Albert v. Dougherty v. Elizabeth C. Dougherty

• Court: Court of Appeals of Virginia
• Decided: August 29, 1995
• Docket: 0368954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, * Bray and Annunziata

ALBERT V. DOUGHERTY

v. Record No. 0368-95-4 MEMORANDUM OPINION** PER CURIAM ELIZABETH C. DOUGHERTY AUGUST 29, 1995

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge

(John M. DiJoseph; Sattler & DiJoseph, on brief), for appellant. No brief for appellee.

Albert V. Dougherty (husband) appeals the decision of the

circuit court awarding spousal support to Elizabeth C. Dougherty

(wife) and deciding other issues. Husband raises the following

issues on appeal: (1) whether the award of attorney's fees to

wife was appropriate; (2) whether the chancellor erred in

awarding wife a portion of husband's pension; (3) whether the

chancellor erred determining husband's income; and (4) whether

the award of spousal support was improper. Upon reviewing the

record and husband's opening brief, we conclude that this appeal

is without merit. Accordingly, we summarily affirm the

chancellor's decision. Rule 5A:27.

* Justice Koontz participated in the decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. I. Award of Attorney's Fees

An award of attorney's fees is a matter submitted to the

sound discretion of the chancellor 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). The chancellor considered the circumstances of the

litigation, including husband's refusal to participate in

discovery and his contest of the proposed fee award requiring

wife to retain the services of an expert witness, and the

relative positions of the parties and made an award of fees in

favor of wife appropriate to the case. Based on our review of

the record, we cannot say that the award of attorney's fees and

costs for an expert witness was unreasonable or an abuse of the

chancellor's discretion.

II. Pension The chancellor is vested with broad discretion in fashioning

an equitable distribution award. Unless it appears from the record that the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal.

2 Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368

(1987)(citation omitted).

The chancellor calculated the marital share of husband's

pension as eighty percent of the total, based upon thirty-five

total years of husband's pension accumulation and twenty-eight

years of marriage during husband's employment. The marital

share, thus calculated, satisfied the provisions of Code

§ 20-107.3(G)(1). The chancellor also awarded wife no more than

fifty percent of the marital share. Id. Therefore, as the

chancellor's award to wife of forty percent of husband's pension

satisfied Code § 20-107.3, we cannot say the chancellor abused

his discretion in making the award.

Nor did the chancellor err in failing to require a present

value calculation for husband's pension. "A present value

calculation is of direct use only where payment of the portion of

the monetary award attributable to the pension is to occur

immediately rather than over a period of time." Zipf v. Zipf, 8

Va. App. 387, 397, 382 S.E.2d 263, 269 (1989). The parties did

not intend to make an immediate monetary award in this case.

III. Determination of Income "The weight which should be given to evidence and whether

the testimony of a witness is credible are questions which the

fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App.

523, 528, 351 S.E.2d 598, 601 (1986). "[T]he judgment of the

trial court on questions of fact is entitled to great weight and

3 will not be disturbed unless it is plainly wrong or without

evidence to support it." Smith v. Board of Supervisors, 201 Va.

87, 91, 109 S.E.2d 501, 505 (1959). Husband asserted a

significant decline in income in the months prior to the final

hearing. Wife also introduced evidence of husband's income. We

cannot say the chancellor's factual determination that husband's

income in previous years more accurately reflected husband's

actual earnings was plainly wrong or without evidence to support

it. Accordingly, we affirm the chancellor's decision to compute

spousal support using $53,000 as husband's annual income. IV. Spousal Support 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 chancellor noted those factors, evident on the

record and appropriate to the determination under the statute,

upon which he based his award. We cannot say the chancellor

abused his discretion in awarding wife $200 a month in spousal

support.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.