COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
DOUGLAS S. JORDAN MEMORANDUM OPINION * BY v. Record No. 1533-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 27, 1998 MARY ELMORE JORDAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY M. Langhorne Keith, Judge Robert L. Vaughn, Jr. (Glennon, Goodman, Lubeley, Vaughn & Walker, L.L.P., on briefs), for appellant.
Carolyn T. Hogans (Dennis M. Hottell; John E. Byrnes; Dennis M. Hottell & Associates, P.C., on brief), for appellee.
On appeal from the trial court's decision awarding Mary
Elmore Jordan (wife) spousal support, Douglas S. Jordan (husband)
contends that the court erred in its determination of the proper
amount. We find no error and affirm the judgment of the trial
court.
I. Background
The parties were married December 19, 1965, early in
husband's naval career. During the marriage, the parties
relocated at least five times, and wife performed all household
duties. Husband obtained his master's degree during the
marriage. Wife, who had two years of college and a secretarial * Pursuant to Code § 17-116.010 this opinion is not designated for publication. degree, was employed full-time throughout the marriage except for
approximately five years after the parties' daughter, Lynn, was
born in 1970. Lynn suffers some degree of mental illness and has
never lived independently. Wife continued to provide Lynn a home
and financial support.
The parties' lifestyle during the marriage included owning a
townhome in Virginia, driving late model cars, taking vacations
regularly, sending their daughter to one year of college, and
eating out regularly. Husband retired from the Navy with the
rank of Commander and secured an additional job in McLean,
Virginia, which ultimately led to a transfer to California. Wife
gave up her job, and the parties moved to California in 1990 and
purchased a home. Husband was laid off in 1992, and the mortgage
was foreclosed. When the parties returned from California, husband secured
employment at a salary of $64,000 per year and lived first with
friends and eventually in a two-bedroom apartment in Reston,
Virginia. Wife and the parties' adult child lived in wife's
sister's home in South Carolina, which was temporarily vacant,
and wife was employed at a wage of $8.94 per hour. After the
parties decided to terminate the marriage, wife told husband she
wanted to use some of the money in the parties' joint account for
a down payment to buy a home in South Carolina. Husband, without
consulting wife, transferred all of the parties' joint money into
an account in his name alone. He also ceased sending wife money,
2 as he had been doing during the separation. Wife was later
awarded court-ordered pendente lite support.
When wife's sister returned to her home in South Carolina,
wife and Lynn moved to a small, run-down rental property in a
depressed neighborhood. There were only two or three rental
properties available when she began her search. The rented home
is "nothing like what [wife was] used to living in." Wife
considered the area unsafe and was required to call the police
for aid during at least four neighborhood disturbances. During
the pendency of this case, wife has been "scared to spend money"
and has saved as much as possible. On April 15, 1997, a final hearing was scheduled on the
issues of equitable distribution and spousal support. The
parties resolved the equitable distribution issue by agreeing to
an approximately equal division of assets. At the hearing on
spousal support, the court heard the testimony of the parties and
received exhibits. By letter opinion issued April 22, 1997, wife
was awarded support of $1,200 per month. Husband filed a motion
seeking enforcement of a settlement he contended the parties had
reached prior to the hearing and a motion to reconsider the
spousal support award. Both motions were denied, and a final
divorce decree was entered May 9, 1997.
II.
We will not reverse a trial court's determination of spousal
support unless it is "plainly wrong or without evidence to
3 support it." Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d
792, 794 (1997) (citations omitted). Moreover, on appeal, we
view the evidence and all reasonable inferences therefrom in the
light most favorable to the party prevailing below. See Gottlieb
v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 668 (1994).
Code § 20-107.1 sets out the factors to be considered in
setting spousal support. A court is not required to "quantify or
elaborate exactly what weight or consideration it has given to
each of the statutory factors," as long as the court's ruling has
"some foundation based on the evidence presented." Woolley v.
Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). "'When
a trial court awards spousal support based upon due consideration
of the factors enumerated in Code § 20-107.1, as shown by the
evidence, its determination will not be disturbed except for a
clear abuse of discretion.'" Huger v. Huger, 16 Va. App. 785,
791, 433 S.E.2d 255, 259 (1993) (citation omitted).
Husband contends that the trial court erroneously considered
evidence of speculative future expenditures for maintenance and
repairs to wife's rental property, new household furnishings, a
new vehicle, and legal fees. "[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
4 omitted). See Code § 20-107.1. "What is 'reasonably
foreseeable' depends on the circumstances of the particular
case." Furr, 13 Va. App. at 482, 413 S.E.2d at 74. In the
instant case, the trial court found that wife was living in a
"dilapidated house in a rundown neighborhood" and that she "has
not had a vacation in four years, is living in a marginal
neighborhood, and is driving a seven year old automobile." The
court considered these circumstances when it determined wife's
expenses, and we cannot hold that its conclusion was either
unsupported by the evidence or an abuse of discretion. Husband next contends that the trial court erred in
considering wife's expenses on behalf of the parties' adult
daughter in fashioning the spousal support award. This argument
lacks merit. While the evidence established that the parties
assisted their adult child during the marriage and wife continued
to do so after the separation, the trial court explicitly stated
in its letter opinion that "the expense Ms. Jordan is spending on
Lynn was not a determinative factor and the Court's award would
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
DOUGLAS S. JORDAN MEMORANDUM OPINION * BY v. Record No. 1533-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 27, 1998 MARY ELMORE JORDAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY M. Langhorne Keith, Judge Robert L. Vaughn, Jr. (Glennon, Goodman, Lubeley, Vaughn & Walker, L.L.P., on briefs), for appellant.
Carolyn T. Hogans (Dennis M. Hottell; John E. Byrnes; Dennis M. Hottell & Associates, P.C., on brief), for appellee.
On appeal from the trial court's decision awarding Mary
Elmore Jordan (wife) spousal support, Douglas S. Jordan (husband)
contends that the court erred in its determination of the proper
amount. We find no error and affirm the judgment of the trial
court.
I. Background
The parties were married December 19, 1965, early in
husband's naval career. During the marriage, the parties
relocated at least five times, and wife performed all household
duties. Husband obtained his master's degree during the
marriage. Wife, who had two years of college and a secretarial * Pursuant to Code § 17-116.010 this opinion is not designated for publication. degree, was employed full-time throughout the marriage except for
approximately five years after the parties' daughter, Lynn, was
born in 1970. Lynn suffers some degree of mental illness and has
never lived independently. Wife continued to provide Lynn a home
and financial support.
The parties' lifestyle during the marriage included owning a
townhome in Virginia, driving late model cars, taking vacations
regularly, sending their daughter to one year of college, and
eating out regularly. Husband retired from the Navy with the
rank of Commander and secured an additional job in McLean,
Virginia, which ultimately led to a transfer to California. Wife
gave up her job, and the parties moved to California in 1990 and
purchased a home. Husband was laid off in 1992, and the mortgage
was foreclosed. When the parties returned from California, husband secured
employment at a salary of $64,000 per year and lived first with
friends and eventually in a two-bedroom apartment in Reston,
Virginia. Wife and the parties' adult child lived in wife's
sister's home in South Carolina, which was temporarily vacant,
and wife was employed at a wage of $8.94 per hour. After the
parties decided to terminate the marriage, wife told husband she
wanted to use some of the money in the parties' joint account for
a down payment to buy a home in South Carolina. Husband, without
consulting wife, transferred all of the parties' joint money into
an account in his name alone. He also ceased sending wife money,
2 as he had been doing during the separation. Wife was later
awarded court-ordered pendente lite support.
When wife's sister returned to her home in South Carolina,
wife and Lynn moved to a small, run-down rental property in a
depressed neighborhood. There were only two or three rental
properties available when she began her search. The rented home
is "nothing like what [wife was] used to living in." Wife
considered the area unsafe and was required to call the police
for aid during at least four neighborhood disturbances. During
the pendency of this case, wife has been "scared to spend money"
and has saved as much as possible. On April 15, 1997, a final hearing was scheduled on the
issues of equitable distribution and spousal support. The
parties resolved the equitable distribution issue by agreeing to
an approximately equal division of assets. At the hearing on
spousal support, the court heard the testimony of the parties and
received exhibits. By letter opinion issued April 22, 1997, wife
was awarded support of $1,200 per month. Husband filed a motion
seeking enforcement of a settlement he contended the parties had
reached prior to the hearing and a motion to reconsider the
spousal support award. Both motions were denied, and a final
divorce decree was entered May 9, 1997.
II.
We will not reverse a trial court's determination of spousal
support unless it is "plainly wrong or without evidence to
3 support it." Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d
792, 794 (1997) (citations omitted). Moreover, on appeal, we
view the evidence and all reasonable inferences therefrom in the
light most favorable to the party prevailing below. See Gottlieb
v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 668 (1994).
Code § 20-107.1 sets out the factors to be considered in
setting spousal support. A court is not required to "quantify or
elaborate exactly what weight or consideration it has given to
each of the statutory factors," as long as the court's ruling has
"some foundation based on the evidence presented." Woolley v.
Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). "'When
a trial court awards spousal support based upon due consideration
of the factors enumerated in Code § 20-107.1, as shown by the
evidence, its determination will not be disturbed except for a
clear abuse of discretion.'" Huger v. Huger, 16 Va. App. 785,
791, 433 S.E.2d 255, 259 (1993) (citation omitted).
Husband contends that the trial court erroneously considered
evidence of speculative future expenditures for maintenance and
repairs to wife's rental property, new household furnishings, a
new vehicle, and legal fees. "[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
4 omitted). See Code § 20-107.1. "What is 'reasonably
foreseeable' depends on the circumstances of the particular
case." Furr, 13 Va. App. at 482, 413 S.E.2d at 74. In the
instant case, the trial court found that wife was living in a
"dilapidated house in a rundown neighborhood" and that she "has
not had a vacation in four years, is living in a marginal
neighborhood, and is driving a seven year old automobile." The
court considered these circumstances when it determined wife's
expenses, and we cannot hold that its conclusion was either
unsupported by the evidence or an abuse of discretion. Husband next contends that the trial court erred in
considering wife's expenses on behalf of the parties' adult
daughter in fashioning the spousal support award. This argument
lacks merit. While the evidence established that the parties
assisted their adult child during the marriage and wife continued
to do so after the separation, the trial court explicitly stated
in its letter opinion that "the expense Ms. Jordan is spending on
Lynn was not a determinative factor and the Court's award would
not be different if Lynn were self-sufficient," in effect giving
no weight to wife's support of Lynn.
Husband next argues that the record fails to support the
trial court's finding that the parties' multiple relocations
throughout the marriage "precluded any opportunity to further
[wife's] education." Husband claims that he encouraged wife to
return to school and that "[s]he could easily have availed
5 herself of the opportunity to improve her education" during the
ten-year period she was employed at George Mason University.
Wife was employed full-time during the marriage except when Lynn
was quite young, and she testified that continuing her education
would have been difficult because of the parties' frequent
relocations. Credible evidence exists to support the trial
court's finding.
Lastly, husband argues that the amount of spousal support
determined by the court is excessive in light of wife's
"conscious choice" to live in her present circumstances and her
ability to save 85% of her pendente lite payments. He further
claims that "[t]here was absolutely no testimony that the house
occupied by Ms. Jordan was in a state of disrepair, much less
dilapidated." Contrary to husband's assertions, the record is
replete with evidence establishing a markedly lower standard of
living. Due to husband's seizure of the parties' joint assets,
wife was unable to buy a home, and her choice of rental
properties was quite limited. From photographic evidence
reflected in the record, the trial court found her rented home to
be "a hovel." Furthermore, wife testified that she no longer
goes out to eat or takes vacations and that she is afraid to
spend money for fear that she could not meet her expenses. Wife
"should not be penalized . . . for her frugality in establishing
a savings account as a shield against emergencies." Moon v. Moon, 210 Va. 575, 577, 172 S.E.2d 778, 779 (1970). See Via v.
6 Via, 14 Va. App. 868, 419 S.E.2d 431 (1992). The trial court
duly considered the relevant factors and concluded that wife
"certainly is living . . . in conditions that are not up to the
conditions that she lived in while she was married." We hold
that the award of spousal support was not an abuse of
discretion. 1
Wife has requested an award of attorney's fees for matters
relating to this appeal. Accordingly, we remand this case to the
trial court for the sole purpose of entering an appropriate award
of attorney's fees for services rendered to wife on appeal. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
For the foregoing reasons, we affirm the judgment of the
trial court and remand the case to the trial court for
determination of the attorney's fees incurred in this appeal.
Affirmed and remanded.
1 Husband also contends that the trial court's award is excessive and that there is "no other rational way to explain the court's findings and ultimate ruling" other than that it serves to penalize him and reward wife for their respective relationships with their daughter. Having determined that the award is not excessive, we need not consider this argument.