Randall v. Phelps, Sr. v. Doris Carol Powell Phelps ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
RANDALL V. PHELPS, SR.
MEMORANDUM OPINION *
v. Record No. 1155-98-1 PER CURIAM
DECEMBER 22, 1998
DORIS CAROL POWELL PHELPS
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Rodham T. Delk, Jr., Judge
(Cheshire I'Anson Eveleigh; Wolcott, Rivers,
Wheary, Basnight & Kelly, on brief), for
appellant.
(W. Jeffrey Overton; Ferguson, Rawls,
MacDonald, Overton & Grissom, on brief), for
appellee.
Randall V. Phelps, Sr. (husband) appeals the decision of the
circuit court awarding Doris Carol Powell Phelps (wife) $750 in
permanent monthly spousal support. Husband contends that the
trial court abused its discretion in awarding wife spousal
support. 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.
On appeal,
[u]nder familiar principles we view [the]
evidence and all reasonable inferences in the
light most favorable to the prevailing party
below. Where, as here, the court hears the
evidence ore tenus, its finding is entitled
to great weight and will not be disturbed on
appeal unless plainly wrong or without
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
evidence to support it.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
In a Stipulation Agreement signed in 1987, the parties
agreed that husband would pay wife monthly "temporary spousal
support" of $200 until July 1, 1989. The trial court ruled that
the agreement did not bar wife from seeking permanent spousal
support, because its plain language addressed only temporary
spousal support. Husband does not challenge the court's
interpretation of the agreement, but contends that the court
failed to properly weigh the statutory factors and wife's need
for 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 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).
"[W]hen the record discloses that the [trial] court has
considered all of the statutory factors, its ruling will not be
disturbed on appeal absent a clear abuse of discretion." Lambert
v. Lambert, 10 Va. App. 623, 628, 395 S.E.2d 207, 210 (1990).
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The parties were married in 1984, but wife moved from the
marital home in 1987. Despite the relatively short period of
cohabitation, the evidence indicated that the parties continued
to entertain the possibility of reconciliation and held
themselves out as married for almost ten years. They traveled
together on husband's business trips, vacationed together as a
family with their child, and continued a sexual relationship.
The trial court found that wife continued to contribute to the
marriage and husband's business, although husband denied that
wife's employment aided the business. Wife's proffer indicated
she had gross monthly income of $600, with expenses of $1,666.
Husband's proffer listed his gross monthly income as $11,000,
with total expenses of $8,032. While husband alleged that wife
was underemployed, wife indicated she and husband agreed that she
would homeschool the parties' child. The trial court found that
wife decided against seeking pendente lite spousal support after
the agreed temporary spousal support payments ceased because she
hoped to reconcile with husband.
The record demonstrates that the trial court considered the
evidence and the statutory factors and made its award based upon
wife's needs and husband's ability to pay. We cannot say that
the award of $750 in monthly spousal support was an abuse of
discretion.
Accordingly, the decision of the circuit court is
summarily affirmed.
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Affirmed.
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