Robinson v. Robinson

• Court: Virginia Court of Appeals
• Writing for the Court: William G. Petty
• Citation: Robinson v. Robinson, 648 S.E.2d 314, 50 Va. App. 189 (Va. App. 2007)
• Decision Date: 07 August 2007
• Docket Number: Record No. 2661-06-3.
• Parties: Lucian Dabney ROBINSON v. Susan Beller ROBINSON.

648 S.E.2d 314

50 Va. App. 189

Lucian Dabney ROBINSON v. Susan Beller ROBINSON.

Record No. 2661-06-3.

Court of Appeals of Virginia, Salem.

August 7, 2007.

H. Gregory Campbell, Jr., Blacksburg (Bettye Ackerman, on brief), for appellant.

Monica Taylor Monday (David G. Weaver; Whittney R. Bradshaw; Gentry Locke Rakes & Moore; Weaver Law Firm, on brief), Roanoke, for appellee.

Present: HUMPHREYS, HALEY and PETTY, JJ.

WILLIAM G. PETTY, Judge.

Lucian Robinson (husband) appeals the final decree of divorce awarding Susan Robinson (wife) spousal support. On appeal, he argues that: (1) the trial court failed to make written findings and conclusions identifying the factors in Code § 20-107.1(E) that supported the spousal support award; (2) the trial court failed to consider the income available to wife when determining how much spousal support to award to wife; and (3) the trial court erred by awarding spousal support to wife for the one and one-half month period preceding the parties' separation agreement. Both parties seek an award of attorney's fees and costs incurred in connection with this appeal. For the reasons that follow, we reverse in part, affirm in part, and remand for proceedings consistent with the rulings expressed herein.

I. BACKGROUND

We view the evidence, and all reasonable inferences flowing from the evidence, in a light most favorable to wife as the party prevailing below. Congdon v. Congdon, 40 Va.App 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to `discard the evidence' of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Id. (quoting Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002)).

Husband and wife were married on June 21, 1969, and separated thirty-five years later on June 21, 2004. On August 10, 2004, husband and wife entered a written agreement regarding temporary spousal support.¹ On February 1, 2005 wife filed for divorce. On June 14, 2005, the trial court entered an order awarding temporary support for wife in an amount "agreed upon by the parties pursuant to the Agreement dated August 10, 2004." Wife further requested temporary spousal support "retroactive to January 15, 2005, the last date on which the defendant paid temporary spousal support" pursuant to the support agreement. The trial court took this request under advisement, "because the court does not want to award support retroactively in an unknown amount . . . ."

Before trial, the parties entered a stipulation resolving certain issues of equitable distribution and agreed that "all marital property shall be divided equally except the retirement assets." Under the stipulation, the retirement assets were "subject to equitable division by the [trial] court." Spousal support was neither addressed nor resolved by the stipulation and was the subject of a trial held on March 29 and 30, 2006.

On September 25, 2006, the trial court entered a final decree of divorce. For purposes of this opinion, the pertinent provisions of the trial court's decree include the following rulings: (1) the trial court awarded wife spousal support of $5,000 per month; and (2) the trial court awarded wife temporary spousal support for the time period in which husband failed to provide support and set the amount at $26,675.² The decree specified that this amount included "the unpaid support for the month and one-half between the date of separation and the time she began receiving temporary spousal support, and the months between February and May 2005."³

Husband appeals this final decree of divorce.

II. ANALYSIS

Husband raises three issues on appeal. He argues the trial court erred: (1) by failing to make written findings and conclusions identifying the factors in Code § 20-107.1(E) which supported the spousal support award; (2) by failing to consider the income available to wife when determining how much spousal support to award to wife; and (3) by awarding spousal support to wife for the one and one-half month period preceding the parties' temporary support agreement.

In response to husband's argument that the court failed to provide written findings, wife asserts a twofold argument: (1) the case was not "contested" because husband consented to wife receiving spousal support and only litigated the amount; therefore, she reasons, Code § 20-107.1(F) does not apply; and (2) in any event, the spousal support award is supported by evidence in the record and, after consideration of the record, we should affirm the trial court's judgment. Wife also asserts that husband waived his right to object to any temporary support award, and she is seeking recovery of her attorney's fees on appeal.

We hold that spousal support in this case was a contested matter, and we reverse the spousal support award because the decree neither contains nor incorporates explicit written findings and conclusions supporting the award as required by statute.⁴

We rely upon the following legal principles in analyzing the spousal support issues before us. "A trial court has broad discretion in setting spousal support and its determination will not be disturbed except for a clear abuse of discretion." Brooks v. Brooks, 27 Va.App. 314, 317, 498 S.E.2d 461, 463 (1998) (citations and internal quotation marks omitted). However, where a trial court is required to make written findings supporting its decision, its failure to do so constitutes reversible error. Cf. Buchanan v. Buchanan, 14 Va.App. 53, 56-57, 415 S.E.2d 237, 239 (1992) (holding that an award of child support that deviated from the guidelines without written findings justifying the award must be reversed and remanded for redetermination).

1. Application of Code § 20-107.1(F)

Code § 20-107.1(F) provides, in pertinent part, that, "[i]n contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court's order." (Emphasis added). Wife contends Code § 20-107.1(F) does not apply in this case because husband consented to wife receiving spousal support. As a result, she argues the case is therefore not "contested."

We must construe the meaning of the word "contested" according to principles of statutory construction. "Words in a statute are to be construed according to their ordinary meaning, given the context in which they are used." Grant v Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). Black's Law Dictionary defines "contest" as "to litigate or call into question; challenge." Black's Law Dictionary 314 (7th ed. 1999). Prior to trial, the parties entered a stipulation resolving many previously disputed issues; however, spousal support was not included in the stipulation. Instead, the parties litigated this issue. By submitting this issue to the trial court, they disputed whether spousal support was appropriate and, if so, the amount. The final decision concerning the award of spousal support rested solely within the discretion of the trial court; therefore, this was clearly a contested case within the scope of Code § 20-107.1(F).

2. Compliance with Code § 20-107.1(F)

The General Assembly amended Code § 20-107.1, effective July 1, 1998, to add subsection (F). See 1998 Va. Acts, ch. 604, cl. 2. Previously, we have held that when a trial court failed to make factual findings or present any explanation of the circumstances that influenced its decision regarding spousal support, we could examine the record to determine if the trial court's decision was supported by evidence relevant to the statutory factors. Woolley v. Woolley, 3 Va.App. 337, 345, 349 S.E.2d 422, 427 (1986). However, as amended, the plain language of subsection (F) does not contain a provision permitting such review. On the contrary, Code § 20-107.1(F) specifically requires that in a contested case, the trial court shall provide written findings and conclusions identifying the statutory factors that support the court's ruling on a request for spousal support.

Accordingly, we conclude that Woolley and its progeny that held we could "examine the record to determine if [the] decision was supported by evidence relevant to [the] factors [contained in Code § 20-107.1]," Woolley, 3 Va.App. at 345, 349 S.E.2d at 427, have been superseded by the enactment of Code § 20-107.1(F). Therefore, we decline to search the record before us to determine whether evidence exists to support the trial court's decision. See Earley v. Landsidle, 257 Va. 365, 370, 514 S.E.2d 153, 155 (1999) ("[W]hen the language in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.").

In the case before us, the trial court set out in the divorce decree the various statutory factors it must consider in determining the nature, amount, and duration of spousal support. Next, the trial court explained the award of $5,000 per month in spousal support to wife in the following manner: "Upon consideration of all of the factors set forth in Virginia Code § 20-107.1 and the evidence presented, it is hereby ADJUDGED, ORDERED, AND DECREED that Mr. Robinson pay Mrs. Robinson spousal support in the amount of $5,000.00 per month."

Although the divorce decree recites the factors contained in Code § 20-107.1(E), it does not provide any facts pertaining to this particular case and the evidence presented at trial. Moreover, it does not include any findings or conclusions identifying the factors listed in Code § 20-107.1(E) that support the spousal support award. Accordingly, we reverse the spousal support award and remand the case to the trial court for reconsideration of the award based upon the existing record and in keeping with this opinion.

3. Retroactive Temporary Spousal Support

The final issue raised by husband is that the trial court erred by awarding wife spousal...