Keith A. Kidd v. Gwendolyn R. Kidd ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Decker
UNPUBLISHED
Argued at Chesapeake, Virginia
KEITH A. KIDD
MEMORANDUM OPINION* BY
v. Record No. 2038-13-1 JUDGE MARLA GRAFF DECKER
JUNE 10, 2014
GWENDOLYN R. KIDD
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Allyson D. Brown-Lee (The Law Office of Allyson Denise
Brown-Lee, PLLC, on brief), for appellant.
Alex T. Mayo, Jr. (Besianne Tavss Maiden; Tavss Fletcher, on
brief), for appellee.
Keith A. Kidd (the husband) appeals a final divorce decree of the circuit court. On appeal,
he argues that the circuit court erred by: ruling that he did not prove that Gwendolyn R. Kidd (the
wife) committed adultery; ruling that he condoned the wife’s adultery; awarding spousal support
and equitable distribution to the wife; excluding his son’s testimony; and awarding attorney’s fees to
the wife. The wife counters that the circuit court’s rulings were correct and, consequently, she is
entitled to an award of appellate attorney’s fees and costs.
We hold that the circuit court was not plainly wrong in finding that the husband failed to
prove the wife’s adultery by clear and convincing evidence. Further, the court did not abuse its
discretion in finding that for equitable distribution purposes, the husband condoned any adultery
shown to have occurred. Likewise, the circuit court did not abuse its discretion in fashioning the
equitable distribution and spousal support awards, as its determinations were reasonable in light of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the record. Additionally, because the record does not contain a proffer of the excluded testimony of
the husband’s son, we do not consider his assignment of error challenging the exclusion of that
testimony. Finally, the court did not abuse its discretion in awarding the wife attorney’s fees, but
there is no basis for requiring additional payment. Consequently, we deny the wife’s request for
appellate attorney’s fees and costs incurred on appeal. Accordingly, we affirm.
I. PROCEDURAL BACKGROUND
The parties married on October 4, 1985. After twenty-eight years of marriage, the husband
petitioned for divorce on the ground of the wife’s adultery. The wife filed a cross-claim for divorce
on the grounds of cruelty and desertion, or alternatively, on the basis of living separately for more
than one year. Both parties presented evidence at the one-day hearing.
The circuit court entered a final divorce decree based upon the parties’ separation for a
period of more than one year. The court held that the husband failed to present sufficient evidence
to prove the wife’s adultery as the ground for the divorce. The circuit court did, however, consider
the wife’s adultery for equitable distribution purposes, but ultimately found that it did not affect the
equitable distribution award due to condonation. The court awarded each party thirty percent of the
marital share of the other party’s pension. After concluding that the wife was entitled to spousal
support and that the husband had the ability to pay such support, the court awarded the wife $900
per month. Further, in light of the “financial needs and resources of each party,” the court awarded
the wife attorney’s fees in the amount of $1,200. The husband appealed the final order.
II. ANALYSIS
The husband challenges the circuit court’s findings related to adultery, awards of spousal
support and equitable distribution, exclusion of his son’s testimony, and award of attorney’s fees.
The wife asks for an award of attorney’s fees and costs associated with this appeal.
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A. Adultery as Basis for Divorce
The husband contends that he presented evidence sufficient to prove that the wife committed
adultery with Anthony Smith. The wife responds that the record supports the circuit court’s ruling
that evidence of adultery was not “clear and convincing,” as required by law.
The record establishes that the parties’ marriage was tumultuous. Over the course of the
marriage, they separated five times. They reconciled after the first four separations, with periods of
separation ranging from approximately six months to one year. Their fifth and final separation
occurred sometime in 2011.
The husband introduced testimony from Beverly Smith about the wife’s relationship with
her husband Anthony Smith. Beverly Smith suspected her husband of having an affair with the
wife, which continued to exist even at the time of the hearing. Ms. Smith testified that the wife
apologized to her, as well as told her that Anthony was “playing” them, “playing both ends of the
stick,” and that he “need[ed] peace and space.” She also stated that she and Anthony Smith were
separated. Although she testified that she had “personal knowledge” that the wife and Smith were
in an “intimate relationship” at the time of the hearing, she did not explain the basis for her belief.
The husband testified that the wife admitted to having an affair with Anthony Smith. He
stated that Smith took the wife to her cancer treatment appointments. When the parties reconciled
in 2010, the wife promised to stop all contact with Smith. However, she did not keep that promise.
The husband testified that he believed that the wife and Smith continued “the relationship,” even at
the time of the hearing. According to the husband, he found Smith’s “sex pill” in 2011 when he
“cleared the apartment out.” The husband also saw the two together in public “all the time.”
Further, the husband testified that the wife told him she and Smith planned to marry.
The wife testified and denied being intimate with Smith. She explained that she and Smith
were “the best of friends” and that she lived with him for over a year. The wife further explained
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that they had separate bedrooms and divided the rent. The parties’ daughter, Jessica Kidd, testified
that Smith was a “friend of the family.” Jessica also testified that she was “aware of a relationship”
between the wife and Smith. At the time of the hearing, the wife lived with Jessica and Jessica’s
son, even though her name was not on the lease. Although the wife sometimes parked her car
overnight at Smith’s apartment, she testified that she did not spend the night at Smith’s residence
but parked there due to the possibility of her car getting towed in front of her apartment.1
The circuit court, after hearing all of the testimony, found that the evidence was not
sufficient to prove that the divorce should be granted on the ground of adultery. The court
specifically explained its decision, stating for the record that the evidence did not “rise[] to the
standard to make a finding that divorce should be granted on the ground of adultery.” The court
noted that Beverly Smith’s testimony was “not particularly helpful . . . [or] relevant.”
It is well settled that this Court will not set aside a circuit court’s factual finding unless it is
“‘plainly wrong or without evidence to support it.’” Hughes v. Hughes, 33 Va. App. 141, 146, 531
S.E.2d 645, 647 (2000) (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990)). If credible evidence in the record supports the circuit court’s findings, this Court “‘may not
retry the facts or substitute our view of the facts for those of the trial court.’” Congdon v. Congdon,
40 Va. App. 255, 266, 578 S.E.2d 833, 838 (2003) (quoting Calvin v. Calvin, 31 Va. App. 181, 183,
522 S.E.2d 376, 377 (1999)). “[T]he trier of fact ascertains a witness’ credibility, determines the
weight to be given to [his or her] testimony, and has the discretion to accept or reject any of the
witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc).
1
The wife and Jessica testified that Jessica and Anthony Smith were named on the lease.
The wife testified that this apartment, which she shared with Jessica and Jessica’s son, was
approximately fifteen minutes away from Smith’s. She explained that when she parked at
Smith’s apartment, Smith would drive her to her own apartment for her to sleep, drive back to
his home, and pick her up to drive her to her job in the morning.
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The legal standard regarding adultery is equally clear. “‘One who alleges adultery has the
burden of proving it by clear and convincing evidence.’” Hughes, 33 Va. App. at 146, 531 S.E.2d
at 647 (quoting Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987)). Even
“strongly suspicious circumstances” are insufficient to establish adultery. Painter v. Painter, 215
Va. 418, 420, 211 S.E.2d 37, 38 (1975). “[I]n determining whether clear and convincing evidence
supports a finding of adultery, the Supreme Court and this Court have consistently reviewed the
record to determine not only whether the evidence merely established suspicious conduct, but also
whether a credible explanation existed for the circumstances.” Hughes, 33 Va. App. at 150, 531
S.E.2d at 649; see also Dooley v. Dooley, 222 Va. 240, 246, 278 S.E.2d 865, 868-69 (1981)
(holding that the lower court erred in finding adultery where the evidence had a possible innocent
explanation).
Most of the evidence presented to the court was the contradictory testimony of the parties. It
is clear from the record that for purposes of the “clear and convincing” standard, the circuit court
did not accept the husband’s testimony that the wife admitted to a sexual relationship with Anthony
Smith. The court did not abuse its discretion in rejecting this portion of the husband’s testimony.
See Street, 25 Va. App. at 387, 488 S.E.2d at 668 (explaining that the trier of fact has the discretion
to reject “any of the witness’ testimony”).
The wife testified that she lived with Smith as friends during her course of cancer treatment.
She additionally testified that the husband refused to help care for her while she received cancer
treatments or even accompany her to surgery. The husband testified that Smith took her to her
medical appointments. Although the wife and the husband provided very different stories from
each other, there is no dispute that the wife and Smith had and, in fact, continue to have a close
relationship. The evidence could lead to a variety of different conclusions, including that the wife
lived with Smith platonically for financial support and other help while she underwent her cancer
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treatments and thereafter. Because the circuit court could conclude that the evidence supported an
explanation for the wife’s actions other than adultery, we cannot say that the circuit court erred in its
role as factfinder in determining that the husband failed to prove by clear and convincing evidence
that the wife committed adultery.
The husband highlights Jessica’s testimony that the wife and Smith were “in a relationship.”
This testimony, although indicative of a close relationship, does not elaborate on the type of
relationship, nor does it prove that a physical relationship existed. The husband also relies upon
Beverly Smith’s testimony that the two were in an “intimate relationship” at the time of the hearing.
However, the circuit court did not err in finding that Beverly Smith’s testimony was “not
particularly helpful,” because Smith did not explain the basis for her belief, and she was admittedly
the separated spouse of the alleged paramour. Finally, we note that the existence of Smith’s bottle
of erectile dysfunction medication, while tending to prove that Smith engaged in sexual activity, did
not prove by clear and convincing evidence that the wife was his partner.
The circuit court heard the testimony at an ore tenus hearing. Consequently, “‘its factual
findings are entitled to great weight’” on appeal. Mayer v. Corso-Mayer, 62 Va. App. 713, 728, 753
S.E.2d 263, 270 (2014) (quoting Mullin v. Mullin, 45 Va. App. 289, 299-300, 610 S.E.2d 331, 336
(2005)). The court “‘ascertains a witness’ credibility, determines the weight to be given to their
testimony, and has discretion to accept or reject any of the witness’ testimony.’” Layman v.
Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoting Street, 25 Va. App. at 387,
488 S.E.2d at 668). “‘[T]he decision of the trial judge is peculiarly entitled to respect for he saw the
parties, heard the witnesses testify and was in closer touch with the situation than the [appellate]
Court, which is limited to a review of the written record.’” Ferguson v. Grubb, 39 Va. App. 549,
557, 574 S.E.2d 769, 772 (2003) (quoting Sutherland v. Sutherland, 14 Va. App. 42, 44, 414 S.E.2d
617, 618 (1992)).
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Reviewing the record, we conclude that a credible theory existed to explain the
circumstances of the wife’s cohabitation and close relationship with Smith. Therefore, this Court
will not hold that the circuit court erred in finding that the evidence did not rise to the clear and
convincing level of proof necessary to establish adultery as a basis for divorce.
B. Condonation
The husband argues that the circuit court erred by finding that he condoned any adultery that
the wife committed. He focuses on his “condition” to the 2010 reconciliation that the wife was to
have no further contact with Smith. The husband suggests that the evidence proved that the wife’s
failure to keep her promise to cease contact with Anthony Smith nullified his earlier condonation.
The wife maintains that the husband misrepresents the circuit court’s holding, in that it considered
the condonation defense only to the extent that the adultery related to equitable distribution.
The record supports the conclusion that the circuit court considered the wife’s adultery for
equitable distribution purposes, but ultimately found that it did not affect the equitable distribution
award due to the husband’s condonation. This consideration was in contrast to the circuit court’s
finding, under the dissimilar clear and convincing standard, that the evidence of adultery presented
by the husband was insufficient to prove adultery as a ground for the divorce.2 Taking into account
the entire record before it, the court discussed the factors listed in the equitable distribution statute.
The court found:
A third separation occurred in August, 2008 when the
husband discovered his wife was having sexual relations with A.
Smith. This separation lasted until December 2008 when the parties
reconciled, giving the wife a condonation defense to the adultery
charge.
2
We note that the husband’s challenge to the circuit court’s condonation findings fails to
the extent that he believes the circuit court applied the condonation defense to bar granting the
divorce on the basis of adultery. The court clearly did not consider condonation as related to the
basis for the divorce, in view of its finding that the evidence was not sufficient to prove adultery
under the “clear and convincing” standard.
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A fourth separation began in December, 2009 which last[ed]
about 10 months and the issue of additional adultery by the wife
arose again. Again the husband agreed to reconcile giving rise to a
second defense of condonation.
The circuit court’s “equitable distribution award will not be overturned unless the Court
finds ‘an abuse of discretion, misapplication or wrongful application of the equitable distribution
statute, or lack of evidence to support the award.’” Wiencko v. Takayama, 62 Va. App. 217,
229-30, 745 S.E.2d 168, 174 (2013) (quoting McIlwain v. McIlwain, 52 Va. App. 644, 661, 666
S.E.2d 538, 547 (2008)).
In making factual determinations relevant to an equitable distribution award, a circuit court
acts within its discretion as long as the evidence in the record would allow a reasonable jurist to
reach the same conclusions. See, e.g., Wright v. Wright, 61 Va. App. 432, 463-64, 737 S.E.2d 519,
534 (2013). In other words, credible evidence must support the findings made by the court. See,
e.g., Calvin v. Calvin, 31 Va. App. 181, 183, 522 S.E.2d 376, 377 (1999). The law makes clear that
the standard for proving adultery for purposes of providing a basis for divorce is higher than it is
when used as a factor for equitable distribution purposes. Thus, the law permits a circuit court to
find that a spouse has failed to meet the higher burden of proof as to the basis for the divorce, but to
consider adulterous behavior as proved insofar as it relates to the equitable distribution
determination. That is exactly what happened here.
To the extent that the husband challenges the circuit court’s condonation findings as related
to equitable distribution, we review “‘the evidence in the light most favorable to the prevailing
party, granting it the benefit of any reasonable inferences.’” Hamad v. Hamad, 61 Va. App. 593,
596, 739 S.E.2d 232, 234 (2013) (quoting White v. White, 56 Va. App. 214, 216, 692 S.E.2d 289,
290 (2010)). “[T]he abuse of discretion standard, which governs our decision here, means that ‘a
reviewing court [must] show enough deference to a primary decisionmaker’s judgment that the
court does not reverse merely because it would have come to a different result in the first instance.’”
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Wiencko, 62 Va. App. at 235, 475 S.E.2d at 177 (quoting Lawlor v. Commownealth, 285 Va. 187,
212-13, 738 S.E.2d 847, 861 (2013)). “An abuse of discretion occurs only when ‘reasonable jurists’
could not disagree as to the proper decision.” Hamad, 61 Va. App. at 607, 739 S.E.2d at 239.
In this case, the court found that the husband condoned any adultery committed by the wife
when he reconciled with her in 2008 and 2010. It held that the husband did not prove that the wife
committed any further adultery in 2011 preceding the fifth and final separation. Condonation is
“‘the remission, by one of the married parties, of an offense which he knows the other has
committed against the marriage, on the condition of being continually afterward treated by the other
with conjugal kindness.’” Cutlip, 8 Va. App. at 621, 383 S.E.2d at 275 (quoting Owens v. Owens,
96 Va. 191, 195, 31 S.E. 72, 74 (1898)). However, “[c]ondoned adultery is revived where the guilty
party resumes his association with his paramour.” Id.
There was evidence presented at the hearing related to condonation. The parties reconciled
in 2010, conditioned upon the wife’s promise to stop all contact with Smith. They then separated
sometime in 2011. The only evidence that the husband presented suggesting an affair between the
2010 reconciliation and the 2011 separation was his own testimony. He claimed that: (1) when they
separated in 2011, the wife told him that she was moving in with Smith, loved him, and that they
planned to marry; and (2) when the husband “cleared the apartment out” in 2011, he found Smith’s
bottle of erectile dysfunction medication. The other evidence that tended to show some type of
relationship between the wife and Smith either did not have a specified period of time associated
with it or tended to prove a relationship before the parties’ 2010 reconciliation or after their 2011
separation.
The circuit court did not abuse its discretion in rejecting the portion of the husband’s
testimony stating that the wife intended to move in with Smith and marry him, because
contradictory testimony tended to show that the wife moved in with her daughter and grandson
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rather than Smith. See Street, 25 Va. App. at 387, 488 S.E.2d at 668. As for the husband’s
discovery of the medication bottle, the date on the bottle was February 2010. The parties reconciled
in October or November of 2010. It is unclear from the record whose apartment the parties lived in
upon their subsequent reconciliation. Thus, it is possible that the medication remained in the
apartment from a time prior to their final reconciliation. Regardless, the court was entitled to reach
any number of conclusions relating to the pill bottle based on all of the other evidence in the record,
including that Smith could have had a paramour other than the wife.
Viewing the record in the light most favorable to the wife, who prevailed below, the
evidence supports the circuit court’s findings that condonation applied to any adultery preceding the
2010 reconciliation and the husband did not prove any further adultery preceding the final
separation in 2011. Therefore, the circuit court did not abuse its discretion.
C. Spousal Support and Equitable Distribution
The husband argues that the circuit court erred by awarding the wife spousal support and
equitable distribution. He asserts that the wife lives with her “paramour in a relationship tantamount
to a marriage and receives financial support from him.” He also alleges that the wife’s conduct
caused the dissolution of the marriage and she did not need spousal support because she had her
own resources and her expenses were inflated. The wife responds that relevant evidence supported
the spousal support and equitable distribution awards.3
3
The wife also counters that the husband failed to properly present his assignment of
error by neglecting to include any relevant authority as to his cohabitation argument. The
husband’s brief relies on the provision of Code § 20-109(A) that spousal support may end if the
receiving party “has been habitually cohabitating with another person in a relationship analogous
to marriage for one year or more.” The wife declines to address the husband’s cohabitation
argument because Code § 20-109 “applies to modification of the initial award” and “is in no way
applicable to this case.” Rule 5A:20(e) requires that an appellant’s opening brief include “[t]he
standard of review and the argument (including principles of law and authorities) relating to each
assignment of error.” We conclude that the authorities cited by the husband support by analogy
his proposition that just as cohabitation in a relationship analogous to marriage can trigger
termination of spousal support, it should function as a factor preventing awards of spousal
support and equitable distribution. Therefore, this assignment of error is not procedurally barred.
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The circuit court awarded the wife $900 a month in spousal support based on her financial
need and the husband’s ability to pay. The court also awarded each party thirty percent of the other
party’s pension when it fashioned the equitable distribution award. The court explained that its
decision was “largely influenced by the ‘needs and financial resources of the parties,’ the other
factors being somewhat neutral.”
This Court will not disturb a spousal support award absent an abuse of discretion.
Thomasson v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66 (1983); Fox v. Fox, 61 Va. App.
185, 203, 734 S.E.2d 662, 671 (2012). Similarly, as already noted, this Court will not overturn a
circuit court’s equitable distribution award unless the circuit court abused its discretion, misapplied
the equitable distribution statute, or lacked evidence to support the award. Wiencko, 62 Va. App. at
229-30, 745 S.E.2d at 168. “An abuse of discretion occurs only when ‘reasonable jurists’ could not
disagree as to the proper decision.” Hamad, 61 Va. App. at 607, 739 S.E.2d at 239.
The statute governing spousal support awards provides that the circuit court shall consider
the “obligations, needs and financial resources of the parties,” their standard of living during the
marriage, the duration of the marriage, the parties’ physical and mental conditions, their
contributions to the well-being of the family, their property interests, their earning capacities, the
equitable distribution provisions, and any other relevant factors. Code § 20-107.1(E). In
determining equitable distribution, a court must consider the parties’ contributions to the well-being
of the family and marital property, the duration of the marriage, the parties’ physical and mental
conditions, the circumstances contributing to the dissolution of the marriage, the acquisition of
marital property, the parties’ debts, the character of all marital property, tax consequences to the
parties, any use of marital property for a nonmarital purpose when done in anticipation of divorce,
and other relevant factors. Code § 20-107.3(E). “[A]s long as the trial court considers all the
factors, it is at the court’s discretion to determine what weight to give each factor when making the
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equitable distribution award.” O’Loughlin v. O’Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323,
325 (1995).
In support of his argument that the circuit court erred by awarding the wife spousal support
and equitable distribution, the husband focuses on: his allegation that the wife cohabitated with
Anthony Smith in a relationship analogous to marriage at the time of the hearing, the wife’s conduct
leading to the dissolution of the marriage, and her financial needs. In the court below, the husband
attempted to prove that the wife and Smith lived together at the time of the hearing. He showed that
Smith’s name was on the lease for the apartment where the wife lived and that Smith habitually paid
at least half of the wife’s rent.
The testimony of the wife and her daughter, however, contradicted the allegation that the
wife and Smith lived together. The wife testified that she shared the apartment with her daughter
and Smith lived elsewhere, even though his name was on the lease and hers was not on the lease.
The daughter’s testimony that she lived in the apartment with her child and the wife and that her
name was on the lease with Smith’s corroborated the wife’s testimony. As the fact finder, the
circuit court was entitled to accept their testimony over that of the husband. See Street, 25 Va. App.
at 387, 488 S.E.2d at 668.
The husband also alleges that the wife’s conduct, other than her relationship with Smith,
caused the dissolution of the marriage and had a negative impact on the family. However, the
wife’s alleged conduct that the husband contends eroded the marriage was not shown to have led to
the parties’ final separation in 2011. The wife’s 1989 assault and battery of the husband occurred
twenty-two years before their final separation. The husband did not specify when the wife opted to
get her own apartment instead of use her money to save the marital house from foreclosure, or when
she changed the locks on the apartment without giving him a key. The record simply does not
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compel the conclusion that the wife caused the dissolution of the marriage or that the circuit court
abused its discretion in declining to make that finding.
As to the parties’ financial resources and needs, both parties were employed full-time.
Evidence established that the wife’s annual income was $34,653.32, and the husband’s was
$78,537.16. The circuit court found that the husband earned approximately $44,000 more a year
than the wife.
The wife submitted evidence that her expenses were $3,290 a month. At the time of the
hearing, the wife’s cancer was in remission, but she had diabetes and a plethora of other medical
conditions requiring her to take between fifteen and twenty pills each day. The wife could not
afford rent. She testified that both Smith and her father provided her financial support. The
husband cross-examined her about her expenses, and she admitted that she did not pay $100 for
eyeglasses every month. The wife also admitted that the property tax was a yearly, not monthly,
expense. Cross-examination similarly elicited testimony that she did not always pay $125 a month
for gifts.
The circuit court concluded that the wife’s stated expenses were inflated and that her
monthly living expenses actually totaled $2,663, which still exceeded her income by $900 a month.
The court clearly considered the wife’s evidence as to her expenses as well as flaws in her
calculations that were reflected in her testimony on cross-examination. The circuit court made an
independent determination of the wife’s monthly expenses, and the record supports that
determination.
For these reasons, the circuit court’s determinations as to the parties’ respective financial
resources and needs were reasonable. Because the circuit court’s determinations were supported by
the record, we hold that it did not abuse its discretion in fashioning the spousal support and
equitable distribution awards.
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D. Exclusion of Testimony
The husband argues that the circuit court erred by not allowing his adult son to testify about
the son’s relationship with the wife and how she treated him during the parties’ marriage. During
the hearing, the husband offered his son’s testimony as rebuttal evidence to the wife’s statement that
he was abusive to his son. The son testified that he lived with the parties for approximately ten
years, but left their home in 1996. He stated that he was removed from the home for child abuse.
The circuit court inquired as to the relevance of the testimony. The husband told the court that he
was attempting to show the cause of the dissolution of the marriage for purposes of spousal support
and equitable distribution. The court excluded the testimony, concluding that “it is just too far
removed for it to be of any relevance in resolving this case.” The son did not testify further. The
husband did not proffer the excluded alleged testimony for the record.
“When evidence is excluded by the court, the aggrieved party must make a proper proffer of
the excluded testimony to preserve the ruling for appellate review.” Klein v. Klein, 11 Va. App.
155, 160, 396 S.E.2d 866, 869 (1990); see also Galumbeck v. Lopez, 283 Va. 500, 507, 722 S.E.2d
551, 555 (2012). This is an important requirement which enables appellate review. “When
testimony is delivered but excluded upon objection,” this Court, upon review, “has a record of the
content . . . of the testimony upon which to determine the propriety of the trial court’s ruling.”4
Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). In contrast, “when
testimony is rejected before it is delivered, an appellate court has no basis for adjudication unless the
record reflects a proper proffer.” Id. Without any proffer of the expected testimony, this Court will
not consider a challenge to a circuit court’s ruling excluding testimony. See, e.g., Klein, 11
Va. App. at 160, 396 S.E.2d at 869. The record here fails to contain a proffer as to what the son’s
4
“Generally, the admissibility of evidence ‘is within the broad discretion of the trial
court, and an [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of
discretion.’” Surles v. Mayer, 48 Va. App. 146, 177, 628 S.E.2d 563, 578 (2006) (quoting Blain
v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)) (alteration in original).
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testimony would have been and thus does not provide this Court a basis from which to determine
whether the circuit court properly excluded the testimony. Therefore, we do not consider this
assignment of error.
E. Award of Attorney’s Fees to the Wife
The husband argues that the circuit court erred by awarding attorney’s fees to the wife,
especially considering her alleged misconduct during the marriage. The wife contends that the
circuit court did not abuse its discretion in awarding her fees.
This Court reviews a circuit court’s award of attorney’s fees for an abuse of discretion.
Fadness v. Fadness, 52 Va. App. 833, 848, 667 S.E.2d 857, 865 (2008). “The key to determining a
‘proper award of [attorney’s] fees is reasonableness under all the circumstances.’” Milot v. Milot,
62 Va. App. 415, 426, 748 S.E.2d 655, 660 (2013) (alteration in original) (quoting Joynes v. Payne,
36 Va. App. 401, 429, 551 S.E.2d 10, 24 (2001)). “In light of the discretion allotted to the trial
court in determining the award of attorney’s fees, this Court will not disturb the trial court’s finding
when it properly considered the circumstances of the case.” Id. In this case, we cannot say that the
circuit court abused its discretion after considering the parties’ financial needs and resources, as
discussed supra in Part II.C. We also cannot say that there was no credible evidence to support its
decision to award the wife attorney’s fees. Consequently, the award remains undisturbed.
F. Attorney’s Fees and Costs on Appeal
The wife asks for an award of attorney’s fees and costs associated with this 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, 23 Va. App. at 695, 479 S.E.2d at 100. The husband’s appeal was not frivolous and
addressed “appropriate and substantial issues.” See Estate of Hackler v. Hackler, 44 Va. App. 51,
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75, 602 S.E.2d 426, 438 (2004). Nor did the husband “generate[] unnecessary delay or expense in
pursuit of [his] interests.” Id. Additionally, the wife fails to provide reasons requiring payment of
further fees or costs by the husband. Therefore, we deny the wife’s request for an award of fees and
costs in this appeal.
III. CONCLUSION
The circuit court was not plainly wrong in determining that the husband failed to prove
adultery by clear and convincing evidence. There is credible evidence to support the court’s
findings that condonation applied to any adultery occurring before the parties’ 2010 reconciliation
and that the husband failed to prove any further adultery leading to their final separation in 2011.
Additionally, the court did not abuse its discretion in fashioning the spousal support and equitable
distribution awards. We do not consider the husband’s challenge to the exclusion of his son’s
testimony because the record does not contain a proper proffer of that alleged testimony. Finally,
we cannot say that the circuit court abused its discretion in awarding the wife attorney’s fees.
Consequently, we affirm the decision of the circuit court.
Affirmed.
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