Bruce R. O'Brien v. Shillest Clayton ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BRUCE R. O'BRIEN
MEMORANDUM OPINION *
v. Record Nos. 0771-99-2 and 1178-99-2 PER CURIAM
NOVEMBER 9, 1999
SHILLEST CLAYTON
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
(James A. Watson, II; Lucy C. Chiu; Surovell,
Jackson, Colten & Dugan, P.C., on brief), for
appellant.
(Terrence R. Batzli; M. Alicia Finley;
Barnes & Batzli, P.C., on brief), for
appellee.
Bruce R. O'Brien (O'Brien) appeals the final decree of
divorce entered by the circuit court on April 22, 1999. 1 O'Brien
contends that the trial court erred in its award of spousal
support to Shillest Clayton (Clayton). Specifically, O'Brien
contends that the trial court abused its discretion by
(1) awarding Clayton $1,450 in monthly spousal support without
considering the statutory factors in existence on the date O'Brien
filed his bill of complaint; and (2) awarding Clayton an amount
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
O'Brien filed two appeals raising the same issues. By
order of this Court and with the agreement of the appellee, these
appeals were consolidated.
beyond his ability to pay and in excess of her demonstrated need.
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. See Rule 5A:27.
This matter commenced on June 30, 1996, when O'Brien filed
his bill of complaint. The evidence was submitted by deposition
testimony and exhibits. "A decree based on testimony in
deposition form, while presumed to be correct, is not given the
same weight as one where the evidence is heard ore tenus by the
chancellor." Moore v. Moore, 212 Va. 153, 155, 183 S.E.2d 172,
174 (1971). However, "'the decree is presumed to be correct and
should not be disturbed for lack of proof if the controlling
factual conclusions reached are sustained by a fair
preponderance of the evidence.'" Nash v. Nash, 200 Va. 890,
898-99, 108 S.E.2d 350, 356 (1959) (citations omitted).
Code § 20-107.1
O'Brien contends that the trial court failed to consider the
statutory factors set out in Code § 20-107.1 before awarding
Clayton $1,450 in monthly spousal support. "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). "In fixing the amount of the spousal support
award, a review of all of the factors contained in Code § 20-107.1
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is mandatory, and the amount awarded must be fair and just under
all of the circumstances . . . ." Gamble v. Gamble, 14 Va. App.
558, 574, 421 S.E.2d 635, 644 (1992).
The requirement that the trial court
consider all of the statutory factors
necessarily implies substantive
consideration of the evidence presented as
it relates to all of these factors. This
does not mean that the trial court is
required to quantify or elaborate exactly
what weight or consideration it has given to
each of the statutory factors. It does
mean, however, that the court's findings
must have some foundation based on the
evidence presented. Therefore, we hold that
in a determination involving spousal
support, if the court's findings do not have
evidentiary support in the record, then the
court has abused its discretion.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986).
The trial court did not expressly refer to the statutory
factors set out in Code § 20-107.1, nor did it expressly analyze
the factors. Therefore, we are required to ensure that the trial
court's decision had evidentiary support. We note that the
parties prepared memoranda of law prior to the trial court's
issuance of the first memorandum opinion in which each party
discussed the statutory factors. O'Brien specifically addressed
the statutory factors prior to the issuance of the trial court's
second memorandum opinion and final decree of divorce. The record
demonstrates that evidence pertinent to the statutory factors was
received by the trial court. That evidence supports the trial
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court's decision to award Clayton $1,450 a month in spousal
support.
It is clear that the trial court considered the parties'
earning capacities, obligations, needs and financial resources.
See Code § 20-107.1(1). At the time of the hearing, Clayton was
enrolled in a graduate program in architecture at the University
of Pennsylvania. Credible evidence supports the conclusion that
the parties contemplated Clayton's return to graduate school,
particularly after O'Brien obtained tenure. O'Brien admitted that
the parties had discussed Clayton returning to school. Other
witnesses testified that O'Brien and Clayton discussed these
plans, even noting that he might take a sabbatical or leave of
absence to accompany her. See Code § 20-107.1(2).
O'Brien contends that the trial court erred by failing to
impute income to Clayton, based upon her previous earnings. He
correctly notes that "[o]ne who seeks spousal support is obligated
to earn as much as he or she reasonably can to reduce the amount
of the support need." Srinivasan v. Srinivasan, 10 Va. App. 728,
734, 396 S.E.2d 675, 679 (1990). However, this is not an instance
where a former spouse failed to contribute towards her own
support. In this case, Clayton enrolled in graduate school, as
contemplated by the parties throughout their marriage. She then
used reasonable means to provide a portion of her own support
while attending school. She received a scholarship grant of
$7,150; several loans totaling $18,500; and $2,000 in work study.
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Her expenses, found by the trial court as "necessary and prudent,"
left her with a shortfall of $1,457 each month. Therefore,
Clayton contributed towards her own support and established a need
for the remaining balance. We find no abuse of discretion in the
trial court's refusal to impute income to Clayton under these
circumstances.
O'Brien also contends that he cannot afford to pay $1,450 to
Clayton out of his monthly disposable income of $2,800 because his
expenses total $2,544. We note that O'Brien's monthly expenses
included $185 for student loans which he had previously deferred
but which he no longer deferred; $500 in repayment to his parents
of a $5,000 loan; and $400 in monthly credit card payments.
O'Brien admitted that he earned more than $47,000 annually as of
December 1997. His 1995 income tax return reported gross net
income of $47,834.
The evidence demonstrated that the parties had a modest
lifestyle during the marriage, which lasted five years prior to
husband's decision to desert the marriage. While O'Brien had
several health problems, he testified in his deposition that he
was fine. There was no evidence indicating that his earnings were
affected by any of his reported health problems. See Code
§ 20-107.1(3), (4) and (5).
The record supports the trial court's finding that O'Brien
deserted the marriage. Furthermore, when Clayton's income fell in
the fall of 1995, O'Brien responded by paying only those debts
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that were listed in his name, contributing no funds towards
Clayton's food, clothing, utilities or maintenance. In contrast,
the court noted that Clayton had "consistently attempted to
maintain some kind of employment and to contribute to the family
income." She used a portion of her sexual discrimination
settlement to buy clothes and supplies for O'Brien prior to his
research trip to London. She also maintained the family's
obligations while O'Brien was abroad. See Code § 20-107.1(6).
Both parties received half of the marital assets, which were
not extensive. O'Brien was entitled to deduct from his income any
spousal support paid to Clayton. See Code § 20-107.1(7), (8) and
(9).
As evidence supports the trial court's decision to award
$1,450 in monthly spousal support to Clayton, we affirm that
decision.
Demonstrated Need and Ability to Pay
O'Brien also contends that the trial court erred in awarding
$1,450 to Clayton because she actually had $36,395 available to
her in loans, work study, scholarships and grants. The evidence
indicated that Clayton's monthly income was $3,157, based upon her
scholarship, student loans and work study. We find no error in
the trial court's assessment of the amount by which Clayton's
expenses exceeded her income. As noted above, O'Brien's claimed
expenses included certain payments which were, at a minimum,
flexible in amount.
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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