, 1990, which

was the price at which the property had sold.    Wife valued Club

at $153,000 before the $17,000 was spent to ready the house for

sale.    The court found that the value of Club increased $25,000

due to the marital efforts of the parties.

        The parties' exclusive listing was not dissolved by their

marriage and wife was paid the sum the agreement defined her

interest to be.    Wife's contributions to husband's separate

property were contractual, not marital.     The trial court erred

when it found that wife was entitled to receive an award based

upon the increase in value, if any, resulting from her marital

efforts.
                             III. Stanley

        In February 1990, at wife's suggestion, husband agreed to

buy Stanley for $159,500.    Wife was paid a commission of $3,400

for selling the property to husband.     There was some discussion

that the parties would live at Stanley after extensive

renovation, but, for differences of opinion and some objections,

that notion was abandoned.    Wife then employed an attorney to

prepare a contract setting forth their respective rights and

obligations on the Stanley project, which she and husband

executed.    The contract required that husband would furnish the

money to pay for the renovation, which was estimated to cost

$70,000, and that wife would be in charge of construction and

have the exclusive right to sell the property.    Upon the sale of




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the property, the contract provided that wife would receive any

amount received in excess of the principal amount of the home

equity line of credit on the house.    Husband deposited money into

a joint account with the agreement that wife would draw upon the

funds and keep account of actual costs by marking the checks for

the Stanley renovation.   At completion of the project, those

checks totaled $171,293; however, wife disputed the accuracy of

the audit, estimated the costs at $100,000, and testified that

husband agreed to pay whatever the improvements cost.
     The house was being offered for sale by wife pursuant to the

terms of their agreement when the separation of the parties

occurred on June 19, 1991.   Thereafter, husband filed for

divorce.   Under Code § 20-103, wife was permitted to use

Peregrine and husband moved to Stanley.   Husband then offered

Stanley for sale through Mastin Realty Company, whose agent, in

what the court declared to be an arm's length sale, found a buyer

for $240,000, which after commissions, netted husband

$226,841.39.   At the time of sale, the principal due on the home

equity line of credit was $230,700.    As a result of this sale and

the terms of the contract entered into prior to their separation,

we cannot say that the trial court erred when it awarded wife

$9,300 from the sum received by husband from the sale of Stanley.
                             IV. Waste

     Husband further contends that the trial court erred in

rejecting his allegations of waste.    In addition, he asserts that




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the awards were made by the trial court as a form of punishment

to husband.   The decision of the trial court on the issue of

waste is within its discretion and we find no abuse in that

decision.   Nor do we find evidence in this record to support

husband's "punishment" assertion.    Husband has not sustained his

burden to support either allegation.
                         V. Attorney's Fees

     As the final argument was about to begin, the trial court

observed:
            You all haven't said one thing about asking
            for attorneys [sic] fees. You have presented
            nothing on attorneys [sic] fees.


Notwithstanding that little response was made to that

observation, the trial court ordered husband to pay wife $35,000

for attorney's fees.   Husband contends that this record does not

contain evidence to support that award.     We agree.   Although the

matter of attorney's fees is generally within the sound

discretion of the trial court, the record must justify the sum

awarded.    Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d

523, 530 (1988) (citing Robertson v. Robertson, 215 Va. 425,

429-30, 211 S.E.2d 41, 45 (1975)).      While factors other than time

expended may be considered in awarding a fee, see McGinnis v.

McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985),

without any evidence of the time expended, we find no support in

the record to justify requiring husband to pay $35,000 to wife as

attorney's fees.




                                - 8 -
     Because husband substantially prevails in this appeal,

wife's request for attorney's fees for the appeal is denied.
                          VI. Conclusion

     In summary, we hold that Peregrine and Club are separate

properties of husband and that wife is entitled to receive only

that compensation for which she contracted; that the judgment

relating to Stanley is affirmed subject to any offset that may be

applicable; that the trial court did not err in rejecting

husband's claim for waste; that husband has failed to show that

any decision adverse to his interest was made to punish him; that

the record fails to support the award of $35,000 in attorney's

fees in wife's favor; and that wife is not entitled to any award

of attorney's fees for services rendered on her behalf in this

appeal.
     Accordingly, the judgment of the trial court is affirmed in

part, reversed in part and remanded.     Our judgment with respect

to the Peregrine, Club, and Stanley properties is final, and upon

remand the trial court shall enter an award in accordance

therewith, taking into consideration any and all appropriate

deductions.   Additionally, the trial court may deal with any and

all other matters necessary to a proper adjudication of the case.

                                       Affirmed in part,
                                       reversed in part and remanded.




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