COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
CHANDRU M. BAXANI MEMORANDUM OPINION * v. Record No. 2945-02-2 PER CURIAM JULY 1, 2003 CHUI YING C. BAXANI
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Thomas T. Hassell, Jr., for appellant.
Andrea C. Long (Boone, Beale, Cosby & Long, on brief), for appellee.
Chandru M. Baxani, husband, appeals the final divorce decree
of the trial court concerning the equitable distribution award
and the spousal support award to Chui Ying C. Baxani, wife. On
appeal, husband contends the trial court erred by: (1) awarding
attorney's fees to wife; (2) failing to credit him for
post-separation mortgage payments; (3) awarding spousal support to
wife; and (4) failing to make written findings identifying the
factors that sustain its spousal support award. Wife also
requests an award of attorney's fees she has incurred in defense
of this appeal. Upon review of the briefs and the record, we
conclude that husband's 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. BACKGROUND
The parties married in 1971 and had three children together,
one of whom was under the age of eighteen at the time of the
divorce. Wife moved out of the marital residence in July 1998,
and husband asserts that she deserted the marriage. However, wife
contends the parties discussed ending the marriage, separating,
and selling the marital residence prior to her move.
Wife filed a bill of complaint seeking a divorce on the
ground of living separate and apart continuously for a period
exceeding one year. She also sought spousal support and the
equitable distribution of the parties' property.
The trial court granted the parties a divorce on the ground
of having lived separate and apart for a period in excess of one
year. In its July 2, 2002 letter opinion, the trial court awarded
wife spousal support in the amount of $450 per month. It also
ordered that the parties sell the marital residence and divide the
net proceeds equally. Husband was to receive a monetary credit
for the costs of several repairs he had made to the house after
the parties separated. The trial court also ordered that husband
was responsible for any necessary repairs to the house as
suggested by a real estate agent and that he would be reimbursed
for these repairs from the proceeds of the sale. The trial court
denied husband's request for credit for post-separation mortgage
payments he made. In addition, the court awarded wife $5,000 in
attorney's fees.
- 2 - Husband raised objections to the trial court's decision and
he requested that the court reconsider its rulings concerning the
awards for attorney's fees and spousal support and the failure to
credit husband for the post-separation mortgage payments. The
trial court declined to reconsider its decision.
ATTORNEY'S FEES
"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." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987) (citation omitted). "The key to a
proper award of counsel fees is reasonableness under all the
circumstances." Lightburn v. Lightburn, 22 Va. App. 612, 621, 472
S.E.2d 281, 285 (1996).
Husband argues that the award of attorney's fees was an abuse
of discretion because wife deserted the marriage and because the
income of the parties is substantially identical. Although
husband asserted that wife deserted the marriage, wife contended
that the parties discussed getting a divorce and selling the
marital home prior to her moving from the marital home. She also
indicated that she moved from the martial residence only after
husband failed to take steps to sell the house. Furthermore, the
trial court granted the divorce on the ground that the parties had
lived separate and apart in excess of one year, not on the ground
of desertion. Moreover, as husband admits, even after taking into
account husband's monthly spousal support payment to wife, his
- 3 - income remains $1,200 per year greater than wife's income.
Accordingly, the trial court did not abuse its discretion in
awarding wife $5,000 in attorney's fees.
POST-SEPARATION MORTGAGE PAYMENTS
The record established that husband retained exclusive use of
the marital residence after the parties separated. He also made
all of the post-separation monthly mortgage payments. "Although
the separate contribution of one party to the acquisition, care,
and maintenance of marital property is a factor that the trial
court must consider when making its award of equitable
distribution, Code § 20-107.3 does not mandate that the trial
court award a corresponding dollar-for-dollar credit for such
contributions." Von Raab v. Von Raab, 26 Va. App. 239, 249-50,
494 S.E.2d 156, 161 (1997). In addition, since the parties
separated, husband received the tax benefits associated with
paying the mortgage interest and the real estate property taxes
for the house, while wife paid rent for an apartment where she and
several of the parties' children lived. Therefore, we cannot say
that the trial court abused its discretion by refusing to award
husband a credit for his post-separation mortgage payments on the
marital residence property.
SPOUSAL SUPPORT
"In awarding spousal support, the [trial court] must consider
the relative needs and abilities of the parties. [The court] is
guided by the . . . factors that are set forth in Code § 20-107.1.
- 4 - When the [trial court] has given due consideration to these
factors, [its] determination will not be disturbed on appeal
except for clear abuse of discretion." Collier v. Collier, 2
Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). "'In fixing the
amount of the spousal support award, . . . the court's ruling 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.'"
Moreno v. Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794
(1997) (citation omitted).
In its letter opinion, the trial court specifically stated
that it considered the statutory factors for making a spousal
support award, including the length of the marriage and the
earning capacities of the parties. Indeed, the evidence showed
that husband and wife were married for over thirty years. Husband
earns $36,000 per year and wife earns $24,000 per year. Wife is
in poor physical condition, has undergone several recent surgical
operations, and faces more medical treatments. The evidence also
showed that, during the marriage, wife made numerous monetary and
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
CHANDRU M. BAXANI MEMORANDUM OPINION * v. Record No. 2945-02-2 PER CURIAM JULY 1, 2003 CHUI YING C. BAXANI
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Thomas T. Hassell, Jr., for appellant.
Andrea C. Long (Boone, Beale, Cosby & Long, on brief), for appellee.
Chandru M. Baxani, husband, appeals the final divorce decree
of the trial court concerning the equitable distribution award
and the spousal support award to Chui Ying C. Baxani, wife. On
appeal, husband contends the trial court erred by: (1) awarding
attorney's fees to wife; (2) failing to credit him for
post-separation mortgage payments; (3) awarding spousal support to
wife; and (4) failing to make written findings identifying the
factors that sustain its spousal support award. Wife also
requests an award of attorney's fees she has incurred in defense
of this appeal. Upon review of the briefs and the record, we
conclude that husband's 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. BACKGROUND
The parties married in 1971 and had three children together,
one of whom was under the age of eighteen at the time of the
divorce. Wife moved out of the marital residence in July 1998,
and husband asserts that she deserted the marriage. However, wife
contends the parties discussed ending the marriage, separating,
and selling the marital residence prior to her move.
Wife filed a bill of complaint seeking a divorce on the
ground of living separate and apart continuously for a period
exceeding one year. She also sought spousal support and the
equitable distribution of the parties' property.
The trial court granted the parties a divorce on the ground
of having lived separate and apart for a period in excess of one
year. In its July 2, 2002 letter opinion, the trial court awarded
wife spousal support in the amount of $450 per month. It also
ordered that the parties sell the marital residence and divide the
net proceeds equally. Husband was to receive a monetary credit
for the costs of several repairs he had made to the house after
the parties separated. The trial court also ordered that husband
was responsible for any necessary repairs to the house as
suggested by a real estate agent and that he would be reimbursed
for these repairs from the proceeds of the sale. The trial court
denied husband's request for credit for post-separation mortgage
payments he made. In addition, the court awarded wife $5,000 in
attorney's fees.
- 2 - Husband raised objections to the trial court's decision and
he requested that the court reconsider its rulings concerning the
awards for attorney's fees and spousal support and the failure to
credit husband for the post-separation mortgage payments. The
trial court declined to reconsider its decision.
ATTORNEY'S FEES
"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." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987) (citation omitted). "The key to a
proper award of counsel fees is reasonableness under all the
circumstances." Lightburn v. Lightburn, 22 Va. App. 612, 621, 472
S.E.2d 281, 285 (1996).
Husband argues that the award of attorney's fees was an abuse
of discretion because wife deserted the marriage and because the
income of the parties is substantially identical. Although
husband asserted that wife deserted the marriage, wife contended
that the parties discussed getting a divorce and selling the
marital home prior to her moving from the marital home. She also
indicated that she moved from the martial residence only after
husband failed to take steps to sell the house. Furthermore, the
trial court granted the divorce on the ground that the parties had
lived separate and apart in excess of one year, not on the ground
of desertion. Moreover, as husband admits, even after taking into
account husband's monthly spousal support payment to wife, his
- 3 - income remains $1,200 per year greater than wife's income.
Accordingly, the trial court did not abuse its discretion in
awarding wife $5,000 in attorney's fees.
POST-SEPARATION MORTGAGE PAYMENTS
The record established that husband retained exclusive use of
the marital residence after the parties separated. He also made
all of the post-separation monthly mortgage payments. "Although
the separate contribution of one party to the acquisition, care,
and maintenance of marital property is a factor that the trial
court must consider when making its award of equitable
distribution, Code § 20-107.3 does not mandate that the trial
court award a corresponding dollar-for-dollar credit for such
contributions." Von Raab v. Von Raab, 26 Va. App. 239, 249-50,
494 S.E.2d 156, 161 (1997). In addition, since the parties
separated, husband received the tax benefits associated with
paying the mortgage interest and the real estate property taxes
for the house, while wife paid rent for an apartment where she and
several of the parties' children lived. Therefore, we cannot say
that the trial court abused its discretion by refusing to award
husband a credit for his post-separation mortgage payments on the
marital residence property.
SPOUSAL SUPPORT
"In awarding spousal support, the [trial court] must consider
the relative needs and abilities of the parties. [The court] is
guided by the . . . factors that are set forth in Code § 20-107.1.
- 4 - When the [trial court] has given due consideration to these
factors, [its] determination will not be disturbed on appeal
except for clear abuse of discretion." Collier v. Collier, 2
Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). "'In fixing the
amount of the spousal support award, . . . the court's ruling 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.'"
Moreno v. Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794
(1997) (citation omitted).
In its letter opinion, the trial court specifically stated
that it considered the statutory factors for making a spousal
support award, including the length of the marriage and the
earning capacities of the parties. Indeed, the evidence showed
that husband and wife were married for over thirty years. Husband
earns $36,000 per year and wife earns $24,000 per year. Wife is
in poor physical condition, has undergone several recent surgical
operations, and faces more medical treatments. The evidence also
showed that, during the marriage, wife made numerous monetary and
non-monetary contributions to the well-being of the family and
their home. She also worked for husband's clothing businesses
from about 1977 to 1981.
In addition, as stated above, the trial court did not find
that wife deserted the marriage. Moreover, wife testified that
she suffered both verbal and emotional abuse from husband during
- 5 - the marriage. Based on this evidence, we cannot say that the
trial court abused its discretion in awarding wife spousal
support.
CODE § 20-107.1 FACTORS
Husband asserts that the trial court erred in failing to make
written findings and conclusions pursuant to Code § 20-107.1,
identifying the factors that support the spousal support award.
However, husband failed to make this argument to the trial court.
"The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration
of this question on appeal. Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
ATTORNEY'S FEES ON APPEAL
Wife has requested attorney's fees for matters relating to
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 incurred in this appeal and we remand this matter
to the trial court for it to determine the proper amount of the
award.
- 6 - Accordingly, we summarily affirm this appeal and remand the
matter to the trial court for the determination of wife's
attorney's fees incurred on appeal.
Affirmed and remanded.
- 7 -