Edward R. Cushen v. Janice J. Cushen ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
EDWARD R. CUSHEN
MEMORANDUM OPINION * BY
v. Record No. 1030-97-4 JUDGE NELSON T. OVERTON
AUGUST 18, 1998
JANICE J. CUSHEN
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
Frederick S. Vondy (Adrian & Vondy, P.L.C.,
on brief), for appellant.
Peter W. Buchbauer (James J. McGuire;
Buchbauer & McGuire, P.C., on brief), for
appellee.
Edward R. Cushen (husband) appeals from a decree of divorce
a vinculo matrimonii granted to him and Janice J. Cushen (wife)
on March 26, 1997. He asserts two errors on appeal: (1) the
trial court should have found wife deserted him and granted him
the divorce on that basis and (2) the trial court should have
refused to award wife spousal support. Wife contests these
issues and requests the court award her attorney's fees and costs
incurred for this appeal. Because we find no error by the trial
court, we affirm its decree and grant wife her attorney's fees
and costs.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
value, no recitation of the facts is necessary.
Husband's first contention is the trial court should have
granted the divorce based on wife's desertion, pursuant to Code
§ 20-95, instead of living separate and apart for more than a
year, pursuant to Code § 20-91(9)(a). The choice of divorce
grounds is submitted to the sound discretion of the trial court
and will be affirmed absent an abuse of that discretion. See
Konefal v. Konefal, 18 Va. App. 612, 613-14, 446 S.E.2d 153, 153
(1994). At trial, the parties proved they lived separate and
apart, without any cohabitation and without interruption for a
period of more than one year. Assuming, arguendo, husband also
proved desertion, the fact is irrelevant. "'Where dual or
multiple grounds for divorce exist, the trial judge can use . . .
sound discretion to select the grounds upon which . . . to grant
the divorce.'" Sargent v. Sargent, 20 Va. App. 694, 707, 460
S.E.2d 596, 602 (1995) (quoting Lassen v. Lassen, 8 Va. App. 502,
505, 383 S.E.2d 471, 473 (1989)). Because there is evidence to
support the court's chosen ground for divorce, we shall not
disturb it on appeal.
Husband next contends the trial court should not have
awarded wife spousal support. He provides two reasons for this
contention. First, he states evidence of wife's desertion should
have precluded an award of spousal support under Code § 20-107.1.
This argument has no merit. The trial court refused to find
wife deserted husband. To turn around and deny or reduce spousal
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support on the basis of a finding it implicitly rejected would
have been error. The court was entitled to proceed to the
statutory factors of Code § 20-107.1 to determine the amount of
support.
Husband next asserts the trial court incorrectly weighed
these factors. We will not, as husband invites, reweigh each
statutory factor in the light most favorable to husband. When
the record discloses that the trial court considered all of the
statutory factors, the court's ruling will not be disturbed on
appeal unless there has been a clear abuse of discretion. See
Calamos v. Calamos, 4 Va. App. 96, 100, 354 S.E.2d 102, 105
(1987). The trial court's decree clearly indicates it considered
all the statutory factors, even going so far as to distinguish
which factors favored which party, something it was not required
to do. See id. Because the evidence supports the trial court's
conclusions regarding those factors, they shall not be disturbed.
Finally, husband argues the trial court should have imputed
income to wife because she was voluntarily unemployed. See
Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675,
679 (1990). Husband did not, however, introduce evidence that
imputation of income was warranted. The record reveals wife had
not worked as a full time nurse since 1991 and has had only
temporary or volunteer positions since then. Husband did not
present evidence of job availability in her field, the effect of
her long departure from the work force on her ability to obtain a
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job or her potential earnings. Further, the custody arraignment
to which husband agreed places the children with wife during week
days. Husband did not introduce evidence that nursing positions
were available which allowed her the time to both work and
fulfill her responsibilities as the primary custodian of their
children. Because the record is practically devoid of the
information necessary to impute income to wife, we affirm the
trial court's refusal to do so. See Sargent, 20 Va. App. at
703-04, 460 S.E.2d at 600-01.
The final issue to be considered is wife's costs of appeal.
She asserts the appeal was undertaken for vexatious reasons, not
from a belief the questions presented merited appellate
attention. She claims the issues are easily determined under
existing law and no argument has been made for a change in that
law. She asks that this Court reimburse her, and penalize
husband, for the time and money she has wasted addressing
husband's aggravating appellate attack.
"The key to a proper award of counsel fees is reasonableness
under all the circumstances." Lightburn v. Lightburn, 22 Va.
App. 612, 621, 472 S.E.2d 281, 285 (1996) (citing McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)). The
legal issues in this appeal are easily disposed of by reference
to existing law. Sargent v. Sargent, cited above, alone would
have been enough to inform husband his appeal lacked merit. Yet
husband continued to press his case upon this Court. We find
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wife should be compensated for the expenses incurred refuting
husband's unjustified appeal. See, e.g., O'Loughlin v.
O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996);
Gottlieb v. Gottlieb, 19 Va. App. 77, 95-96, 448 S.E.2d 666, 677
(1994).
Because the record entirely supports the lower court's
determinations of divorce grounds and spousal support, we affirm.
"Where the . . . judge finds that a fee award is justified,
evidence of time expended and services rendered is a proper basis
upon which to fix an award." Westbrook v. Westbrook, 5 Va. App.
446, 458, 364 S.E.2d 523, 530 (1988). We, therefore, remand the
case to the circuit court for a determination of wife's costs and
attorney's fees incurred as a result of this appeal and entry of
an award in her favor for that amount. See O'Loughlin, 23 Va.
App. at 694-95, 479 S.E.2d at 99-100.
Affirmed and remanded.
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