COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
BRIAN GAY MEMORANDUM OPINION* v. Record No. 1539-03-1 PER CURIAM JANUARY 20, 2004 LAURA ANN GAY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge
(Brian Gay; The B & G Law Group, P.C.; Gay, Cipriano & Arrington, P.C., on briefs), for appellant.
(Jeffrey D. Tarkington; Sheera R. Herrell; Hofheimer/Ferrebee, P.C., on brief), for appellee.
Brian Gay (husband) appeals from the trial court’s final decree of divorce. On appeal,
husband contends the trial court erred in awarding spousal support to Laura A. Gay (wife) and in
ordering husband to pay $5,000 of wife’s attorney’s fees. 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. Rule 5A:27.1
Background
“On appeal, we construe the evidence in the light most favorable to wife, the prevailing
party below, granting to her evidence all reasonable inferences fairly deducible therefrom.”
Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing McGuire v.
McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Husband has moved for leave to file the appeal bond required by Code § 8.01-676.1. We grant that motion. We deny wife’s motion to dismiss the appeal. The trial court referred this matter to a commissioner in chancery. Following an evidentiary
hearing, the commissioner issued a report. In the report, the commissioner found that wife, who is
certified as a dental assistant, is underemployed. The commissioner imputed income to wife at the
rate of $9 per hour, or $1,560 per month. The commissioner also found that husband, who holds
J.D. and M.B.A. degrees, receives $5,000 per month from his law practice. The commissioner
found that husband should pay wife $500 per month in spousal support and should pay $5,000 of
her attorney’s fees.
Husband excepted to the commissioner’s findings regarding spousal support and attorney’s
fees. Following a hearing, the trial court overruled husband’s exceptions to these findings.
Analysis
A. Spousal Support
“‘Whether and how much spousal support will be awarded is a matter of discretion for
the trial court.’” Northcutt v. Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)
(quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998)). On appeal, a
trial court’s decision on spousal support will not be reversed “‘unless there has been a clear
abuse of discretion.’” Id. (quoting Moreno v. Moreno, 24 Va. App. 190, 194-95, 440 S.E.2d
792, 794 (1997)).
Husband contends the trial court erred in making the spousal support award because (1)
wife did not show a need for spousal support, (2) husband’s monthly income is not $5,000, and
(3) wife has been “willfully unemployed” for six years.
1. Need
“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
-2- disturbed on appeal except for clear abuse of discretion.” Collier v. Collier, 2 Va. App. 125, 129,
341 S.E.2d 827, 829 (1986).
Husband argues that “[t]he evidence presented at the commissioner’s hearing clearly
showed that the Wife’s needs were adequately covered by Husband’s military retirement
awarded to Wife, the child support award to Wife and the imputation of income to Wife made by
the commissioner.” Even if we accept husband’s argument, wife’s need was but one factor for
the trial court to consider in making the spousal support determination. Other factors include the
“financial resources of the parties,” Code § 20-107.1(E)(1), “[t]he standard of living established
during the marriage,” Code § 20-107.1(E)(2), “[t]he duration of the marriage,” Code
§ 20-107.1(E)(3), “[t]he contributions, monetary and nonmonetary, of each party to the
well-being of the family,” Code § 20-107.3(E)(6), “[t]he earning capacity . . . of the parties,”
Code § 20-107.3(E)(9), “[t]he decisions regarding employment, career, economics, education
and parenting arrangements made by the parties during the marriage and their effect on present
and future earning potential, including the length of time one or both of the parties have been
absent from the job market,” Code § 20-107.3(E)(11), and “[t]he extent to which either party has
contributed to the attainment of education, training, career position or profession of the other
party,” Code § 20-107.3(E)(12).
Most, if not all, of these additional factors weigh in wife’s favor. The parties were
married for fifteen years, four months. During husband’s military career, the parties experienced
seven deployments and separations. They moved five times. During this time, wife provided
nonmonetary contributions to the marriage by maintaining the home and caring for the parties’
two children. Moreover, two support guideline tables, regularly used by courts in this
Commonwealth and which were admitted into evidence at the commissioner’s hearing, calculate
wife’s spousal support at more the $500. Considering the statutory factors and the evidence, we
-3- cannot say the trial court abused its discretion in ordering husband to pay monthly spousal
support in the amount of $500.
2. Husband’s Income
Husband complains that the evidence does not support the trial court’s finding that he
earns $5,000 per month from his law practice. “[B]ecause the trial court heard the evidence ore
tenus, we are bound by its findings of fact, unless plainly wrong or without evidence to support
them.” Yamada v. McLeod, 243 Va. 426, 430, 416 S.E.2d 222, 224 (1992).
Husband began practicing law in February 2002. Although the first few months of his
practice were lean ones, the evidence showed that by months six and seven he was averaging
over $5,000 per month in gross income. “[I]n setting support awards, a court ‘must look to
current circumstances and what the circumstances will be within the immediate or reasonably
foreseeable future.’” Furr v. Furr, 13 Va. App. 479, 482, 413 S.E.2d 72, 74 (1992) (citing
Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 679 (1990)) (other citations
omitted). In light of husband’s proven earnings at the time of the commissioner’s hearing, we
cannot say that the factual finding concerning husband’s income from his law practice was
plainly wrong or without evidence to support it.
3. Wife’s Unemployment or Underemployment
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
BRIAN GAY MEMORANDUM OPINION* v. Record No. 1539-03-1 PER CURIAM JANUARY 20, 2004 LAURA ANN GAY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge
(Brian Gay; The B & G Law Group, P.C.; Gay, Cipriano & Arrington, P.C., on briefs), for appellant.
(Jeffrey D. Tarkington; Sheera R. Herrell; Hofheimer/Ferrebee, P.C., on brief), for appellee.
Brian Gay (husband) appeals from the trial court’s final decree of divorce. On appeal,
husband contends the trial court erred in awarding spousal support to Laura A. Gay (wife) and in
ordering husband to pay $5,000 of wife’s attorney’s fees. 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. Rule 5A:27.1
Background
“On appeal, we construe the evidence in the light most favorable to wife, the prevailing
party below, granting to her evidence all reasonable inferences fairly deducible therefrom.”
Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing McGuire v.
McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Husband has moved for leave to file the appeal bond required by Code § 8.01-676.1. We grant that motion. We deny wife’s motion to dismiss the appeal. The trial court referred this matter to a commissioner in chancery. Following an evidentiary
hearing, the commissioner issued a report. In the report, the commissioner found that wife, who is
certified as a dental assistant, is underemployed. The commissioner imputed income to wife at the
rate of $9 per hour, or $1,560 per month. The commissioner also found that husband, who holds
J.D. and M.B.A. degrees, receives $5,000 per month from his law practice. The commissioner
found that husband should pay wife $500 per month in spousal support and should pay $5,000 of
her attorney’s fees.
Husband excepted to the commissioner’s findings regarding spousal support and attorney’s
fees. Following a hearing, the trial court overruled husband’s exceptions to these findings.
Analysis
A. Spousal Support
“‘Whether and how much spousal support will be awarded is a matter of discretion for
the trial court.’” Northcutt v. Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)
(quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998)). On appeal, a
trial court’s decision on spousal support will not be reversed “‘unless there has been a clear
abuse of discretion.’” Id. (quoting Moreno v. Moreno, 24 Va. App. 190, 194-95, 440 S.E.2d
792, 794 (1997)).
Husband contends the trial court erred in making the spousal support award because (1)
wife did not show a need for spousal support, (2) husband’s monthly income is not $5,000, and
(3) wife has been “willfully unemployed” for six years.
1. Need
“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
-2- disturbed on appeal except for clear abuse of discretion.” Collier v. Collier, 2 Va. App. 125, 129,
341 S.E.2d 827, 829 (1986).
Husband argues that “[t]he evidence presented at the commissioner’s hearing clearly
showed that the Wife’s needs were adequately covered by Husband’s military retirement
awarded to Wife, the child support award to Wife and the imputation of income to Wife made by
the commissioner.” Even if we accept husband’s argument, wife’s need was but one factor for
the trial court to consider in making the spousal support determination. Other factors include the
“financial resources of the parties,” Code § 20-107.1(E)(1), “[t]he standard of living established
during the marriage,” Code § 20-107.1(E)(2), “[t]he duration of the marriage,” Code
§ 20-107.1(E)(3), “[t]he contributions, monetary and nonmonetary, of each party to the
well-being of the family,” Code § 20-107.3(E)(6), “[t]he earning capacity . . . of the parties,”
Code § 20-107.3(E)(9), “[t]he decisions regarding employment, career, economics, education
and parenting arrangements made by the parties during the marriage and their effect on present
and future earning potential, including the length of time one or both of the parties have been
absent from the job market,” Code § 20-107.3(E)(11), and “[t]he extent to which either party has
contributed to the attainment of education, training, career position or profession of the other
party,” Code § 20-107.3(E)(12).
Most, if not all, of these additional factors weigh in wife’s favor. The parties were
married for fifteen years, four months. During husband’s military career, the parties experienced
seven deployments and separations. They moved five times. During this time, wife provided
nonmonetary contributions to the marriage by maintaining the home and caring for the parties’
two children. Moreover, two support guideline tables, regularly used by courts in this
Commonwealth and which were admitted into evidence at the commissioner’s hearing, calculate
wife’s spousal support at more the $500. Considering the statutory factors and the evidence, we
-3- cannot say the trial court abused its discretion in ordering husband to pay monthly spousal
support in the amount of $500.
2. Husband’s Income
Husband complains that the evidence does not support the trial court’s finding that he
earns $5,000 per month from his law practice. “[B]ecause the trial court heard the evidence ore
tenus, we are bound by its findings of fact, unless plainly wrong or without evidence to support
them.” Yamada v. McLeod, 243 Va. 426, 430, 416 S.E.2d 222, 224 (1992).
Husband began practicing law in February 2002. Although the first few months of his
practice were lean ones, the evidence showed that by months six and seven he was averaging
over $5,000 per month in gross income. “[I]n setting support awards, a court ‘must look to
current circumstances and what the circumstances will be within the immediate or reasonably
foreseeable future.’” Furr v. Furr, 13 Va. App. 479, 482, 413 S.E.2d 72, 74 (1992) (citing
Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 679 (1990)) (other citations
omitted). In light of husband’s proven earnings at the time of the commissioner’s hearing, we
cannot say that the factual finding concerning husband’s income from his law practice was
plainly wrong or without evidence to support it.
3. Wife’s Unemployment or Underemployment
Husband alleges that the trial court erroneously awarded spousal support to wife when
she “was willfully unemployed.” However, husband makes no further statement or argument in
support of this allegation. “Statements unsupported by argument, authority, or citations to the
record do not merit appellate consideration. We will not search the record for errors in order to
interpret appellant’s contention and correct deficiencies in a brief.” Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Moreover, the commissioner and the trial court
recognized that wife was underemployed and imputed income to her at the rate of $9 per hour.
-4- The trial court took this figure into account in arriving at its spousal support decision. Husband
has not demonstrated that the trial court erred.
B. Attorney’s Fees
The commissioner found that wife incurred $9,547.19 in attorney’s fees and costs. He
ordered husband to pay $5,000 of this sum. The trial court upheld the commissioner’s finding
and determination. “An award of attorney’s fees is a matter submitted to the trial court’s sound
discretion and is reviewable on appeal only for an abuse of discretion.” Richardson v.
Richardson, 30 Va. App. 341, 351, 516 S.E.2d 726, 731 (1999). “The key to a proper award of
fees is ‘reasonableness under all of the circumstances revealed by the record.’” Ragsdale v.
Ragsdale, 30 Va. App. 283, 297, 516 S.E.2d 698, 705 (1999) (quoting Westbrook v. Westbrook,
5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)).
Considering the length of the proceedings, the number of issues in dispute, wife’s success
on most of those issues, and the difference in the parties’ earnings and earning capacity, we
cannot say that the trial court abused its discretion in awarding wife $5,000 in fees.
Wife has moved for an award of attorney’s fees incurred in conjunction with this appeal.
Upon consideration of the entire record in this case, we hold that wife is entitled to a reasonable
amount of attorney’s fees and costs, and we remand for the trial court to set a reasonable award
of costs and counsel fees incurred in this appeal. See O’Loughlin v. O’Loughlin, 23 Va. App.
690, 695, 479 S.E.2d 98, 100 (1996).
Affirmed and remanded.
-5-