Franco Triolo v. Jean Marie White Triolo

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
FRANCO TRIOLO
MEMORANDUM OPINION *
v. Record No. 1590-00-1 PER CURIAM
DECEMBER 12, 2000
JEAN MARIE WHITE TRIOLO
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Thomas B. Hoover, Judge
(Vicki Beard, on briefs), for appellant.
(Kenneth B. Murov, on brief), for appellee.
Franco Triolo (husband) appeals the decision of the trial
court awarding attorney's fees and spousal support to Jean Marie
White Triolo (wife). On appeal, the husband contends that the
trial court erred (1) in awarding attorney's fees to the wife
after the commissioner had awarded attorney's fees to the husband,
and (2) in awarding spousal support to the wife. 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, we view the evidence and all reasonable
inferences in the light most favorable to the appellee as the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
party prevailing below. See McGuire v. McGuire, 10 Va. App.
248, 250, 391 S.E.2d 344, 346 (1990).
Procedural Background
The wife filed for divorce in January, 1995, on the ground of
constructive desertion. In September, 1996, the husband requested
that the case be referred to a commissioner in chancery. The
decree appointing the commissioner did not include a direction
that the commissioner determine spousal support. The commissioner
reported that the evidence was insufficient to support awarding
the wife a fault divorce and recommended that she be awarded a
divorce on the ground of one-year separation. Holding that the
wife was more responsible for prolonging the suit, the
commissioner recommended that the husband be awarded $2,000 in
attorney's fees. Both parties filed objections to the
commissioner's report. The trial court held hearings to rule on
the objections and to determine spousal support. The court upheld
the bulk of the commissioner's report, but awarded the wife $5,000
in attorney's fees based on disparity of the parties' incomes.
The court ordered the husband to pay $400 per month in spousal
support to the wife.
I.
The husband contends that the trial court erred in awarding
attorney's fees to the wife. He asserts that she was responsible
for prolonging the suit and for increasing the legal expenses.
The trial court found that both parties contributed to the
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prolongation of the proceedings and that the suit involved true
issues which required litigation. Based on the differences in the
incomes of the parties, the trial court awarded $5,000 in
attorney's fees to the wife. An award of attorney's fees is a
matter submitted to the trial court's sound discretion and is
reviewable on appeal only for an abuse of discretion. Graves v.
Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). We find
no abuse of discretion in the trial court's determination.
II.
The husband also contends that the trial court erred in
awarding spousal support to the wife. "When a [trial] court
awards spousal support based upon due consideration of the
factors enumerated in Code § 20-107.1, as shown by the evidence,
its determination 'will not be disturbed except for a clear
abuse of discretion.'" Poliquin v. Poliquin, 12 Va. App. 676,
679, 406 S.E.2d 401, 403 (1991).
The trial court considered all the factors required by Code
§ 20-107.1. Based on the length of the marriage and the
discrepancy in incomes, the court held that the wife was entitled
to permanent spousal support. We find no abuse of discretion in
that determination.
Accordingly, the judgment of the trial court is summarily
affirmed. This case is remanded to the trial court to consider
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whether an award of attorney's fees and costs for this appeal
should be made to the wife.
Affirmed and remanded.
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