Glenda Marlene Kennedy Fisher v. Walter Carl Fisher

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GLENDA MARLENE KENNEDY FISHER
MEMORANDUM OPINION *
v. Record No. 0687-99-2 PER CURIAM
FEBRUARY 8, 2000
WALTER CARL FISHER
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
(Owaiian M. Jones; Law Offices of Owaiian M.
Jones, on brief), for appellant. Appellant
submitting on brief.
No brief for appellee.
Glenda Marlene Kennedy Fisher appeals the final decree of
divorce in which the circuit court granted her husband, Walter
Carl Fisher, a divorce, distributed the parties' marital property,
and denied wife spousal support and attorney's fees. Wife alleges
that the trial court erred by (1) failing to order husband to pay
her spousal support; (2) failing to follow Code § 20-107.3 when
equitably distributing the marital property; (3) denying wife's
request for reimbursement of medical insurance premiums paid for
husband; (4) denying wife's request for reimbursement for payment
of husband's tax liability; and (5) denying wife's request for
attorney's fees. Upon reviewing the record and opening brief, we
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conclude that this appeal is without merit. Accordingly, we
affirm the judgment of the trial court.
Under familiar principles we view [the]
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below. Where, as here, the court
hears the evidence ore tenus, its finding is
entitled to great weight and will not be
disturbed on appeal unless plainly wrong or
without evidence to support it.
Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15,
20, 348 S.E.2d 13, 16 (1986).
Spousal Support
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
court and will not be disturbed on appeal unless it is clear
that some injustice has been done." Dukelow v. Dukelow, 2 Va.
App. 21, 27, 341 S.E.2d 208, 211 (1986).
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the . . . 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
(1986). The trial court is not "required to quantify or
elaborate exactly what weight or consideration it has given to
each of the statutory factors." Woolley v. Woolley, 3 Va. App.
337, 345, 349 S.E.2d 422, 426 (1986). However, its findings
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"must have some foundation based on the evidence presented."
Id.The parties were married on December 31, 1996 and separated
no later than September 3, 1997. Wife testified at trial that
she worked twenty-four hours a week, earning $11.65 an hour.
She admitted that her testimony differed from her response to
husband's interrogatories, in which she indicated that she
received $666 in monthly income for the last two and one-half
years. Wife's W-2 tax form for 1996 showed her income was
$21,940. According to the written statement of facts, at trial
wife testified that she "cut back the number of her working
hours per week since the issuance of her W-2." The record
contains no explanation for the wife's reduced work hours. The
evidence established that husband's sole income was
approximately $15,000 in retirement benefits from the United
States Railroad Retirement Board.
The trial court's order indicated that it considered the
statutory factors and found no evidence warranting an award of
spousal support to wife. It reserved wife's right to seek
spousal support in the future. Because the trial court
considered the statutory factors and its decision has
evidentiary support, wife has not demonstrated an abuse of
discretion in its denial of spousal support.
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Equitable Distribution
Wife contends that the trial court erred by failing to grant
her a monetary award to cover expenses she allegedly made on
husband's behalf during the marriage. Whether a party is entitled
to a monetary award is a matter left to the sound discretion of
the trial court. See Dietz v. Dietz, 17 Va. App. 203, 216, 436
S.E.2d 463, 471 (1993). It was uncontested that wife paid $4,000
to cover husband's income tax liability. However, both parties
testified that the source of those funds was $10,000 husband
deposited into wife's account prior to their marriage. The
written statement of facts indicates that wife so testified during
the October 7, 1998 hearing. Wife also asserted that she spent
$195 a month for two years to cover husband's health insurance
premiums. Evidence introduced by husband indicated that wife
notified him that the policy ended October 18, 1997. Therefore,
the record does not support wife's assertion that she expended
$8,680 on husband's behalf. We find no abuse of discretion in the
trial court's decision not to make a monetary award to wife as
reimbursement for these claimed expenses.
Wife also contends that the trial court erred in its
distribution of the marital property. We agree that the trial
court erred in classifying the parties' property, but we find
that error to be harmless under the circumstances of this case.
See generally Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991) (en banc).
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The trial court classified as marital property the Ford
truck, the camcorder, the pine bed and mattress, the .38 caliber
revolver, and the shotgun. These items were not acquired during
the marriage. Therefore, the trial court erred in classifying
them as marital rather than separate property. Because these
items were separate property, the trial court also had no
authority to order their transfer from one party to another. See
Code § 20-107.3(C). However, under the circumstances of this
case, we find these errors to be harmless. Wife purchased the
bedroom set and camcorder prior to the marriage. These items were
awarded to her. While wife purchased the guns prior to the
marriage, evidence indicated that she gave these items to husband
as gifts prior to the marriage. Therefore, credible evidence
supports the conclusion that they were husband's separate property
prior to the marriage. As the trial court's decision awarded each
item of separate property to its proper owner, we find no
reversible error.
The evidence established that husband's separate funds were
used to purchase the truck in wife's name prior to the marriage.
Wife did not allege that husband intended the truck to be a gift
to her. At the time of trial, the truck was titled in husband's
name on the records of the Department of Motor Vehicles. Wife
presented personal property tax documents bearing her name.
Although title alone does not determine the classification of
property under the Virginia equitable distribution statute, see
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Code § 20-107.3(A)(3)(f) and (B), the truck was purchased prior to
the marriage with funds traceable to husband. Therefore, the
truck was husband's separate property. Because the trial court
awarded husband the truck as his separate property, we find any
error in classification to be harmless.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). Wife's income, at a minimum, was comparable to husband's.
There was no indication that husband was responsible for extending
the litigation in any way. We cannot say that the trial court
abused his discretion in refusing to award wife attorney's fees.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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