Robert D. Swander v. Susan M. Swander

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
ROBERT D. SWANDER
MEMORANDUM OPINION *
v. Record No. 1664-00-2 PER CURIAM
JULY 17, 2001
SUSAN M. SWANDER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
(Thomas F. Coates, III; Coates & Davenport,
on briefs), for appellant.
(John N. Clifford; Clifford & Duke, P.C., on
brief), for appellee.
Robert D. Swander (husband) appeals the decision of the
circuit court awarding Susan M. Swander (wife) monthly spousal
support. On appeal, husband contends that the trial court erred
in awarding wife spousal support of $650 per month when she had
stated in a deposition that she was seeking support of only $500
per month. Husband asks that we vacate the trial court's order
and remand with instructions to award support in an amount not to
exceed $500. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
PROCEDURAL BACKGROUND
After a twenty-four-year marriage, husband and wife
separated in October 1996 and wife filed for divorce in February
1999. They executed a property settlement agreement on
September 24, 1999, reserving the issue of spousal support for
adjudication by the court. On October 28, 1999, the trial court
heard arguments on spousal support. The parties submitted their
October 18, 1999 depositions into evidence. In her deposition,
wife suggested that she would settle for $500 per month. The
trial court issued a letter opinion on December 6, 1999, in
which it awarded wife $650 per month in spousal support.
Husband filed a motion for reconsideration on February 14, 2000.
The trial court rescinded its letter opinion on February 18,
2000 and accepted memoranda from the parties. On April 12,
2000, the trial court again awarded wife spousal support of $650
per month.
ANALYSIS
"Whether and how much spousal support will be awarded is a
matter of discretion for the trial court." Barker v. Barker, 27
Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). "In fixing the
amount of the spousal support award, . . . the court's ruling
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will not be disturbed on appeal unless there has been a clear
abuse of discretion. We will reverse the trial court only when
its decision is plainly wrong or without evidence to support
it." Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635,
644 (1992) (citations omitted).
Husband argues that because wife stated in her deposition
that she sought only $500 in monthly support, the trial court
erred in awarding her an amount greater than that. Husband
relies upon the Supreme Court's prohibition against a
plaintiff's case rising higher than her testimony. Massie v.
Firmstone, 134 Va. 450, 462, 114 S.E. 652, 655-56 (1922).
However,
a litigant with a meritorious claim or
defense will not be cast out of court
because of some single, isolated statement
which, when taken out of context and pointed
to in the cold, printed record on appeal,
appears to be conclusive against him.
This qualification to the rule requires
that a litigant's testimony be read as a
whole. A damaging statement made in one
part of his testimony must be considered in
the light of an explanation of such
statement made in a later part of his
testimony.
VEPCO v. Mabin, 203 Va. 490, 493-94, 125 S.E.2d 145, 148 (1962).
Viewed in the context in which it was made, wife's
statement merely indicated that she did not expect to receive
more than $500 in monthly support. Her testimony also revealed
that her monthly shortfall exceeded $1,200 and that $500 was
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"not the amount that [she] need[ed]." Wife's remarks during her
deposition did not clearly suggest that she only sought $500 in
monthly support.
Furthermore, the pleadings in this case do not contain an
ad damnum clause. As explained above, wife's equivocal
deposition testimony does not represent the amount of support
she sought. Accordingly, we summarily affirm the decision of the
trial court. See Rule 5A:27.
Affirmed.
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