George A. Roussel IV v. Patricia A Roussel

• Court: Court of Appeals of Virginia
• Decided: November 5, 2002
• Docket: 1562023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

GEORGE A. ROUSSEL, IV MEMORANDUM OPINION * v. Record No. 1562-02-3 PER CURIAM NOVEMBER 5, 2002 PATRICIA A. ROUSSEL

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge

(Stephen G. Cochran; Womble Carlyle Sandridge & Rice, PLLC, on brief), for appellant.

(David A. Penrod; Hoover, Penrod, Davenport & Crist, on brief), for appellee.

George A. Roussel, IV appeals the trial court's award of

spousal support to Patricia A. Roussel. On appeal, husband

contends the trial court abused its discretion in awarding spousal

support for an indefinite period of time and in determining the

amount of spousal support. Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit.

Rule 5A:27. Accordingly, we affirm the judgment of the trial

court.

BACKGROUND

"On review, we consider the evidence in the light most

favorable to the party prevailing in the trial court."

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,

31 (1989). The trial court made the following findings concerning

the couple's lifestyle:

Irrespective of what may be said, [husband's attorney]'s minimizing of it, and it is true that it is probably not a lifestyle that would make headlines in the lives of the rich and famous, but it certainly is by community standards a very luxurious lifestyle. A twin engine airplane. Apparently a very fancy cabin cruiser or fishing troller or yacht that they used. Trips to the Carribean. Trips to Mexico. And even the fact that they may have been paid in whole or in part by drug companies does not take away from the fact that it established a certain level of a certain lifestyle during the course of the marriage. In that regard the [c]ourt finds that the lifestyle was quite opulent. And although they did exercise frugalities in order to obtain some of these more expensive luxuries they nevertheless had a good lifestyle.

In its decision announced from the bench, the trial court

stated that it considered the factors in Code § 20-107.1(E) in

determining the support award. The trial court also reviewed

its reasons for awarding wife $2,250 per month in support,

payable until the death of one of the parties, wife's

remarriage, or other statutory basis upon which the support

could be terminated.

ANALYSIS

"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.

- 2 - 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).

The record clearly reflects the trial court considered the

statutory factors in Code § 20-107.1, with emphasis upon those

factual findings deemed pertinent to the decision, all of which

were well supported by the evidence. The court indicated it

considered husband's adultery, the financial resources of the

parties, the lifestyle of the parties during the marriage, the

length of the parties' marriage, the monetary and non-monetary

contributions of each party, the property interests of each party,

and the earning capacity of each party in its determination of the

award. The trial court's decision was based upon the required

factors.

Husband argues that the trial court failed to consider the

parties' respective obligations and needs. Both parties

introduced numerous exhibits into evidence consisting of

documentation and affidavits addressing their financial

- 3 - circumstances. Furthermore, the trial court specifically found

that husband had "significantly more resources" than wife "in

terms of assets." The court also concluded that husband had the

ability to generate income that was three to four times the income

of wife. The trial court's rulings were not plainly wrong or

without evidence to support them.

Husband contends the trial court abused its discretion in

finding that the parties led a luxurious lifestyle during the

marriage. However, the trial court found that "by community

standards," the parties led a "very luxurious lifestyle." The

parties stipulated that wife's income was $40,000 per year. At

the time of the divorce, husband was self-employed as a medical

doctor. The trial court found that husband's income was $144,000

per year. Furthermore, the evidence showed that the parties lived

in a large house located on thirty-five acres of land, owned an

airplane, owned a cabin cruiser which was docked near the

Chesapeake Bay, traveled extensively, and divided property valued

at over one million dollars. This evidence clearly supported the

trial court's findings.

Husband asserts the trial court relied "overwhelmingly" on

his marital fault and used the spousal support award to punish

him. We find no support for this allegation. While the trial

court stated that husband's adultery tipped the scale in favor

of wife, the trial court listed numerous other factors it

considered in determining the spousal support award, including

- 4 - the lifestyle of the parties during the marriage and the

discrepancy in the incomes of the parties.

Husband argues the trial court failed to consider his

actual ability to pay spousal support. Husband introduced into

evidence financial documents and affidavits showing his expenses

and financial circumstances. In addition, the trial court

specifically found that husband's "earning capacity is such that

he has a substantial ability to make payments." Therefore, the

record indicates the trial court considered this factor.

awarding support for an indefinite period of time. "[Code

§ 20-107.1] does not require the trial court to specify the date

of termination of a spousal support award. In fact, the

language allows the trial court to order an award for an

undefined duration." Joynes v. Payne, 36 Va. App. 401, 423, 551

S.E.2d 10, 21 (2001). Therefore, the trial court did not abuse

its discretion.

Husband argues the trial court abused its discretion in

determining the amount of the support award. As stated above,

the trial court carefully considered the necessary factors and

based its determination upon the evidence presented, the

relative needs of the parties, and their ability to pay. The

trial court's decision is well supported by the evidence.

Wife has requested that we remand to the trial court the

issue of whether she is entitled to recover her attorney's fees

- 5 - and costs incurred in 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.

For the foregoing reasons, we affirm the trial court and

remand to assess the wife's reasonable attorney fees for this

appeal.

Affirmed and remanded.

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