David M. Bromley v. Vicki D. Bromley

• Court: Court of Appeals of Virginia
• Decided: February 18, 1997
• Docket: 1905962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

DAVID M. BROMLEY MEMORANDUM OPINION * v. Record No. 1905-96-2 PER CURIAM FEBRUARY 18, 1997 VICKI D. BROMLEY

FROM THE CIRCUIT COURT OF RICHMOND COUNTY Joseph E. Spruill, Jr., Judge

(Gordon A. Wilkins; Wilkins & Davison, on brief), for appellant. (William R. Curdts; Dunton, Simmons & Dunton, on brief), for appellee.

David M. Bromley (husband) appeals the decision of the

circuit court setting the amount of spousal support paid to Vicki

D. Bromley (wife) and deciding other issues. On appeal, he

contends that the trial court erred in (1) finding him in

contempt, (2) finding wife to be unable to hold gainful

employment, (3) continuing wife's spousal support, (4) failing to

consider all the spousal support statutory factors, and (5)

awarding wife 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.

I. A trial court "has the authority to hold [an] offending party in contempt for acting in bad * Pursuant to Code § 17-116.010 this opinion is not designated for publication. faith or for willful disobedience of its order." In a show cause hearing, the moving party need only prove that the offending party failed to comply with an order of the trial court. The offending party then has the burden of proving justification for his or her failure to comply.

Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669

(1991) (citation omitted).

By order of the juvenile and domestic relations district

court, husband was responsible for payment of the parties'

mortgage, insurance and taxes. The circuit court reaffirmed

husband's obligation for those payments in its July 24, 1995

order. Nevertheless, husband unilaterally discontinued those

payments after that date. The marital home was lost due to

foreclosure. Husband's failure to pay personal property taxes

barred wife from obtaining the necessary county decal for her

automobile. Husband did not seek court approval before stopping the

payments. The trial court found that husband lacked sufficient

justification for his failure to make the payments. We find no

error in the trial court's decision finding husband in contempt.

Husband also contends that wife failed to demonstrate she

suffered harm because he failed to comply with the court order.

We find no evidence that husband raised this argument below and

we will not consider it for the first time on appeal. Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18).

2 II.

Evidence introduced in the trial court demonstrated that

wife suffered from Epstein-Barr Chronic Fatigue and fibromyalgia.

She had not worked in twelve years. Husband conceded that wife

had medical problems during the marriage. The trial court found

that "the evidence before me is that she's not physically able to

work. Her health doesn't permit it. So I'm sort of bound by

that testimony, and it's somewhat convincing because of the fact

that for 12 years she has not worked." As evidence in the record

supports the trial court's conclusion, husband's claim that the

court erred in finding wife was not able to work is without

merit. III.

Husband concedes that wife is entitled to spousal support,

but argues on appeal that the amount of $600, when combined with

the children's support and medical insurance, is grossly unfair

based upon his earnings. Where a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage.

Gamble v. Gamble, 14 Va. App. 558, 573-74, 421 S.E.2d 635, 644

(1992).

While the court did not expressly so state, it is readily

apparent from the record and from the court's final decision that

3 it found a material change in the parties' circumstances

warranting modification of the spousal support payment. The

trial court considered the parties' current incomes and expenses

before modifying husband's spousal support payments. While the

court increased the spousal support payable to wife from $150 to

$600 a month, it relieved husband of any additional

responsibilities for wife's expenses, including wife's medical

insurance. Husband's responsibility for the mortgage payments

also no longer existed. The net result was a reduction in

husband's monthly financial obligations to wife and the parties'

children. Husband also acknowledged that he shared living

expenses and income with his live-in companion. We cannot say the court's decision balancing wife's needs

for support against husband's ability to pay was clearly

erroneous or an abuse of its discretion.

IV.

Husband contends that the trial court failed to consider the

ability of wife to seek employment and that, as a result, its

determination of the amount of spousal support was reversible

error. On the contrary, the record demonstrates that the trial

court found credible the evidence that wife was not able to work.

Therefore, husband's argument is without merit.

V.

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

sound discretion of the trial court and is reviewable on appeal

4 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). Appellant argues that because the divorce decree entered

April 10, 1995 was silent as to attorney's fees, the issue was

not reserved and the court lacked authority to award fees

incurred prior to the July 10, 1995 hearing. Appellant further

contends that the record is insufficient to demonstrate when the

awarded fees were incurred. Wife requested attorney's fees in her motion for contempt

and support modification. The evidence demonstrated that, since

the time of the July 10, 1995 hearing, wife incurred attorney's

fees in connection with the foreclosure, husband's bankruptcy,

and the pending motion. Wife's counsel indicated that the

outstanding fees as of the date of the hearing were $6,000. The

court awarded $2,500.

Husband cites Dixon v. Pugh, 244 Va. 539, 423 S.E.2d 169 (1992), in support of his contention that the court's failure to

reserve jurisdiction over attorney's fees in the final decree

barred it from awarding fees. However, Dixon dealt with the

failure to reserve jurisdiction over spousal support, the right

to which is strictly a creation of statute. Id. at 543, 423

S.E.2d at 170-71. That case is inapposite.

The circuit court had authority to award attorney's fees in

5 a matter properly before it. Cf. Fairfax County Dep't of Human

Dev. v. Donald, 251 Va. 227, 467 S.E.2d 803 (1996). Husband's

income was substantially higher than wife's, and his actions had

caused wife to incur fees relating to bankruptcy and foreclosure.

Therefore, we cannot say that the award was unreasonable or that

the trial judge abused his discretion in making the award.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.