West v. West

• Decision Date: 16 December 2008
• Docket Number: Record No. 3025-07-3.
• Citation: West v. West, 669 S.E.2d 390, 53 Va. App. 125 (Va. App. 2008)
• Parties: Norvell Winston WEST, III v. Jill Angela WEST.
• Court: Virginia Court of Appeals

669 S.E.2d 390

53 Va. App. 125

Norvell Winston WEST, III v. Jill Angela WEST.

Record No. 3025-07-3.

Court of Appeals of Virginia, Salem.

December 16, 2008.

Michelle C.F. Derrico (Copenhaver, Ellett & Derrico, on briefs), Roanoke, for appellant.

Vicki L. Wiese (Wiese Law Firm, PLC, on brief), for appellee.

Present: FELTON, C.J., and McCLANAHAN, J., and COLEMAN, Senior Judge.

WALTER S. FELTON, JR., Chief Judge.

Norvell Winston West, III (father) appeals from a judgment of the Circuit Court of the City of Roanoke (trial court) awarding spousal support and child support to Jill Angela West (mother). On cross-appeal, mother contends the trial court erred in awarding her spousal support of $500 per month and child support of $200 per month. She also contends the trial court erred in failing to award her attorney's fees and costs. Additionally, mother seeks an award of her attorney's fees and costs on appeal.

For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Father and mother were married in 1988. Two children were born of the marriage, "A," born in January 1991, and "B," born in January 1997. The parties separated in December 2003, after some fifteen years of marriage.¹

On January 18, 2007, the trial court held an ore tenus hearing concerning the equitable distribution of the parties' marital estate, spousal and child support, and each party's request for attorney's fees. It admitted into evidence Tab 12 of mother's three-ring trial notebook ("Binder") without objection from father.² Tab 12 contained a four-page listing of the thirteen Code § 20-107.1(E) factors required to be considered by the trial court in determining its spousal support award, and statements by mother concerning each of the factors.³

In its letter opinion dated April 27, 2007, the trial court granted mother primary physical custody of the children, with the parties sharing legal custody. It awarded mother spousal support of $500 monthly, stating that "[t]he court rules that the statutory factors outlined by [mother] at [T]ab 12 of her [Binder] are convincing in their detail, and are adopted by the court." It also awarded mother monthly child support of $200.

By letter dated November 6, 2007, following an October 31 ore tenus hearing,⁴ the trial court informed the parties and their respective attorneys that it would "enter the decree presented by [father's attorney]" with certain amendments. Among the trial court's amendments was one that provided that, "[i]n light of [father's] testimony that his income is now $69,000.00 a year, the decree includes a provision that the uninsured medical expenses will be borne by him at 70% and [mother] at 30%." In earlier proceedings, the parties stipulated that father's 2006 gross income was $32,440.27 at that time for the purposes of determining the child support award.

On November 15, 2007, the trial court entered a final decree of divorce dissolving the parties' marriage pursuant to Code § 20-91(A)(9)(a) (separation of more than one year without the possibility of reconciliation). The decree expressly incorporated the trial court's "letter opinion dated April 27, 2007." It ordered father to pay spousal support of $500 monthly and child support of $200 monthly consistent with the support ordered in its April 27 letter opinion "[a]fter reviewing [father's] submitted child support guidelines." Father prepared four child support guideline worksheets that were made part of the record, each of which is dated January 18, 2007. Each worksheet reflects father's monthly gross income as $2,743, an amount less than father's actual gross income at the time of the entry of the final decree, $69,000 a year. None of the four worksheets reflect applicable increases and credits related to the spousal support award to mother of $500 per month.

II. Spousal Support

Father and mother each contend the trial court erred in awarding monthly spousal support of $500 to mother. "In reviewing a spousal support award, we are mindful that the trial court has broad discretion in awarding and fixing the amount of spousal support. Accordingly, our review is limited to determining whether the trial court clearly abused its discretion." Miller v. Cox, 44 Va.App. 674, 679, 607 S.E.2d 126, 128 (2005). We conclude the trial court did not err in its spousal support award.

A. Father's Assertions

Father argues the trial court erred in its award of spousal support to mother by failing to provide written findings as required by Code § 20-107.1(F). Father failed to raise this objection in the trial court. "As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal." Thomas v. Commonwealth, 44 Va.App. 741, 750, 607 S.E.2d 738, 742 (citing Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 571 (2004)), adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005). The purpose of Rule 5A:18 is "to ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals." Andrews v. Commonwealth, 37 Va.App. 479, 493, 559 S.E.2d 401, 408 (2002).

Because father failed to object in the trial court that it failed to make the findings required by Code § 20-107.1(F), we will not consider that argument for the first time on appeal. Ohree v. Commonwealth, 26 Va.App. 299, 308, 494 S.E.2d 484, 488 (1998).

Father also contends that the evidence presented at trial was insufficient to support the trial court's award of spousal support to wife. He argues that "[d]uring the testimony regarding her request for spousal support, [mother] testified regarding her income and expenses and those of [father]," but that "[n]o other evidence was proffered with regard to the statutory factors."

Father's argument is without merit. Tab 12 from mother's trial notebook, admitted into evidence without objection, listed each of the Code § 20-107.1(E) factors and included evidence pertaining to each factor. See Commonwealth v. Jenkins, 255 Va. 516, 522, 499 S.E.2d 263, 266 (1998) (Court of Appeals erred in disregarding handwritten notation on discharge summary received into evidence without objection when evaluating sufficiency of evidence). The trial court expressly stated in its final decree that "the statutory factors outlined by [mother] at [T]ab 12 ... are convincing in their detail."

"Our standard of review requires that we presume the judgment of the trial court to be correct and that we sustain its finding unless it is plainly wrong or without evidence to support it." M. Morgan Cherry & Assocs. v. Cherry, 38 Va.App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc) (citations omitted). The record presented on appeal contains credible evidence to support the trial court's award of spousal support to mother.

B. Mother's Assertions

Mother contends the trial court abused its discretion in awarding her only $500 monthly in spousal support.

She specifically contends that the trial court erred by awarding her permanent spousal support in an amount less than the amount of temporary spousal support she received pursuant to the pendente lite award.⁵ Code § 20-103(E) clearly provides that a pendente lite award of spousal support "shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause" of spousal support. Mother's bare assertion that the trial court erred in awarding her permanent spousal support in an amount less than the pendente lite amount is wholly without merit.

Mother also asserts that the trial court abused its discretion in failing to award her spousal support in an amount sufficient to provide her with a lifestyle to which she was accustomed during the parties' marriage. "When a party to a divorce suit establishes an entitlement to [spousal] support, the law imposes upon the party liable for that support a duty to maintain the dependent party according to the parties' marital lifestyle." McCombs v. McCombs, 26 Va.App. 432, 436, 494 S.E.2d 906, 908 (1998). "However, this obligation is tempered by the financial ability of the breaching spouse and by consideration of all of the factors of Code § 20-107.1." Id. "Where the trial court has considered all of the statutory factors, and has provided written findings and conclusions identifying the statutory factors that support its ruling, we will not disturb that decision on appeal absent a clear abuse of discretion." McKee v. McKee, 52 Va.App. 482, 494, 664 S.E.2d 505, 511 (2008) (en banc) (citing Robinson v. Robinson, 50 Va.App. 189, 648 S.E.2d 314 (2007)).

In its award of spousal support to mother, the trial court expressly adopted mother's evidence contained in Tab 12 of her trial binder cataloging each of the Code § 20-107.1(E) statutory factors. Tab 12 provides, "[father] [ ] contributed financially off [and] on during our 15 year marriage, although we found we relied on his parents to help support us financially." The record reflects the parties' reliance on the financial support provided by father's parents subsidized the lifestyle they enjoyed during their marriage, a lifestyle otherwise beyond their financial means.

We cannot find from the record that the trial court erred in failing to award mother an amount of spousal support sufficient to provide her with a lifestyle inflated by the parties' reliance on father's parents' financial support during their marriage.

Mother further contends the trial court abused its discretion in "fail[ing] to also account for fault grounds" in awarding spousal support pursuant to "Va.Code Sect. 20-107.3(E)(5)."

Pursuant to Rule 5A:20(e), an appellant's brief must contain "[t]he principles of law, the argument, and the authorities relating to each question presented." Rule 5A:20(e).

Code § 20-107.3(E)(5), cited by mother in support of her argument,...