Carol Bogossian Berryhill v. Jeffrey Scott Berryhill ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Beales
Argued by teleconference
CAROL BOGOSSIAN BERRYHILL
MEMORANDUM OPINION* BY
v. Record No. 2821-06-4 JUDGE LARRY G. ELDER
JULY 31, 2007
JEFFREY SCOTT BERRYHILL
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Lon E. Farris, Judge
Gregory M. Van Doren for appellant.
Bruce A. Gross (Joseph C. Swetnam; Bruce A. Gross & Associates,
PC, on brief), for appellee.
Carol Bogossian Berryhill (wife) appeals from a spousal support award entered as part of
the final decree dissolving her marriage to Jeffrey Scott Berryhill (husband). On appeal, wife
contends the trial court erroneously failed to make any written findings to explain its award of
spousal support and the fact that the award was for a defined duration. She also contends the
evidence failed to support the trial court’s decision to impute income to her and to award her
support in a particular amount and for a defined duration. Based on the trial court’s failure to
make written findings to support its spousal support award as required by Code § 20-107.1(F),
we reverse the award of spousal support and remand for additional proceedings consistent with
this opinion.
Code § 20-107.1(F), as amended in 1998, provides as follows:
In contested cases in the circuit courts, any order granting,
reserving or denying a request for spousal support shall be
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accompanied by written findings and conclusions of the court
identifying the factors in subsection E which support the court’s
order. If the court awards periodic support for a defined duration,
such findings shall identify the basis for the nature, amount and
duration of the award and, if appropriate, a specification of the
events and circumstances reasonably contemplated by the court
which support the award.
See also 1998 Va. Acts, ch. 604; Breummer v. Breummer, 46 Va. App. 205, 207, 616 S.E.2d
740, 740-41 (2005) (recognizing new statutory requirement). Although a trial court is not
“required to quantify or elaborate exactly what weight or consideration it has given to each of the
statutory factors” in Code § 20-107.1(E), Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d
422, 426 (1986), it is required, under Code § 20-107.1(F), to identify those factors listed in
subsection (E) that support the court’s award of spousal support in the amount and for the
duration awarded.
Here, the trial court’s written explanation in the final decree for its award of spousal
support was limited to the following: “Having considered the factors as listed in §20-107.1 of
the 1950 Code of Virginia, as amended, the Court awards spousal support and maintenance to
Wife in the amount of $2,250 per month, beginning October 1, 2006, for a period of eight years.”
We assume without deciding that we may consider the trial court’s statements from the
bench, although they were not incorporated into the trial court’s final decree. Nevertheless,
those statements, although more detailed as to the court’s decision to impute income to wife,
were similarly deficient as to the other factors relevant to its award of spousal support for a
defined duration:
As to imputing income, the Court imputes income to the
wife in the amount of $15,000 per year, taking into account
Dr. Bird’s testimony that employment is available at a temporary
placement agency and taking into account the physical disabilities
of the [parties’] daughter which would cause the wife to need to
work no more than part-time.
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Spousal support and maintenance. Having considered the
factors listed in Section 20-107.1, the Court awards spousal
support and maintenance to the wife in the amount of $2,250 per
month for a period of eight years beginning October 1, 2006.
The trial court thus failed adequately to identify (1) “the factors in subsection E” that
supported its order and (2) “the basis for the nature, amount and duration of the [defined
duration] award.” See Code § 20-107.1(F). Further, wife endorsed the final order “Seen and
objected to” because, inter alia, “The court made no findings as required by Section 20-107.1(F).
Code identifying the factors in subsection E. 20-107.1 which support the Court’s order and
identify the events and circumstances reasonably contemplated by the Court which support the
award of spousal support for a defined duration.” This objection, although inartfully worded,
was sufficient to preserve wife’s assignment of error for appeal. See, e.g., Torian v. Torian, 38
Va. App. 167, 185-86, 562 S.E.2d 355, 365 (2002) (holding party must bring to attention of trial
court contention that court failed to satisfy requirements of Code § 20-107.1(F) to give it an
opportunity to correct claimed error).
Given the absence of the written findings and conclusions required by Code
§ 20-107.1(F) to support the award, we reverse the award and remand to the trial court for further
proceedings consistent with this opinion. We do not consider wife’s claim that the record
contains insufficient evidence to support the trial court’s decision to impute income to her or to
support the amount and duration of the award. Because these are factors upon which Code
§ 20-107.1(F) required the trial court to make specific findings, both the goals of the statute and
the interests of judicial economy will be better served by our reviewing these issues after the trial
court has made all required findings rather than in a piecemeal fashion.
Reversed and remanded.
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