COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BARBARA FAYE COX
v. Record No. 2576-98-1
WILLIAM COX MEMORANDUM OPINION * AND PER CURIAM JUNE 8, 1999 WILLIAM COX
v. Record No. 2589-98-1
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge
(Mark S. Smith; Christie & Kantor, P.L.C., on briefs), for Barbara Faye Cox.
(Steven C. Frucci; Brydges, Mahan, O’Brien & Frucci, P.C., on briefs), for William Cox.
William Cox (husband) appeals the decision of the circuit
court awarding Barbara Faye Cox (wife) spousal support and
attorney’s fees and distributing the parties’ marital assets.
Husband contends that the trial court erred by (1) failing to
consider wife’s ability to work, her income from his retirement
benefits, and his actual income when setting the amount of spousal
support; (2) awarding wife attorney’s fees and costs; and (3)
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. valuing the marital oil business. Wife also appeals the decision
of the circuit court, contending that the court erred by failing
to award her greater monthly spousal support than recommended by
the commissioner in chancery. Upon reviewing the record and
briefs of the parties, we conclude that these appeals are without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Standard of Review
The evidence was heard by the commissioner in chancery, whose
report was sustained by the trial court.
[T]he 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).
Spousal Support
Both parties contend that the trial court erred when it
denied their exceptions to the commissioner’s recommendation that
wife receive $1,000 in monthly spousal support.
In awarding spousal support, the chancellor must consider the relative needs
- 2 - 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). Husband argues that the trial court failed to consider
wife’s ability to work. However, husband presented no evidence of
any employment opportunities for which wife was qualified but
failed to apply. In fact, husband testified that wife could not
take oil orders properly when she worked for the parties’ fuel oil
business shortly before the final separation. Husband also
described several incidents where wife was hospitalized due to her
bi-polar disease, and admitted that from October to January each
year she went through a manic phase. While husband opined that
wife could work in cosmetology, computers, or telephone
solicitation, wife testified that she was not licensed for
cosmetology and had not done secretarial or computer work since
1986. She also testified that she was feeling better, but was
unsure if she could handle stress caused by working, although she
admitted that her doctor asked her if she was ready to find work.
Wife qualified for Social Security disability due to her illness,
for which she received $566 monthly. Substantial evidence in the
record supports wife’s contention that, at the time of the
- 3 - hearing, she was not able to work. Husband presented nothing
beyond speculation to support his claims to the contrary.
Husband also challenged wife’s contention that husband
received approximately $1,000 in unreported income from AAA Fuel
Oil Business. Wife testified that husband withdrew that amount,
based upon her knowledge of husband’s previous practice, an
assertion denied by husband. Such additional income was reported
by the commissioner and implicitly considered by the commissioner
and the court in a determination of spousal support payable by
husband to wife. Notwithstanding husband’s denial of the alleged
unreported income, wife’s testimony, together with her familiarity
with husband’s financial affairs, provides sufficient support in
the record for both consideration of the monies and related award
of spousal support.
Husband also contends that the trial court failed to include
in wife’s monthly income her share of husband’s monthly retirement
benefit. The commissioner’s report indicated that he “considered
all the statutory factors and the circumstances of this case,
including the monetary award herein recommended” when recommending
the spousal support award. As set out in the report, the
calculations of the recommended monetary award followed almost
immediately after the commissioner’s determination that wife’s
8.75% share of husband’s retirement “will produce gross income to
the wife of approximately $153.00 per month.” Husband has not
- 4 - demonstrated that the trial court failed to consider this portion
of the commissioner’s report when accepting the recommended
spousal support award.
In her appeal, wife argues that the evidence demonstrated
that her need for spousal support exceeded the amount awarded.
She noted in particular that the loss of CHAMPUS coverage upon
divorce left her with monthly uninsured medical expenses,
including $500 in monthly prescription costs.
The record demonstrates that the trial court considered the
evidence, the statutory factors, and the parties’ exceptions to
the commissioner’s report. We find no error in the trial court’s
decision to accept the commissioner’s recommendation to award wife
$1,000 in monthly spousal support.
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 was unemployed, with substantially less monthly
income than husband, and with serious health concerns. Husband
continued to have the greater earning and employment capacity.
Based on the respective abilities of the parties to pay, we cannot
- 5 - say that the award was unreasonable or that the trial judge abused
his discretion in making the award.
Valuation of Oil Business
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BARBARA FAYE COX
v. Record No. 2576-98-1
WILLIAM COX MEMORANDUM OPINION * AND PER CURIAM JUNE 8, 1999 WILLIAM COX
v. Record No. 2589-98-1
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge
(Mark S. Smith; Christie & Kantor, P.L.C., on briefs), for Barbara Faye Cox.
(Steven C. Frucci; Brydges, Mahan, O’Brien & Frucci, P.C., on briefs), for William Cox.
William Cox (husband) appeals the decision of the circuit
court awarding Barbara Faye Cox (wife) spousal support and
attorney’s fees and distributing the parties’ marital assets.
Husband contends that the trial court erred by (1) failing to
consider wife’s ability to work, her income from his retirement
benefits, and his actual income when setting the amount of spousal
support; (2) awarding wife attorney’s fees and costs; and (3)
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. valuing the marital oil business. Wife also appeals the decision
of the circuit court, contending that the court erred by failing
to award her greater monthly spousal support than recommended by
the commissioner in chancery. Upon reviewing the record and
briefs of the parties, we conclude that these appeals are without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Standard of Review
The evidence was heard by the commissioner in chancery, whose
report was sustained by the trial court.
[T]he 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).
Spousal Support
Both parties contend that the trial court erred when it
denied their exceptions to the commissioner’s recommendation that
wife receive $1,000 in monthly spousal support.
In awarding spousal support, the chancellor must consider the relative needs
- 2 - 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). Husband argues that the trial court failed to consider
wife’s ability to work. However, husband presented no evidence of
any employment opportunities for which wife was qualified but
failed to apply. In fact, husband testified that wife could not
take oil orders properly when she worked for the parties’ fuel oil
business shortly before the final separation. Husband also
described several incidents where wife was hospitalized due to her
bi-polar disease, and admitted that from October to January each
year she went through a manic phase. While husband opined that
wife could work in cosmetology, computers, or telephone
solicitation, wife testified that she was not licensed for
cosmetology and had not done secretarial or computer work since
1986. She also testified that she was feeling better, but was
unsure if she could handle stress caused by working, although she
admitted that her doctor asked her if she was ready to find work.
Wife qualified for Social Security disability due to her illness,
for which she received $566 monthly. Substantial evidence in the
record supports wife’s contention that, at the time of the
- 3 - hearing, she was not able to work. Husband presented nothing
beyond speculation to support his claims to the contrary.
Husband also challenged wife’s contention that husband
received approximately $1,000 in unreported income from AAA Fuel
Oil Business. Wife testified that husband withdrew that amount,
based upon her knowledge of husband’s previous practice, an
assertion denied by husband. Such additional income was reported
by the commissioner and implicitly considered by the commissioner
and the court in a determination of spousal support payable by
husband to wife. Notwithstanding husband’s denial of the alleged
unreported income, wife’s testimony, together with her familiarity
with husband’s financial affairs, provides sufficient support in
the record for both consideration of the monies and related award
of spousal support.
Husband also contends that the trial court failed to include
in wife’s monthly income her share of husband’s monthly retirement
benefit. The commissioner’s report indicated that he “considered
all the statutory factors and the circumstances of this case,
including the monetary award herein recommended” when recommending
the spousal support award. As set out in the report, the
calculations of the recommended monetary award followed almost
immediately after the commissioner’s determination that wife’s
8.75% share of husband’s retirement “will produce gross income to
the wife of approximately $153.00 per month.” Husband has not
- 4 - demonstrated that the trial court failed to consider this portion
of the commissioner’s report when accepting the recommended
spousal support award.
In her appeal, wife argues that the evidence demonstrated
that her need for spousal support exceeded the amount awarded.
She noted in particular that the loss of CHAMPUS coverage upon
divorce left her with monthly uninsured medical expenses,
including $500 in monthly prescription costs.
The record demonstrates that the trial court considered the
evidence, the statutory factors, and the parties’ exceptions to
the commissioner’s report. We find no error in the trial court’s
decision to accept the commissioner’s recommendation to award wife
$1,000 in monthly spousal support.
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 was unemployed, with substantially less monthly
income than husband, and with serious health concerns. Husband
continued to have the greater earning and employment capacity.
Based on the respective abilities of the parties to pay, we cannot
- 5 - say that the award was unreasonable or that the trial judge abused
his discretion in making the award.
Valuation of Oil Business
Finally, husband contends that the trial court erred by
accepting the value placed on the marital oil business by wife’s
expert. Husband valued the business at $10,000. Wife’s expert
valued the business at $52,000. The expert testified at the
commissioner’s hearing, subject to husband’s cross-examination.
In his testimony, the expert noted that he discounted the gross
value he initially reached by forty percent, and also used a
more conservative thirty percent profit margin. The expert also
noted that he did not include any value for equipment, as the
oil business operated with a single, older truck.
“It is well established that the trier of fact ascertains a
witness’ credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the
witness’ testimony.” Street v. Street, 25 Va. App. 380, 387,
488 S.E.2d 665, 668 (1997). The commissioner was entitled to
accept the testimony of wife’s expert as to the value of the
ongoing oil business. Because the value assigned to the
business was supported by credible evidence, we find no error.
It was uncontested that the oil business was marital
property and that both husband and wife helped start the
business. While Virginia law has no presumption favoring an
- 6 - equal division of marital property, we cannot say that the trial
court abused its discretion by awarding each party one-half the
value of the oil business. See Papuchis v. Papuchis, 2 Va. App.
130, 132, 341 S.E.2d 829, 830-31 (1986).
Wife’s motions for attorney’s fees and costs incurred on
these appeals are denied.
Accordingly, the decision of the circuit court is summarily
affirmed.
- 7 -