Robert Lee Elliott v. Mary Ellen Bailey Elliott

• Court: Court of Appeals of Virginia
• Decided: March 1, 2022
• Docket: 0754214
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, Lorish and Senior Judge Annunziata UNPUBLISHED

Argued by videoconference

ROBERT LEE ELLIOTT MEMORANDUM OPINION* BY v. Record No. 0754-21-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 1, 2022 MARY ELLEN BAILEY ELLIOTT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge

Demian J. McGarry (Curran Moher Weis, P.C., on brief), for appellant.

Juli M. Porto (Blankingship & Keith, P.C., on brief), for appellee.

Robert Lee Elliott (husband) appeals the circuit court’s final order of divorce awarding

Mary Ellen Bailey Elliott (wife) $2,000 per month in spousal support. Husband argues that the

circuit court erred by awarding wife spousal support because wife introduced “no evidence of her

need.” He further argues that the court erred in applying the statutory factors governing support

because wife provided “no evidence of obligations, needs, or financial resources as required under

Code § 20-107.1(E)(1).” For the reasons stated below, we affirm the circuit court’s judgment.

BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App.

255, 258 (2003)).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The parties met in 1998 while attending George Mason University. In 1999, wife graduated

with a degree in psychology, and husband was commissioned in the United States Army. The

parties married in 2001 and had two children, born in 2010 and 2011. In 2003, the Army stationed

husband in Germany. Wife moved to Germany with husband, where she worked as a substitute

teacher and with the Army Communications Service. In 2006, 2008, and 2011, the Army relocated

husband to San Antonio, Texas, El Paso, Texas, and Fort Leavenworth, Kansas, respectively. In

2013, the Army relocated husband to Springfield, Virginia, where the parties presently live.

Husband served over twenty years in the Army before retiring in 2020. Wife struggled to obtain

permanent employment or complete a master’s degree program during their marriage because of

their frequent moves, which delayed her career and eliminated the possibility for retirement

pensions.

At the beginning of the marriage, wife read “spouse’s books” provided by husband to

familiarize herself with the military. She volunteered with Army community service, attended

classes in Army family team building, and held family readiness group leader positions. Generally,

wife maintained the home and fully supported husband’s career. She managed the home’s finances,

eliminating the parties’ pre-marital debts and leaving them debt free. She also participated in

financial counseling for soldiers. Her contributions to the family’s finances through sweat equity

included the work she did to paint the house and refinish and build furniture. The parties enjoyed a

comfortable standard of living and took expensive trips to places such as Grand Cayman and

Europe. They also regularly paid off car loans early and maintained a minimum $10,000 checking

account balance. In addition, the parties saved between $3,000 to $5,000 per month and contributed

the maximum amount to Roth IRAs.

In 2019, husband received a pacemaker and obtained a 100% “disability rating,” 60% of

which was from post-traumatic stress disorder and a traumatic brain injury. After obtaining the

-2- disability rating, husband left the marriage and told wife he had done “everything to ensure [she]

would never see a penny of [his] retirement.” Husband elected to receive a lower amount of

Combat Related Special Compensation as his retirement, which prevented wife from receiving any

portion of it in the divorce.

In 2019, wife worked at Fort Belvoir Community Hospital, earning approximately $97,848

per year, but she was terminated after she repeatedly accessed husband’s private health information

without permission. Husband filed a HIPAA complaint with wife’s employer shortly after wife

filed for divorce and for pendente lite support. At the time of the support hearing, wife worked as a

licensed clinical social worker earning $74,000 per year. Husband worked for a defense contractor;

his salary and military retirement benefits totaled approximately $240,000 per year.

Wife sought $2,500 per month in spousal support. She testified that although her budget

had not suffered a deficit since she and husband separated, she had been unable to make any

contributions to her Roth IRA or savings. Wife had prepared an income and expense statement for

trial but testified that it was “bogus” because it did not account for certain expenses, including state

taxes, a car payment, liquid savings, medical expenses, family pet costs, and gymnastics fees for the

parties’ children. Wife testified that she needed support from husband “to make ends meet” and

maintain the “standard of living” she had during the marriage. Wife did not introduce the income

and expense statement into evidence during her case-in-chief but asked the court to reopen the

record and admit the exhibit. The circuit court denied wife’s request.

After considering the factors enumerated in Code § 20-107.1, the court awarded wife $2,000

per month in spousal support. The circuit court based the award primarily on the obligations, needs,

and financial resources of the parties, the standard of living during the marriage, the provisions

made regarding marital property, the earning capacity of the parties, and the decisions regarding

employment and careers made by the parties during the marriage. The court found that wife earned

-3- approximately $74,000 per year but imputed her prior income of $97,848. The circuit court found

that husband earned $236,000 per year, nearly two and a half times wife’s imputed income, and that

the parties had lived comfortably during the marriage. The court emphasized that wife “made the

classic military wife decision not to work outside the home, but rather to support her husband’s

military career.” The circuit court also considered that wife would not receive any of her portion of

husband’s military retirement.

The circuit court rejected husband’s argument that wife failed to “establish need” because

she did not introduce her income and expense statement into evidence. Instead, the court found that

an income and expense statement was not the “exclusive method” of proving need and credited

wife’s testimony concerning her finances since the parties separated. The circuit court found that

wife testified that she desired to maintain the marital standard of living and that husband had the

ability to pay. The court concluded that because wife testified regarding need, husband’s argument

regarding the income and expense statement affected the weight of wife’s evidence, not whether

any evidence of need was introduced. Thus, the circuit court specifically found that “wife testified

as to her need . . . she established need.” This appeal follows.

ANALYSIS

Each of husband’s assignments of error challenges the circuit court’s award of spousal

support to wife on the ground that she failed to establish “need.” First, he argues that the circuit

court erred by awarding wife support because she “introduced no evidence of her need.” Next, he

asserts that the court erred in applying Code § 20-107.1’s factors because wife “provided no

evidence of the obligations, needs or financial resources of the parties.” Finally, he maintains that

the circuit court erred because the evidence established that she “had no need for spousal support.”

Our review of the circuit court’s spousal support award is governed by familiar principles.

“The trial court has ‘“broad discretion in setting spousal support and its determination will not be

-4- disturbed except for a clear abuse of discretion.”’” Wyatt v. Wyatt, 70 Va. App. 716, 719 (2019)

(quoting Giraldi v. Giraldi, 64 Va. App. 676, 681 (2015)). That discretion extends to “the ‘nature,

amount and duration’ of the award.” Robinson v. Robinson, 54 Va. App. 87, 91 (2009) (quoting

Code § 20-107.1(E)). Under the abuse of discretion standard, a court has a “range of choice,” and

“its decision will not be disturbed as long as it stays within that range and is not influenced by any

mistake of law.” Galiotos v. Galiotos, 300 Va. 1, 10 (2021) (quoting Landrum v. Chippenham and

Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)). “Thus, only when reasonable jurists could

not differ can we say an abuse of discretion has occurred.” Id. (quoting Sauder v. Ferguson, 289

Va. 449, 459 (2015)).

In determining an appropriate spousal support award, a trial court “must consider all the

factors enumerated in Code § 20-107.1(E).” Robinson, 54 Va. App. at 91 (quoting Fadness v.

Fadness, 52 Va. App. 833, 846 (2008)). Relevant here, those factors include the “obligations, needs

and financial resources of the parties,” “the standard of living established during the marriage,” “the

duration of the marriage,” the “contributions, monetary and nonmonetary, of each party to the

well-being of the family,” and the “provisions made with regard to the marital property.” Code

§ 20-107.1(E). Moreover, it is well-established that “[a] party seeking spousal support bears the

burden of proving all facts necessary for an award, including evidence of financial need.”

Robbins v. Robbins, 48 Va. App. 466, 481 (2006). Although “a trial judge must consider all the

factors” enumerated in Code § 20-107.1 when determining an appropriate amount of spousal

support award, “the judge is not ‘required to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors.’” Pilati v. Pilati, 59 Va. App. 176, 183

(2011) (quoting Duva v. Duva, 55 Va. App. 286, 300 (2009)). Instead, “[w]hat weight, if any, to

assign to [each] factor in the overall decision lies within the trial court’s sound discretion.” Id.

(alteration in original) (quoting Robbins, 48 Va. App. at 481).

-5- Upon review of the record, we conclude that the evidence established wife’s need for

spousal support. Notwithstanding wife’s failure to submit an income and expense statement, the

circuit court correctly held that such evidence was not the “exclusive method” available to wife

to establish need. Indeed, nothing in Code § 20-107.1(E) or our case law dictates how a party

must demonstrate need for support. See Robbins, 48 Va. App. at 484 n.10 (holding that Code

§ 20-107.1(E) “requires only the factfinder to ‘consider’ the estimated needs of the parties”

(emphasis added)).1 Here, the evidence established that, during the marriage, the parties saved

between $3,000 and $5,000 per month and contributed the maximum amount allowed within tax

limits to the IRAs, up to $450 per month. Wife testified, however, that since the parties

separated, she had been unable to make any contributions to retirement accounts or savings.

Further when all of her expenses were accounted for—including taxes, a car payment, medical

expenses, family pet costs, and gymnastics fees for the children—she needed support from

husband “to make ends meet” and maintain the “standard of living” she had enjoyed during the

marriage.

Husband criticizes wife’s testimony as “speculative” because she failed to provide exact

figures for her expenses. But Code § 20-107.1(E) only “requires . . . the factfinder to ‘consider’

the estimated needs of the parties.” Id. (emphasis added). In addition, it is well-established that

“[t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the

fact finder who has the opportunity to see and hear that evidence as it is presented.” Koons v.

Crane, 72 Va. App. 720, 741 (2021) (quoting McKee v. McKee, 52 Va. App. 482, 492 (2008) (en

banc) (alteration in original)). After weighing all the evidence in this case, the circuit court

credited wife’s testimony concerning her post-separation finances and found that she had

1 Husband concedes that there are “other means to establish need” beyond an income and expense sheet. -6- established need. Husband points to nothing in wife’s testimony that was so unworthy of belief

as to render it inherently incredible as a matter of law. Thus, we may not disturb the circuit

court’s credibility determination on appeal. Id.

In addition, the circuit court made numerous findings regarding the other Code

§ 20-107.1(E) factors that support its award of spousal support to wife. The court found that the

parties had maintained a comfortable “standard of living . . . during the marriage,” which

included multiple “nice trips.” The court emphasized wife’s nonmonetary contributions to the

marriage, finding that she “made the classic military wife decision not to work outside the home,

but rather to support her husband’s military career.” Also significant to the circuit court were

wife’s career decisions and the distribution of the marital property, which left wife with “no

retirement other than her share of the marital portion of the husband’s military retirement.” Each

of the above findings is founded upon credible evidence, viewed in the light most favorable to

wife, and warrants the circuit court’s spousal support award to her.

After weighing the evidence and considering each of the Code § 20-107.1(E) factors, the

circuit court awarded wife $2,000 per month in spousal support, approximately half of what the

parties contributed to savings each month during the marriage. See Robinson, 54 Va. App. at 97

(affirming a spousal support award that exceeded the amount strictly “needed . . . to maintain

[wife’s] marital standard of living” when the award was based on the totality of Code

§ 20-107.1(E)’s factors (emphasis added)). That award was well within the circuit court’s “range

of choice,” and “not influenced by any mistake of law.” Galiotos, 300 Va. at 10 (quoting Landrum,

282 Va. at 352). Moreover, there is no evidence in this record that the court did not consider a

relevant factor, considered an irrelevant or improper factor, or committed “a clear error of

judgment” when considering all the appropriate statutory factors, which required only an estimate of

-7- wife’s needs. Id. at 11 (quoting Landrum, 282 Va. at 352). Therefore, under our standard of

review, we cannot say that the circuit court abused its discretion.

Wife seeks an award of attorney fees and costs in this appeal. “The decision of whether to

award attorney’s fees and costs incurred on appeal is discretionary.” Koons, 72 Va. App. at 743

(quoting Friedman v. Smith, 68 Va. App. 529, 545 (2018)). Although wife prevailed in this appeal,

we find that each party shall be responsible for their own fees and costs. Thus, we decline wife’s

request.

Accordingly, we affirm the circuit court’s award of spousal support to wife.

Affirmed.

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