Stephen M. Smith v. Judy Chaffin Smith

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
STEPHEN M. SMITH
MEMORANDUM OPINION *
v. Record No. 2801-95-3 PER CURIAM
JULY 16, 1996
JUDY CHAFFIN SMITH
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge
(Debra Fitzgerald-O'Connell; Gilmer, Sadler,
Ingram, Sutherland & Hutton, on brief), for
appellant.
(Edwin C. Stone; Clifford L. Harrison; Stone,
Harrison, Turk & Showalter, on brief), for
appellee.
Stephen M. Smith (husband) appeals the decision of the
circuit court awarding spousal support to Judy Chaffin Smith
(wife) and deciding other issues. Husband raises the following
issues on appeal: (1) whether the trial court erred in ordering
husband to pay $5,000 as part of the equitable distribution of
the parties' marital personal property; (2) whether the trial
court erred in awarding wife the maximum share of all real and
intangible personal property; (3) whether the trial court erred
in awarding wife spousal support; and (4) whether the trial court
erred in awarding wife $1,000 in attorney's fees.
Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
summarily affirm the decision of the trial court. Rule 5A:27.
Equitable Distribution Monetary Award
The evidence was heard by the commissioner in chancery,
whose report was accepted by the trial court.
The commissioner's report is deemed to be
prima facie correct. The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . . to
see, hear and evaluate the witness at first
hand." Because of the presumption of
correctness, the trial judge ordinarily must
sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted). "This rule applies with particular force to
a commissioner's findings of fact based upon evidence taken in
his presence, but is not applicable to pure conclusions of law
contained in the report." Hill v. Hill, 227 Va. 569, 577, 318
S.E.2d 292, 296 (1984) (citation omitted). This Court must
affirm the trial court's decision unless it is plainly wrong or
without evidence to support it. McLaughlin v. McLaughlin, 2 Va.
App. 463, 466-67, 346 S.E.2d 535, 536 (1986).
The commissioner considered the statutory factors before
recommending the equitable distribution scheme ultimately
accepted by the trial court. Code § 20-107.3(E). Both parties
contributed to the acquisition and maintenance of the marital
home and other marital assets, although husband provided most of
the financial contributions. The marital assets of husband's
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pension, 401K, and thrift plans were acquired through husband's
employment. Wife worked part-time throughout most of the
marriage, but she did not have substantial earnings or accrue
extensive retirement benefits. Husband retained the marital home
and most of the furnishings, although wife removed some
furnishings when she left the home.
Husband retained two vehicles worth approximately $12,000,
plus furnishings worth $4,000. While husband asserts that the
value of a piano and the furniture in his daughters' rooms should
not be assessed against him, there was evidence that these items
were marital assets which remained in his possession in the
marital home. Wife retained a vehicle and furnishings worth
approximately $5,000. Therefore, as there was evidence to
support the commissioner's recommended monetary award to wife of
$5,000, we cannot say the trial court's decision to accept that
recommendation was plainly wrong or unsupported by the evidence.
Award of Fifty Percent Interest
The commissioner recommended that wife receive fifty percent
of the marital share of husband's pension and retirement
accounts. This award conformed with the statutory requirements.
See Code § 20-107.3(G). The statute contains no comparable
limitation on an award of other marital assets. While
"Virginia's statutory scheme of equitable distribution does not
have a presumption favoring an equal distribution of assets,"
Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d 572, 577
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(1992), we cannot say the award of a fifty percent interest in
other marital assets, including the marital home, was an abuse of
discretion or unsupported by the evidence.
Spousal Support
Code § 20-107.1 provides that, upon entry of a decree of
divorce, "the court may make such further decree as it shall deem
expedient concerning the maintenance and support of the spouses."
While the statute provides that "no permanent maintenance and
support shall be awarded from a spouse if there exists in such
spouse's favor a ground of divorce under the provisions of
subdivision (1) of § 20-91," the court may nonetheless award
support to a spouse guilty of adultery "if the court determines
from clear and convincing evidence, that a denial of support and
maintenance would constitute a manifest injustice . . . ."
Husband was awarded a divorce on the grounds of wife's
desertion. His assertion of adultery as a ground was found to be
unsupported by the evidence. Therefore, Code § 20-107.1 did not
preclude an award of support to wife. The trial court found that
wife was entitled to $200 per month in spousal support. In
awarding spousal support, the trial court noted that it had
reviewed the statutory factors, "particularly the earning
capacities of the parties, the duration of the marriage, and the
contributions made by the parties to the well-being of the family
during the marriage."
Both parties contributed to the marriage, with wife making
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the majority of the non-financial contributions and husband
making the majority of the financial contributions. Husband
earned $4,036 per month, compared to wife's monthly income of
$1,624. Husband retained the marital home. The parties had a
twenty-six year marriage which they each described as good until
serious problems erupted in 1992.
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
(1986). The trial court considered the statutory factors, and we
cannot say that the court abused its discretion in making its
determination.
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. 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.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
Husband had substantially greater income. The commissioner
found that the evidence did not support husband's allegations of
adultery. Based on the number of issues involved and the
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respective abilities of the parties to pay, we cannot say that
the award was unreasonable or that the trial court abused its
discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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