Howard Mack Broadnax v. Doris Ann Broadnax

• Court: Court of Appeals of Virginia
• Decided: May 6, 1997
• Docket: 2749963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

HOWARD MACK BROADNAX MEMORANDUM OPINION * v. Record No. 2749-96-3 PER CURIAM MAY 6, 1997 DORIS ANN BROADNAX

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY William N. Alexander, II, Judge

(J. Grady Monday; Monday & Monday, on brief), for appellant. (Robert T. Vaughan, Jr.; Daniel, Vaughan, Medley & Smitherman, on brief), for appellee.

Howard Mack Broadnax (husband) appeals the decision of the

circuit court equitably dividing the parties' marital property

and awarding spousal support to Doris Ann Broadnax (wife).

Husband contends the trial court erred by (1) finding wife owed

no additional payment to husband for his share of the parties'

marital property; and (2) awarding wife spousal support. 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. Equitable Distribution

"Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to * Pursuant to Code § 17-116.010 this opinion is not designated for publication. support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990). "Unless it appears from the record that

the trial judge has not considered or has misapplied one of the

statutory mandates, this Court will not reverse on appeal."

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989).

The parties have lived separate and apart since 1988. The

parties agreed that the total net value of the marital property

was $21,382.46. Husband possessed property worth $5,210. Wife

possessed property worth $16,172.46. During the parties' separation, the parties encumbered the

marital residence with a $5,000 second deed of trust. Husband

testified he used $168 of this money for himself, purchased a

trailer for $2,000, and used the remaining $2,832 to make

mortgage payments on the marital home. The parties' son

testified that he knew his father made mortgage payments.

However, wife testified that husband did not make mortgage

payments with the $2,832 balance but spent the money for his

personal benefit.

The trial court believed wife's testimony. "Where, as here,

the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless

plainly wrong or without evidence to support it." Martin v.

Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20,

348 S.E.2d 13, 16 (1986). The trial court, as the finder of

2 fact, was entitled to determine "the weight which should be given

to evidence and whether the testimony of a witness is credible."

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601 (1986). The trial court found that husband had already

received the benefit of $5,000 of marital assets and that, as a

result, wife was not required to make an additional transfer of

marital property to husband. The court also assigned to wife the

majority of the outstanding marital debt. The court's decision

was based upon its credibility determinations. Therefore, the

ruling will not be reversed on appeal. Spousal Support

The determination whether a spouse is entitled to support

and, if so, how much, is a matter within the discretion of the

trial court and will not be disturbed on appeal unless it is

clear that some injustice has been done. See Dukelow v. Dukelow,

2 Va. App. 21, 27, 341 S.E.2d 208, 211 (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) (citations omitted).

The trial court considered the statutory factors, including

the parties' respective expenses. Husband earned $9.30 per hour,

working approximately forty hours per week, with monthly expenses

of $968, which included $210 in spousal support. Wife earned

3 $6.10 per hour working forty hours per week, with monthly

expenses of $1,718.22. Although wife worked additional hours of

overtime in the calendar year up to the time of trial and earned

$13,477, no evidence proved the overtime was a permanent feature

of her employment.

Husband contends that wife's monthly mortgage expense of

$430 is unreasonably high due in part to the twenty-one percent

interest on the second deed of trust on the marital home. He

also alleges, without specificity, that wife's remaining expenses

appeared to be excessive. However, even if wife eliminated her

mortgage payments, her net monthly income of $671 would fall far

short of her expenses. Therefore, husband has not demonstrated

any abuse of discretion in the court's award of $250 in monthly

spousal support. Accordingly, the decision of the circuit court is summarily

affirmed.