Steven Dennis Byrd v. Diane Revere Byrd ( 2014 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Petty, Beales and Chafin
    UNPUBLISHED
    Argued at Richmond, Virginia
    STEVEN DENNIS BYRD
    MEMORANDUM OPINION BY
    v.     Record No. 0687-13-2                                    JUDGE WILLIAM G. PETTY
    JANUARY 14, 2014
    DIANE REVERE BYRD
    FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
    Steven C. McCallum, Judge1
    Sharon B. Ten (Locke Partin & Quinn, on brief), for appellant.
    Diane Revere Byrd, pro se.
    Steven Dennis Byrd (“husband”) appeals the trial court’s award of $1,500 per month
    spousal support to Diane Revere Byrd (“wife”) until January 1, 2019. On appeal, husband
    assigns six errors to the trial court’s rulings. Only the first alleged error merits review here: the
    trial court erred because wife failed to introduce sufficient evidence to support an award of
    spousal support under the statutory factors in Code § 20-107.1(E). For the following reasons, we
    agree and reverse the judgment of the trial court.
    I.
    Because the parties are fully conversant with the record in this case and this
    memorandum opinion carries no precedential value, we recite below only those facts and
    incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
    this appeal. “On appeal, we view the evidence in the light most favorable to . . . the party
    
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Judge Michael C. Allen, who retired prior to the entry of the final divorce decree, heard
    the evidence in this case.
    prevailing below, ‘and grant all reasonable inferences fairly deducible therefrom.’” Johnson v.
    Johnson, 
    56 Va. App. 511
    , 513-14, 
    694 S.E.2d 797
    , 799 (2010) (quoting Anderson v. Anderson,
    
    29 Va. App. 673
    , 678, 
    514 S.E.2d 369
    , 372 (1999)). “On interpretations of the law as it applies
    to [the evidence], however, we review the circuit court’s ruling de novo . . . .” Lewis v. Lewis,
    
    53 Va. App. 528
    , 536, 
    673 S.E.2d 888
    , 892 (2009).
    II.
    A. Sufficiency of Evidence to Support Trial Court’s Findings
    In his first assignment of error, husband asserts that the trial court erred in awarding wife
    spousal support when wife failed to introduce sufficient evidence to support findings under the
    statutory factors in Code § 20-107.1(E). Specifically, husband argues that wife presented no
    evidence of her obligations, needs, or financial resources. We agree.
    “When making an award of spousal support, the trial court must consider all the factors
    enumerated in Code § 20-107.1(E) and set forth findings or conclusions identifying the statutory
    factors supporting that award.” Andrews v. Creacey, 
    56 Va. App. 606
    , 634, 
    696 S.E.2d 218
    , 231
    (2010). Furthermore, “The determination whether a spouse is entitled to support, and if so how
    much, is a matter within the discretion of the court and will not be disturbed on appeal unless it is
    clear that some injustice has been done.” Dukelow v. Dukelow, 
    2 Va. App. 21
    , 27, 
    341 S.E.2d 208
    , 211 (1986). “When the record discloses that the trial court considered all of the statutory
    factors, the court’s ruling will not be disturbed on appeal unless there has been a clear abuse of
    discretion.” Gamble v. Gamble, 
    14 Va. App. 558
    , 574, 
    421 S.E.2d 635
    , 644 (1992). “‘We will
    reverse the trial court only when its decision is plainly wrong or without evidence to support it.’”
    Northcutt v. Northcutt, 
    39 Va. App. 192
    , 196, 
    571 S.E.2d 912
    , 914 (2002) (quoting Moreno v.
    Moreno, 
    24 Va. App. 190
    , 194-95, 
    480 S.E.2d 792
    , 794 (1997)) (citation omitted).
    -2-
    Moreover, and most importantly, “A party seeking spousal support bears the burden of
    proving all facts necessary for an award, including evidence of financial need reasonably
    separate from the needs of others for whom the party paying support either owes no obligation or
    will be satisfying that obligation, if owed, by other means.” Robbins v. Robbins, 
    48 Va. App. 466
    , 484, 
    632 S.E.2d 615
    , 624 (2006). However,
    While Code § 20-107.1(E)(1) requires the consideration of
    the “needs” of the “parties,” the statute does not (as the child
    support statute does) create a mathematical formula primarily
    reliant on the input of financial data. Instead, § 20-107.1(E)
    requires only the factfinder to “consider” the estimated needs of
    the parties. By doing so, the statute thus authorizes a flexible,
    commonsense approach to this aspect of the factfinding exercise.
    Id. at 486 n.10, 
    632 S.E.2d at
    624 n.10.
    Here, wife did not put on any evidence—only husband put forth evidence.2 This
    disproportion in proof meant that the trial court evaluated only husband’s exhibits and the
    testimony of both parties. In addressing the financial need factor in Code § 20-107.1(E)(1), the
    court only noted, “[T]he parties accumulated substantial debts during the marriage.” The trial
    court did not elaborate on what weight it applied to this factor and merely stated that it took “into
    account all of these findings and the statutory factors” in making its decision regarding the
    spousal support award.
    Furthermore, although “the judge is not ‘required to quantify or elaborate exactly what
    weight or consideration it has given to each of the statutory factors,’” Pilati v. Pilati, 
    59 Va. App. 176
    , 183, 
    717 S.E.2d 807
    , 810 (2011) (quoting Duva v. Duva, 
    55 Va. App. 286
    , 300, 
    685 S.E.2d 842
    , 849 (2009)), that does not release the party seeking an award from the burden of proving all
    facts necessary for that award. Here, beyond the limited direct examination testimony of wife by
    2
    Although wife was initially represented by an attorney, she appeared pro se at the
    evidentiary hearing. Husband called her as a witness in support of the allegations in his bill of
    complaint. Wife did not testify on her own behalf.
    -3-
    husband’s attorney and her very brief opening and closing statements, wife did nothing to prove
    the necessity of an award to her. To the contrary, husband introduced over twenty exhibits
    demonstrating his financial situation. Indeed, the only information before the trial court
    regarding wife’s expenses, financial needs, or obligations was that wife was laid off from her
    full-time job in 2011, that she was currently employed part time taking care of an elderly
    woman,3 that she and husband had enjoyed a middle to upper class lifestyle, and that, following
    the court’s order, wife would be assuming the $2,546.82 worth of debt accumulated on one credit
    card.4
    Furthermore, although the trial court gave seemingly sufficient consideration to the Code
    § 20-107.1(E) factors, the party seeking a spousal support award bears the burden of proving the
    facts necessary for the award. Although we decline to hold that a party is required to introduce
    detailed spreadsheets representing its expenses and financial needs, a party must put on at least
    some evidence to meet its burden of proving the necessity of an award. Because wife put on no
    evidence, and husband’s evidence failed to establish her need, she failed to meet that burden.
    Therefore, the trial court abused its discretion in granting the spousal support award in this case.5
    3
    The trial court found that her current gross monthly income was $1,558. However, this
    appears to have come from comments the wife made during her closing argument. It is not
    supported by the evidence she presented during her testimony.
    4
    Twice in the course of the trial—once during wife’s opening statement and a second
    time during wife’s direct examination—wife attempted to explain why she needed spousal
    support and was told by the court that she would have a chance to do so later. However, wife did
    not call any witnesses, enter any financial documents into evidence, nor did she explain, in her
    closing argument, the extent of her alleged financial need based on the evidence that was
    presented.
    5
    Assignments of error two, three, and four all assign additional error to the trial court’s
    award of spousal support. Because of our holding, we need not address these assignments. We
    note parenthetically, however, that the argument accompanying each of these assignments
    suffers from the infirmity we discuss below.
    -4-
    B. Issues Not Addressed Because of Rule 5A:20
    Husband waived review of assignments of error five and six. For the sake of brevity, we
    summarize them here: the trial court erred in refusing to award husband a number of tangible
    personal property items, and the trial court erred in awarding wife a portion of husband’s
    retirement when wife presented no evidence with respect to the retirement.
    “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,
    the argument, and the authorities relating to each question presented.’ Unsupported assertions of
    error ‘do not merit appellate consideration.’” Fadness v. Fadness, 
    52 Va. App. 833
    , 850, 
    667 S.E.2d 857
    , 865 (2008) (quoting Jones v. Commonwealth, 
    51 Va. App. 730
    , 734, 
    660 S.E.2d 343
    , 345 (2008)). Indeed,
    “A court of review is entitled to have the issues clearly defined and
    to be cited pertinent authority. The appellate court is not a
    depository in which the appellant may dump the burden of
    argument and research. To ignore such a rule by addressing the
    case on the merits would require this court to be an advocate for, as
    well as the judge of the correctness of, [appellant’s] position on the
    issues he raises. On the other hand, strict compliance with the
    rules permits a reviewing court to ascertain the integrity of the
    parties’ assertions which is essential to an accurate determination
    of the issues raised on appeal.”
    
    Id.
     (alteration in original) (quoting Jones, 
    51 Va. App. at 734-35
    , 
    660 S.E.2d at 345
    ).
    Accordingly, if a party fails to strictly adhere to the requirements of Rule 5A:20(e), and that
    failure is significant, then we may treat the assignment of error as waived. 
    Id.
    Here, husband failed to cite even one legal authority or principle to support the assertions
    made in assignments of error five and six. “Appellate courts are not unlit rooms where attorneys
    may wander blindly about, hoping to stumble upon a reversible error. If [husband] believed that
    the circuit court erred, it was [his] duty to present that error to us with legal authority to support
    [his] contention.” Id. at 851, 
    667 S.E.2d at 866
    . Without legal authority to support his
    assertions, our only basis for reversing the trial court’s decision would be husband’s displeasure
    -5-
    with the trial court’s execution of its fact-finding authority. Therefore, because husband’s failure
    to provide legal argument or authority is significant, he has waived his right to have these
    assignments of error reviewed by this Court. Jay v. Commonwealth, 
    275 Va. 510
    , 519, 
    659 S.E.2d 311
    , 316 (2008).
    C. Attorney’s Fees
    Husband has requested an award of attorney’s fees on appeal.
    The rationale for the appellate court being the proper forum to
    determine the propriety of an award of attorney’s fees for efforts
    expended on appeal is clear. The appellate court has the
    opportunity to view the record in its entirety and determine
    whether the appeal is frivolous or whether other reasons exist for
    requiring additional payment.
    O’Loughlin v. O’Loughlin, 
    23 Va. App. 690
    , 695, 
    479 S.E.2d 98
    , 100 (1996). After a review of
    the record, we conclude that an award of attorney’s fees is not appropriate and we thus deny
    husband’s request.
    III.
    For the foregoing reasons, we reverse the judgment of the trial court and remand for entry
    of an order consistent with this opinion.
    Reversed and remanded.
    -6-