Phuc T. Dao v. Ngoc Thi Nhu Nguyen ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PHUC T. DAO
v. Record No. 2071-95-4 MEMORANDUM OPINION *
PER CURIAM
NGOC THI NHU NGUYEN NOVEMBER 7, 1995
FROM THE CIRCUIT COURT OF
FAIRFAX COUNTY
Gerald B. Lee, Judge
(George E. Tuttle, Jr., on brief), for appellant.
(Thomas F. Koerner, Jr., on brief), for appellee.
Phuc T. Dao (husband) appeals the decision of the circuit
court awarding spousal support to Ngoc Thi Nhu Nguyen (wife). In
his appeal, husband raises the following issues: (1) whether the
trial court erred in granting wife's motion for reconsideration
and setting aside its final decree; (2) whether the trial court
erred in awarding wife $600 in monthly spousal support; and
(3) whether the trial court erred in admitting and relying upon
husband's Affidavit of Support submitted to the Immigration and
Naturalization Service (INS). Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the
trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Motion for Reconsideration
The wife received legally sufficient notice of the
August 3, 1994, hearing. Wife was not present at the hearing.
The court heard husband's evidence and granted custody of the
parties' child to husband. The court also issued a default
judgment against wife on the issues of equitable distribution and
spousal support.
Following entry of judgment on August 5, 1994, the judge
granted a rehearing and set aside the judgment. In his ruling,
the trial judge found the legal sufficiency of the notice to
wife. However, the court also noted that wife did not speak
English and at the time of the hearing was not represented by
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counsel. Wife had attempted to obtain new representation prior
to the hearing. Therefore, the trial judge elected to "us[e] my
discretion as a Chancellor," stating that "it would not be fair
to the parties if I were not [to] give at least [wife] the
opportunity to present her evidence. . . ."
"The conduct of a trial is committed to the sound discretion
of the trial court." Cunningham v. Commonwealth, 2 Va. App. 358,
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Husband has filed with this Court a "Motion to Amend
Record," stating that the motion is significant to an issue in
the case. The motion states that a complete copy of the order
allowing wife's counsel to withdraw was not included in the
record. The trial court's ruling recited the fact that wife's
counsel had withdrawn. Its decision to allow wife an additional
opportunity to present evidence was based upon wife's status as a
pro se litigant. We do not question the fact that wife's counsel
had withdrawn. Therefore, the motion has no bearing on our
opinion and we need not rule on it.
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365, 344 S.E.2d 389, 393 (1986). We cannot say that the trial
judge's decision to exercise his equitable authority and allow
wife another opportunity to present evidence was an abuse of
discretion.
II. Spousal Support
Husband challenges the trial court's decision to award
spousal support. He contends that the parties' marriage was a
"green card" marriage intended by the parties only as a tool by
which wife could enter the United States. However, the trial
judge, who heard the witnesses and had the opportunity to judge
their credibility, rejected husband's characterization. The
judge found as follows: "I don't find a green-card marriage.
Clearly, I don't think as far as they had a relationship, that
relationship had some validity. It had some sound nature to it."
The evidence proved that the parties lived together, albeit
for a short time, prior to and after the marriage. Husband
returned to the United States when his military obligation ended.
Later, husband and his mother flew to Japan to see the parties'
newborn child. Both parties provided financial assistance to
each other before wife's arrival in the United States.
Therefore, the record contains evidence to support the trial
court's factual finding that there was a true marriage between
the parties. "The judgment of a trial court sitting in equity,
when based upon an ore tenus hearing, will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
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Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
Husband also challenges the amount of spousal support
awarded to wife.
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
The trial court found that both parties made monetary and
non-monetary contributions to the marriage. Husband's income was
$40,000, while wife was unemployed and lacked both language
skills and transportation. It is manifest from the court's
ruling that the judge considered the statutory factors before
determining that wife was entitled to receive $600 in monthly
spousal support. The record does not establish that the trial
court abused its discretion in the amount of spousal support
awarded.
III. INS Affidavit of Support
Husband argues that the trial court erred in admitting the
INS Affidavit of Support and in placing emphasis on the
affidavit. At trial, however, counsel did not object to the
admission of the affidavit. Therefore, husband has waived any
objection to the admission of the affidavit into evidence. Rule
5A:18.
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Accordingly, the decision of the circuit court is summarily
affirmed. Affirmed.
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