Thomas v. Thomas

• Citation: 217 Va. 502,229 S.E.2d 887
• Decision Date: 24 November 1976
• Docket Number: No. 751372,751372
• Parties: Shirley Strickler THOMAS v. Paul DeWitt THOMAS. Record
• Court: Virginia Supreme Court

Page 887

229 S.E.2d 887

217 Va. 502

Shirley Strickler THOMAS v. Paul DeWitt THOMAS.

Record No. 751372.

Supreme Court of Virginia.

Nov. 24, 1976.

Kaletah N. Carroll, Fairfax, for appellant.

Kikran V. Kavaljian, Jr., Alexandria (Lutz & Kavaljian, Alexandria, on brief), for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARMAN, Justice.

The trial court awarded Shirley Strickler Thomas (wife or Mrs. Thomas) a divorce A vinculo matrimonii from Paul DeWitt Thomas (husband or Mr. Thomas) on the ground that the parties had lived separate and apart for more than one year, Code § 20--91(9). The final decree awarded the wife periodic payments of $200 per month for her support and maintenance but provided that these monthly payments would terminate after two years. The chancellor denied the wife's prayer for counsel fees.

The wife appeals, alleging that the trial court erred in:

(1) awarding an insufficient amount as support and maintenance;

(2) limiting the award of support and maintenance to a term of two years; and (3) failing to allow counsel fees for the wife's attorney.

While the chancellor heard evidence Ore tenus at a lengthy hearing on the issue of support and maintenance, no transcript of this hearing was filed. The parties are before us upon the following agreed statement of facts:

'Mr. Thomas, who is 55 years old, testified he earned $28,000.00 a year on his U.S. Government job for a take-home figure of $713.80 every two weeks, which is $1,546.56 per month ($713.80 26 = $18,558.80 12 = $1,546.56). He has been a Federal Government employee for 29 years; retirement is eminent. Mr. Thomas also has income from refereeing high school basketball games during basketball season but testified that, because of some arthritis in his knees, he chooses not to do this anymore. Of the four children born of the marriage, only one is under the age of 18 years, to-wit: Brandt A. Thomas who is 16 years 11 1/2 months of age and is living with Mr. Thomas in the family home, which is jointly owned by the parties. One child of the parties, who is a month from her 21st birthday, is a senior at Virginia Commonwealth University and her tuition is $346.00 per semester.

'During the thirty years of marriage, Mrs. Thomas' only employment outside of raising the four children, three of whom are only a year apart in age, and housekeeping, was as a substitute teacher. She is a college graduate although not qualified as far as her education is concerned to teach regularly. Her total salary for the last 12 months was $1,546 gross, which is the most she has ever made in any 12 month period within the last 5 years.

'Mrs. Thomas, who is 51 years old, suffers from an old neck injury which causes her considerable pain and numbness in her hands, which limits her use of them. She is not qualified for any other employment than substitute teaching and, although she has made application for employment she has been rejected.

'Both parties filed a list of their expenses which the Complainant incorporates herein by reference. Mrs. Thomas testified her needs were $757.57. Mr. Thomas testified his needs were $1,573.08; joint equity in property of $70,000.'

Here, since the wife has established her need for support and the husband's ability to provide it, and she was not shown to be guilty of misconduct entitling her husband a divorce, the chancellor had no choice but to award the wife support and maintenance. Rowand v. Rowand, 215 Va. 344, 346, 210 S.E.2d 149, 150--151 (1974); Code § 20--107.

While the wife argues that the monthly amount was too small, the chancellor, under the mandate of Code § 20--107, in fixing support and maintenance, was required to consider:

'(1) (t)he earning capacity, obligations and needs, and financial resources of the parties;

'(2) (t)he education and training of the parties and the ability and opportunity of the parties to secure such education and training;

'(3) (t)he standard of living established during the marriage;

'(4) (t)he duration of the marriage;

'(5) (t)he age, physical and mental condition of the parties; (and)

'(...