COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia
GREGORY SHAFFER MEMORANDUM OPINION * BY v. Record No. 3329-02-4 JUDGE D. ARTHUR KELSEY JULY 29, 2003 LINDA SHAFFER
FROM THE CIRCUIT COURT OF STAFFORD COUNTY Ann Hunter Simpson, Judge
Stephen D. Quatannens for appellant.
Lawrence D. Diehl for appellee.
Asserting twenty-nine assignments of error, Gregory Shaffer
challenges the grounds upon which the trial court granted his
wife a divorce, the award of sole legal custody of his children
to his wife, the award of spousal and child support, the
equitable distribution award, and the award to his wife of
attorney's fees incurred in the trial court.
The chancellor addressed each of these issues in a
comprehensive letter opinion. Finding no error in the trial
court's analysis or its holdings, we affirm. Because many of
husband's arguments have little or no legal merit, we grant
wife's request for attorney's fees on appeal and remand this
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. matter to the trial court to review the reasonableness of her
requested amount.
I.
When reviewing a chancellor's decision on appeal, we view
the evidence in the light most favorable to the prevailing
party, granting her the benefit of any reasonable inferences.
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835
(2003). "That principle requires us to discard the evidence of
the appellant which conflicts, either directly or inferentially,
with the evidence presented by the appellee at trial." Id.
(citations and internal quotations omitted).
Gregory ("husband") and Linda Shaffer ("wife") married on
September 30, 1989. The couple had two daughters, born in 1991
and 1994. Wife quit her job as a sales manager after she and
husband agreed that she would be a stay-home mother and the
"primary caretaker for the children."
In 1993, upon returning from a business trip to Ohio,
husband admitted to wife that he had been "in bed" with a woman
he met in a bar. Husband denied, however, having intercourse
with the woman. Husband also promised never again to be
unfaithful. Wife forgave husband, but made clear to him that
"the marriage would not survive another incident of infidelity."
In 1995, husband accepted a new job that involved extensive
domestic and international travel. "He was hardly ever home,"
- 2 - wife recalled. During this period, wife maintained the
household and raised the children.
After returning from a trip in March 2000, husband
announced that he did not "know if I want to be married anymore,
marriage is boring." To liven the relationship, husband
suggested, the couple should "go out to bars and go dancing and
get drunk." Husband also complained that wife did not do enough
to stimulate him sexually or to "keep things exciting." Hearing
this news, wife felt emotionally "devastated."
Husband left on another trip, this time to Pakistan. After
his return, husband admitted that he had "committed adultery"
with numerous women for a "long time." Included in his
indiscretions were sexual relations with "a nurse," "a patient,"
"another nurse," and, when on trips, at least four women he met
in bars. 1 In later conversations, husband also confessed to at
least "three or four" of the affairs to Nancy Pcsolyar, a
neighbor, and also admitted his infidelity to Rev. Ronald
Melton.
In addition, husband told wife that he had never used a
condom or any other type of protection to guard against the
transmission of sexually-transmitted diseases to wife, with whom
he was also sexually active during the period of his adulteries.
1 In his appeal brief, husband admits that "the parties had a conversation in which Mr. Shaffer informed his wife that he had had sexual intercourse with other women since 1993."
- 3 - "Totally numb" upon hearing this news, wife felt like her
"entire life ha[d] been turned upside down." She particularly
feared for her health, given the risk of contracting a sexually
transmitted disease from her promiscuous husband. Wife stood by
"in a state of shock" as husband then packed his belongings and
moved out of the home.
A few months later, husband asked if wife would forgive him
and consent to him moving back into the marital home. Wife
asked him directly if he would "give up his adulterous
lifestyle." Husband said he would not. Under such
circumstances, wife testified, she would not agree to condone
husband's infidelities and to resume cohabitation with him.
During the period of separation, husband continued to
display aberrant behavior. He broke into wife's car while she
was at a restaurant and, after initially denying that he did so,
admitted tearing pages out of wife's journals left in her car.
He also entered the home while wife was away and placed items of
lingerie on wife's bed —— which wife interpreted as a mocking
and offensive gesture.
Husband also treated his young children poorly. "Many
times," wife testified, he yelled at her in front of the
children, including one episode where he called her "an F'ing B"
in their presence. In addition, despite a court order
forbidding him from doing so, husband exposed his young
- 4 - daughters to his girlfriend —— resulting in a contempt of court
conviction. And on two occasions, husband forfeited his
opportunity for visitation with his daughters so he could
vacation with a paramour.
The trial court awarded wife a divorce based on husband's
cruelty and constructive desertion. The chancellor also awarded
wife sole legal and physical custody of the children, spousal
support at $2,000 a month, and child support at $824.52 a month.
In the equitable distribution award, the chancellor transferred
the marital home to wife and allowed husband to retain
substantial funds within his retirement accounts. Husband filed
forty-nine exceptions to the final decree.
II.
Rule 5A:20(e) requires the appellant's brief to include,
among other things, the "principles of law, the argument, and
the authorities relating to each question presented."
Statements unsupported by "argument, authority, or citations to
the record" do not merit appellate consideration. Thomas v.
Commonwealth, 38 Va. App. 319, 321 n.1, 563 S.E.2d 406, 407 n.1
(2002); Dickerson v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d
230, 234 (2001); Bennett v. Commonwealth, 35 Va. App. 442, 452,
546 S.E.2d 209, 213 (2001); Buchanan v. Buchanan, 14 Va. App.
53, 56, 415 S.E.2d 237, 239 (1992).
- 5 - Husband asserts on appeal twenty-nine assignments of error.
On questions 6, 9, 10, 11, 12, 13, 14, 19, 20, 21, 22, 23, 24,
25, 26, 27, and 28, husband's brief provides inadequate citation
either to the record or to supporting principles of law.
Instead, on these points, husband's brief addresses the subject
in a cursory, perfunctory manner. Rule 5A:20(e) precludes our
review of these issues in the face of such an inadequate attempt
at appellate advocacy.
III.
A.
On the issues that remain, we begin our analysis by
restating basic principles governing the standard of appellate
review —— a subject that intersects nearly every argument
husband makes in this appeal.
"Under Code § 8.01-680, a factual determination cannot be
reversed on appeal unless 'plainly wrong or without evidence to
support it.'" Congdon, 40 Va. App. at 261, 578 S.E.2d at 836
(citation omitted); Torian v. Torian, 38 Va. App. 167, 181, 562
S.E.2d 355, 362 (2002). This standard applies to a trial
court's decision regarding divorce, Hughes v. Hughes, 33
Va. App. 141, 145-46, 531 S.E.2d 645, 647 (2000), child custody
and visitation, Albert v. Albert, 38 Va. App. 284, 294, 563
S.E.2d 389, 394 (2002), spousal support, Congdon, 40 Va. App. at
261, 578 S.E.2d at 836, child support, Joynes v. Payne, 36
- 6 - Va. App. 401, 424, 551 S.E.2d 10, 21 (2001), equitable
distribution, Thomas v. Thomas, 40 Va. App. 639, 644, 580 S.E.2d
503, 505 (2003), and attorney's fees, Northcutt v. Northcutt, 39
Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002). Under this
standard, we do not "retry the facts or substitute our view of
the facts for those of the trial court." Congdon, 40 Va. App.
at 266, 578 S.E.2d at 838 (citation omitted).
Moreover, we will overturn a decision committed to the
chancellor's sound discretion only upon a showing that she
abused that discretion. An abuse of discretion can be found if
the trial court uses "an improper legal standard in exercising
its discretionary function" or fails "to consider the statutory
factors required to be part of the decisionmaking process." Id.
(citation and internal quotation marks omitted).
B.
Husband challenges the grounds upon which the chancellor
granted wife a final divorce. The trial court erred, husband
argues, by finding him guilty of cruelty and constructive
desertion and by not finding wife guilty of desertion in
"barring Mr. Shaffer's return to the residence" after he decided
he wanted to come home. In the alternative, husband contends
that the trial court should have granted the divorce on no-fault
grounds pursuant to Code § 20-91(9)(a). We disagree with each
of these assertions.
- 7 - Cruelty consists of "anything that tends to bodily harm and
thus renders cohabitation unsafe" or "involves danger of life,
limb or health." Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342
S.E.2d 658, 662 (1986) (quoting Latham v. Latham, 71 Va. (30
Gratt.) 307, 320-22 (1878)). Constructive desertion occurs
"where the conduct of the other spouse has caused conditions in
the marital home to be intolerable" to the point that the
affected spouse has to leave. Gottlieb v. Gottlieb, 19 Va. App.
77, 82, 448 S.E.2d 666, 669 (1994) (quoting Kerr v. Kerr, 6
Va. App. 620, 623, 371 S.E.2d 30, 32 (1988)).
The chancellor did not plainly err in finding husband
guilty of cruelty and constructive desertion. By engaging in
sexual intercourse with multiple paramours without any form of
protection against sexually transmitted diseases, and then
continuing to have sex with his unsuspecting wife, husband
rendered "cohabitation unsafe" for cruelty purposes, Zinkhan, 2
Va. App. at 208, 342 S.E.2d at 662 (citation omitted), and
palpably "intolerable" for constructive desertion purposes,
Gottlieb, 19 Va. App. at 82, 448 S.E.2d at 669 (citation
omitted). To deny wife a divorce on this ground would be
tantamount to placing upon her the legal duty to remain married
(subject to conjugal obligations) to a man who, through numerous
adulteries, put her at risk of sexually-contracted diseases and
whose behavior —— based on his own admission —— strongly
- 8 - suggested he would continue to do so in the future. Knowingly
placing a spouse at risk of an HIV infection or some other
sexual contagion is a cruelty the law does not require the
innocent spouse to tolerate.
We also find meritless husband's assertion that his sexual
infidelities "were not proven sufficiently by the evidence."
Under oath before the commissioner, husband admitted confessing
to wife that he "had sexual relations with other women during
[the] marriage." Wife provided further details about her
husband's confession, including that they had been going on "for
a long time" and with many sexual partners. Husband's
admissions to his neighbor and his pastor likewise corroborate
wife's testimony. The evidence, therefore, provides ample
support for the predicate finding of adultery underlying the
chancellor's cruelty and constructive desertion holding. See,
e.g., Watts v. Watts, 40 Va. App. 685, 689-90, 581 S.E.2d 224,
226-27 (2003) (surveying cases addressing sufficiency of the
evidence proving adultery). 2
2 We also reject husband's assertion that his various admissions used to support the cruelty and constructive desertion grounds were not corroborated by other evidence in the case. Husband's contention "fails to distinguish evidence sufficient to prove adultery where the offending spouse denies it from evidence sufficient to corroborate an admission of adultery under oath by the offending spouse." Pommerenke v. Pommerenke, 7 Va. App. 241, 245, 372 S.E.2d 630, 632 (1988). Where, as here, an admission under oath occurs, only "slight corroboration of adultery" is necessary. Id. Husband's admissions to Nancy Pcsolyar of "three or four" adulterous
- 9 - For similar reasons, the chancellor did not err in refusing
to find wife guilty of desertion because she refused husband's
request for cohabitation after he left the marital home. Actual
desertion requires both an "actual breaking off of the marital
cohabitation" and an "intent to desert in the mind of the
offender." Gottlieb, 19 Va. App. at 83, 448 S.E.2d at 670.
Wife's refusal to continue cohabitation with husband after her
discovery of his conduct —— coupled with her credible belief
that he would not change and, to be sure, his announced refusal
to change —— does not constitute desertion. That is
particularly true given the chancellor's finding of cruelty and
constructive desertion on husband's part. See, e.g., Seemann v.
Seemann, 233 Va. 290, 296, 355 S.E.2d 884, 888 (1987) ("Even if
[husband's] conduct did not amount to cruelty, the trial court
properly could conclude that his conduct was the 'provoking
cause' for her leaving the home."); Gottlieb, 19 Va. App. at 83,
448 S.E.2d at 670 ("Wife's evidence proved that she left the
affairs meets this slight burden. Moreover, every "element or essential charge need not be corroborated, nor must the corroborating evidence, standing alone, prove the grounds for divorce, but corroboration must give sufficient strength to the complainant's testimony to be clearly worthy of belief." Bchara v. Bchara, 38 Va. App. 302, 312, 563 S.E.2d 398, 403 (2002) (quoting Emrich v. Emrich, 9 Va. App. 288, 296, 387 S.E.2d 274, 278 (1989)).
- 10 - marital home because she reasonably believed her health was
endangered by remaining, and she unsuccessfully tried less
drastic measures to eliminate the danger."). Reasons to refuse
cohabitation "other than an intent to desert may justify
discontinuance of the relationship without giving rise to
grounds for divorce." D'Auria v. D'Auria, 1 Va. App. 455, 459,
340 S.E.2d 164, 166 (1986). 3
We also disagree that husband had a right to a divorce on
no-fault grounds. In cases "where a court has a choice between
a cause of action for a 'no fault' divorce and a cause seeking
to fix fault," nothing in Virginia law states that "the cause
without fault to either party should be chosen." Robertson v.
Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43 (1975). Virginia
law does not require courts to "give precedence" to no-fault
grounds over fault grounds. Id. Instead, when a trial court
faces "dual or multiple grounds for divorce," it can exercise
its own discretion in selecting the ground upon which to grant
the divorce. Sargent v. Sargent, 20 Va. App. 694, 707, 460
S.E.2d 596, 602 (1995). In our case, therefore, while the
3 See, e.g., Breschel v. Breschel, 221 Va. 208, 212, 269 S.E.2d 363, 366 (1980) (concluding that wife who left because she reasonably believed continued cohabitation endangered her health was free from legal fault); Capps v. Capps, 216 Va. 382, 385, 219 S.E.2d 898, 900 (1975) (recognizing that wife, who left the marital home after a single act of physical abuse, was free from legal fault even though husband's abuse did not amount to cruelty as a fault ground).
- 11 - chancellor could have granted a divorce based on a one-year
separation, see Bchara v. Bchara, 38 Va. App. 302, 310, 563
S.E.2d 398, 402 (2002), she also had the discretion not to.
C.
Husband next challenges the chancellor's decision to award
sole legal custody to wife. Finding that the trial court
properly exercised its statutory authority, we affirm.
Code § 20-124.3 lists various factors the trial court must
consider in making custody and visitation decisions. See
generally Joynes, 36 Va. App. at 416, 551 S.E.2d at 17. Though
the trial court must consider each factor, "it is not required
to quantify or elaborate exactly what weight or consideration it
has given to each of the statutory factors." Sullivan v. Knick,
38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002) (quoting
Sargent, 20 Va. App. at 702, 460 S.E.2d at 599). So long as the
chancellor considers the statutory factors, we will not reverse
her decision absent an abuse of discretion. Id.
In this case, the chancellor found that husband displayed
an "inability to accurately assess the emotional needs of the
children." After announcing to the children that "he did not
want to be married to their mother any more," husband did little
to address their emotionally "hysterical" reaction. He only
made things worse by calling their mother a "F'ing B" in their
presence, declining visitation with them so he could vacation
- 12 - with his latest paramour, and contemptuously violating a court
order forbidding him from exposing his children to his
paramours. Given the wife's history of faithful parenting and
husband's history of placing his own interests ahead of his
children's, the chancellor did not abuse her discretion by
finding that the best interests of the children favored an award
of sole legal custody to wife.
D.
Husband's disagreement with the trial court's decision to
award spousal support can be grouped into two categories. 4 The
first involves a challenge to the trial court's "assessment and
application of factors pursuant to § 20-107.1 in awarding
complainant spousal support." The second challenges the trial
court's refusal, at husband's insistence, to impute income to
wife on the ground that she was voluntarily underemployed. We
find no merit in either contention.
4 Husband waived arguments regarding spousal support asserting that the trial court erred: (i) by "allowing the introduction of opinion evidence of Larry Stone," who testified regarding wife's earning potential in her business; (ii) in its "findings as to complainant's income"; (iii) by not "awarding spousal support for a limited term of years"; (iv) by not "adequately considering the ability or inability" of husband to pay the award; (v) by "failing to note the unnecessary and inflated nature" of wife's expenditures; (vi) for "not modifying the spousal support and child support awards after the court significantly revised" wife's income; and (vii) by allowing its error in spousal support determination to carry over into its child support determination. See Rule 5A:20(e).
- 13 - Following the dissolution of a marriage, the trial court
"may make such further decree as it shall deem expedient
concerning the maintenance and support of the spouses." Code
§ 20-107.1(A). Crafting an appropriate award requires the
chancellor to consider the factors outlined in Code
§ 20-107.1(E). See Wright v. Wright, 38 Va. App. 394, 404, 564
S.E.2d 702, 707 (2002). "Whether and how much spousal support
will be awarded is a matter of discretion for the trial court."
Congdon, 40 Va. App. at 262, 578 S.E.2d at 836 (quoting
Northcutt, 39 Va. App. at 196, 571 S.E.2d at 914). Thus, "in
fixing spousal support, a trial court has broad discretion which
should not be interfered with by an appellate court unless it is
clear that some injustice has been done." Joynes, 36 Va. App.
at 423, 551 S.E.2d at 21 (citation omitted).
In this case, the evidence showed a disparity in earnings
between the wife and husband. In addition, wife's going-forward
expenses now include the mortgage and other financial
responsibilities of home ownership, while husband's on-going
living expenses are being defrayed by his live-in girlfriend.
The chancellor also took into account wife's legitimate interest
in the "high standard of living" she had enjoyed during the
marriage. Each of these findings corresponds to various
statutory factors listed in Code § 20-107.1. We find no abuse
of discretion in this reasoning.
- 14 - We also disagree that the chancellor erred in not imputing
income to wife because of her alleged underemployment.
Imputation of income requires proof that "the other parent was
voluntarily foregoing more gainful employment, either by
producing evidence of a higher-paying former job or by showing
that more lucrative work was currently available." Mir v. Mir,
39 Va. App. 119, 128, 571 S.E.2d 299, 304 (2002). The burden of
proof rests on the party asserting the imputation. Albert, 38
Va. App. at 295, 563 S.E.2d at 395. "The evidence must be
sufficient to 'enable the trial judge reasonably to project what
amount could be anticipated.'" Id. (quoting Hur v. Va. Dept. of
Soc. Servs. Div. of Child Support Enforcement ex rel. Klopp, 13
Va. App. 54, 61, 409 S.E.2d 454, 459 (1991)).
The chancellor did not plainly err in finding that husband
failed to carry the burden of persuasion on this issue. The
chancellor found husband's evidence speculative and accepted
wife's testimony that her business, a portrait studio, faced a
potentially bright future. Nor did any evidence refute wife's
belief that her flexible self-employment allowed her to
"schedule her business appointments around her children's
schedules" and thus provide much needed "regularity and
stability" to her still-emotionally fragile children. For these
reasons, the chancellor did not plainly err in finding that
husband did not carry his burden of proof on this issue.
- 15 - E.
Husband also argues that the trial court "erred in the
assessment and application of factors pursuant to § 20-108.1 in
awarding complainant $824.52 in monthly child support." 5 He
again argues that the chancellor erred by not imputing income to
wife, a contention we reject. Beyond that, husband makes a
generalized attack on the calculation of child support. We
reject husband's argument and find the award consistent with
Code § 20-108.1's statutory factors and the overarching policy
of reinforcing the "best interest of the child or children."
Shoup v. Shoup, 37 Va. App. 240, 249, 556 S.E.2d 783, 787
(2001); see also Mir, 39 Va. App. at 130, 571 S.E.2d at 305
(recognizing the rebuttable presumption that the court's award
"is the correct amount of child support to be awarded").
F.
Husband raises two questions concerning the trial court's
equitable distribution determination. 6 First, he argues that the
5 Rule 5A:20(e) bars husband's argument that the trial court "erred and was plainly wrong in the award of life insurance coverage to the children." 6 Once again, husband's failure to comply with Rule 5A:20(e) bars his arguments that the trial court erred by (i) "not requiring the complainant to refinance the indebtedness on the marital residence within a specified period of time"; (ii) in accepting wife's proposed division of the household furnishings over husband's proposed division; (iii) in its valuation of his Pfizer IRA; (iv) in its valuation of his FBI retirement account; (v) in its "findings as to the source of funds in the marital
- 16 - chancellor misapplied the statutory factors in Code
§ 20-107.3(E) by considering his marital fault without first
finding whether it had a pecuniary impact on the value of
marital assets. Second, husband contends that the chancellor
abused her discretion in awarding wife the marital home. We
disagree with both assertions.
Husband's first argument overlooks settled law. As we
recently reaffirmed, consideration of "nonmonetary contributions
to the well being of the family under Code § 20-107.3(E)(1)
requires no showing of an adverse economic impact. In that
context, the 'well-being' of the family relates to the effect on
the family's emotional welfare and condition." Watts v. Watts,
40 Va. App. 685, 699, 581 S.E.2d 224, 231 (2003); see also
Barker v. Barker, 27 Va. App. 519, 540, 500 S.E.2d 240, 250
(1998); O’Loughlin v. O’Loughlin, 20 Va. App. 522, 528, 458
S.E.2d 323, 326 (1995). 7 Nor does the statute require a
pecuniary impact on marital property when considering how
savings account" and its subsequent division; (vi) in finding that wife did not dissipate "assets of the marital estate"; and, (vii) in "designating complainant irrevocable beneficiary to all or a portion of defendant's survivor annuity plan." 7 In this case, the chancellor predicated the divorce on husband's cruelty and constructive desertion. For equitable distribution purposes, however, the trial court may consider facts demonstrating marital fault outside the parameters of the fault ground for the a vinculo divorce. See Cousins v. Cousins, 5 Va. App. 156, 158-59, 360 S.E.2d 882, 884 (1987); Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 41 (1986); Bentz v. Bentz, 2 Va. App. 486, 488, 345 S.E.2d 773, 774 (1986).
- 17 - marital fault has affected the "mental condition" of a spouse
under Code § 20-107.3(E)(4). Watts, 40 Va. App. at 698, 581
S.E.2d at 231; see also Smith v. Smith, 18 Va. App. 427, 431,
444 S.E.2d 269, 273 (1994).
The evidence before the chancellor demonstrated an acutely
negative impact of husband's conduct on the "well-being of the
family," Code § 20-107.3(E)(1), and on the "mental condition" of
his wife, Code § 20-107.3(E)(4). For all intents and purposes,
the "well-being" of the family ceased to exist as a direct
consequence of husband's serial adulterous relationships and his
announced desire to be done with the marriage. Describing this
conduct as a negative non-monetary contribution to the
well-being of the family is, at best, euphemistic.
In addition, the chancellor found that wife "began to
suffer physically and emotionally." The husband's conduct left
his wife "totally numb," "emotionally bankrupt," and in a "state
of shock" and "total devastation." She stayed in counseling and
under anti-anxiety medication up until the time of trial. The
children also "exhibited physical and emotional problems
attributable to the breakup of the family." Both required
extensive counseling. One suffered from "fears and anxiety"
severe enough to cause sleeping disorders. The other
experienced elevated "stress" and "fainting spells" at school
requiring treatment at a local hospital emergency room.
- 18 - In contrast, the chancellor found compelling wife's
positive non-monetary contributions to the well-being of the
family. As the chancellor noted, wife "sacrificed her career
for the well being of the family" by ceasing to work "outside of
the home" shortly before the birth of her first child. She
"became the primary caretaker of the children." Wife's
recognized "abilities as a homemaker" greatly enhanced the value
of each of the parties' three marital residences. And much of
husband's financial success, the chancellor found, was
positively influenced by wife's faithful support of his
professional endeavors.
The chancellor, therefore, did not misapply the equitable
distribution factors in Code § 20-107.3(E). The evidence amply
supports the chancellor's finding that husband's fault was
severely detrimental to the "well-being of the family," Code
§ 20-107.3(E)(1), and the "mental condition" of the parties,
Code § 20-107.3(E)(4).
Husband's second argument, that the chancellor erred in
awarding the marital home to wife, also fails. Equitable
distribution does not mean equal distribution. In adopting the
equitable distribution model, the General Assembly "expressly
rejected any presumption in favor of an equal distribution of
marital property." Papuchis v. Papuchis, 2 Va. App. 130, 132,
341 S.E.2d 829, 831 (1986) (quoting Report of Joint Subcommittee
- 19 - Studying Code § 20-107, House Doc. No. 21, at 8 (1982)).
"Instead, a trial court considers the factors in Code
§ 20-107.3, to make a decision regarding division of marital
property." Shackleford v. Shackleford, 39 Va. App. 201, 211,
571 S.E.2d 917, 922 (2002).
In this case, the chancellor considered each of the
statutory factors, including the contributions (both positive
and negative) to the "well-being of the family," Code
§ 20-107.3(E)(1), and the "mental condition of the parties,"
Code § 20-107.3(E)(4). The evidence showed that the children
had lived in the home with their mother and that she operated
her business from this location. The factual predicates for the
chancellor's decision are valid, and her exercise of discretion
sound. We thus find no error in this aspect of the equitable
distribution award. 8
G.
We also find no merit in husband's challenge to the
chancellor's award of wife's attorney's fees against him.
Whether to award attorney's fees "is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
8 Husband waived his final two equitable distribution arguments, which claimed that the court erred by (i) "denying the direct examination of complainant by defendant in his case-in-chief"; and (ii) not factoring the attorney's fee into his assets and liabilities when determining an appropriate level of child and spousal support. See Rule 5A:20(e).
- 20 - only for an abuse of discretion." Northcutt, 39 Va. App. at
199-200, 571 S.E.2d at 916 (quoting Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987)) (internal quotation marks
omitted). Because each case presents its own unique set of
equities, principles of appellate review steer clear of
inflexible rules and focus instead on "reasonableness under all
the circumstances." Joynes, 36 Va. App. at 429, 551 S.E.2d at
24.
The chancellor awarded a portion of wife's attorney's fees
($15,000) against husband. 9 We find this decision well within
the trial court's discretion for two reasons. First, as the
chancellor found, the evidence lays the blame for the demise of
this marriage squarely on husband's shoulders. It is entirely
fair that he, as the party causing the need for this litigation,
should contribute toward the transactional cost of the legal
proceedings. Second, the record also reflects that husband's
strategy of contesting nearly every point, irrespective of the
objective merits of his position, unnecessarily increased the
cost of this litigation. These observations amply justify the
chancellor's decision to require husband to pay $15,000 of
wife's attorney's fees.
9 Husband includes his challenge to the fee award within a question presented numbered "28 & 29." Because the argument appears in the second half of the dual-question, for clarity sake, we will treat the attorney's fee issue as question 29.
- 21 - H.
Finally, we turn to the question of attorney's fees on
appeal. "The appellate court has the opportunity to view the
record in its entirety and determine whether the appeal is
frivolous or whether other reasons exist for requiring
additional payment." O'Loughlin v. O'Loughlin, 23 Va. App. 690,
695, 479 S.E.2d 98, 100 (1996). From our unique vantage point,
we can examine the arguments on appeal not merely in the
abstract, but also as they fit within the course of conduct
shown in the trial court.
Wife seeks fees in this case, arguing that many of
husband's assertions on appeal are "clearly without foundation
in law or fact." We agree. Husband raised twenty-nine
assignments of error —— all of which he either failed to brief
adequately or failed to analyze properly under the governing
standard of review. The substance of his arguments, as well as
the manner of their presentation, fall well below our
expectations. See Gottlieb, 19 Va. App. at 95, 448 S.E.2d at
677 (awarding appellate fees where "[m]any of husband's
questions presented or assignments of error were not supported
by the law or the evidence"). 10 We view husband's appellate
10 See also Marks v. Marks, 36 Va. App. 216, 231, 548 S.E.2d 919, 926 (2001) (awarding "reasonable expenses incurred in defending this unjustified appeal"); Taylor v. Taylor, 27 Va. App. 209, 218, 497 S.E.2d 916, 920 (1998) (remanding to
- 22 - arguments as little more than a continuation of the performance
that led to the award of fees against him in the trial court.
For these reasons, we award wife all attorney's fees
incurred on appeal and remand to the trial court the task of
ensuring that the amount requested is reasonable. 11
IV.
In sum, we affirm the chancellor's decisions on the grounds
of divorce, spousal support, child support, equitable
distribution, and liability for attorney's fees in the trial
court. We grant wife's request for attorney's fees on appeal
and remand this matter to the chancellor to calculate the
amount.
Affirmed and remanded.
trial court calculation of "counsel fees incurred in this appeal"); Johnson v. Johnson, 26 Va. App. 135, 154, 493 S.E.2d 668, 677 (1997) (remanding for award of "counsel fees incurred by father in this appeal"); Via v. Via, 14 Va. App. 868, 873, 419 S.E.2d 431, 434 (1992) (ordering trial court to "enter an appropriate award of attorney's fees for services rendered to [wife] in the trial court, as well as on appeal"). 11 In his reply brief on appeal, husband seeks an award of attorney's fees against wife. We deny that request.
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