Albert v. Dougherty v. Elizabeth C. Dougherty ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, * Bray and Annunziata
ALBERT V. DOUGHERTY
v. Record No. 0368-95-4 MEMORANDUM OPINION**
PER CURIAM
ELIZABETH C. DOUGHERTY AUGUST 29, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
(John M. DiJoseph; Sattler & DiJoseph, on brief), for
appellant.
No brief for appellee.
Albert V. Dougherty (husband) appeals the decision of the
circuit court awarding spousal support to Elizabeth C. Dougherty
(wife) and deciding other issues. Husband raises the following
issues on appeal: (1) whether the award of attorney's fees to
wife was appropriate; (2) whether the chancellor erred in
awarding wife a portion of husband's pension; (3) whether the
chancellor erred determining husband's income; and (4) whether
the award of spousal support was improper. Upon reviewing the
record and husband's opening brief, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the
chancellor's decision. Rule 5A:27.
*
Justice Koontz participated in the decision of this case
prior to his investiture as a Justice of the Supreme Court of
Virginia.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Award of Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the chancellor and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The chancellor considered the circumstances of the
litigation, including husband's refusal to participate in
discovery and his contest of the proposed fee award requiring
wife to retain the services of an expert witness, and the
relative positions of the parties and made an award of fees in
favor of wife appropriate to the case. Based on our review of
the record, we cannot say that the award of attorney's fees and
costs for an expert witness was unreasonable or an abuse of the
chancellor's discretion.
II. Pension
The chancellor is vested with broad discretion in fashioning
an equitable distribution award.
Unless it appears from the record that the
chancellor has abused his discretion, that he
has not considered or has misapplied one of
the statutory mandates, or that the evidence
fails to support the findings of fact
underlying his resolution of the conflict in
the equities, the chancellor's equitable
distribution award will not be reversed on
appeal.
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Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987)(citation omitted).
The chancellor calculated the marital share of husband's
pension as eighty percent of the total, based upon thirty-five
total years of husband's pension accumulation and twenty-eight
years of marriage during husband's employment. The marital
share, thus calculated, satisfied the provisions of Code
§ 20-107.3(G)(1). The chancellor also awarded wife no more than
fifty percent of the marital share. Id. Therefore, as the
chancellor's award to wife of forty percent of husband's pension
satisfied Code § 20-107.3, we cannot say the chancellor abused
his discretion in making the award.
Nor did the chancellor err in failing to require a present
value calculation for husband's pension. "A present value
calculation is of direct use only where payment of the portion of
the monetary award attributable to the pension is to occur
immediately rather than over a period of time." Zipf v. Zipf, 8
Va. App. 387, 397, 382 S.E.2d 263, 269 (1989). The parties did
not intend to make an immediate monetary award in this case.
III. Determination of Income
"The weight which should be given to evidence and whether
the testimony of a witness is credible are questions which the
fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App.
523, 528, 351 S.E.2d 598, 601 (1986). "[T]he judgment of the
trial court on questions of fact is entitled to great weight and
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will not be disturbed unless it is plainly wrong or without
evidence to support it." Smith v. Board of Supervisors, 201 Va.
87, 91, 109 S.E.2d 501, 505 (1959). Husband asserted a
significant decline in income in the months prior to the final
hearing. Wife also introduced evidence of husband's income. We
cannot say the chancellor's factual determination that husband's
income in previous years more accurately reflected husband's
actual earnings was plainly wrong or without evidence to support
it. Accordingly, we affirm the chancellor's decision to compute
spousal support using $53,000 as husband's annual income.
IV. Spousal Support
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 chancellor noted those factors, evident on the
record and appropriate to the determination under the statute,
upon which he based his award. We cannot say the chancellor
abused his discretion in awarding wife $200 a month in spousal
support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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