Adrian L. McGowan v. Deborah P. McGowan ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ADRIAN L. McGOWAN
MEMORANDUM OPINION *
v. Record No. 0598-96-1 PER CURIAM
OCTOBER 8, 1996
DEBORAH P. McGOWAN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
(Allen J. Gordon; Erik P. Gordon, on brief),
for appellant.
No brief for appellee.
Adrian L. McGowan (husband) appeals the decision of the
circuit court awarding $400 in monthly spousal support to Deborah
P. McGowan (wife). Husband contends that, in light of the
evidence of wife's ability to work, the trial court erred in
accepting the commissioner's recommended award. Upon reviewing
the record and opening brief, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1986).
Husband contends that the parties' age, health, past
conduct, and earning capacities, among other factors, failed to
support the commissioner's recommendation. See Code § 20-107.1.
Husband is more than twenty years older than wife and is nearing
retirement. Husband's monthly net take-home pay was $1,750.
While wife worked prior to the parties' marriage in 1985, and
completed a paralegal course during the marriage, wife was
unemployed at the time of the commissioner's hearing with no
income and $2,708.20 in claimed expenses.
While husband admitted that wife did not work during the
marriage by agreement of the parties, husband contends that there
was no evidence that wife was unable to work. Witnesses called
by wife, however, testified that wife was unable to work due to
both mental illness and physical injuries resulting from a 1994
automobile accident. Janet Schiff, a licensed clinical social
worker, had seen wife professionally since 1985 and testified
that wife suffered from "a severe chronic mental illness"
resulting in "a breakdown in reality testing." Schiff opined
that the illness was not easily reparable and that wife would not
be able to work. Wife was hospitalized at Tidewater Psychiatric
Institute in 1994. Her mother described her behavior at that
time as "psychotic." Wife testified that she suffered from
hyperacusis and head pain and was on a mild tranquilizer, but
indicated she was unemployable because of a neck injury following
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a 1994 car accident.
The commissioner's report indicated that he considered the
parties' respective income as well as "the relative degrees of
fault, the length of the marriage, the relative ages of the
parties and all other factors set forth in . . . § 20-107.1."
Credible evidence indicated that wife was not currently able to
obtain employment, and that she had not successfully held outside
employment in many years. We find no abuse of discretion in the
trial court's decision to award wife $400 in monthly spousal
support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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