Opinion
Record No. 1588-94-2
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF ORANGE COUNTY, Lloyd C. Sullenberger, Judge
Charles R. Jaeger for appellant.
David B. Franzen (Mark F. Leep; Feil, Pettit Williams, P.L.C., on brief), for appellee.
Present: Judge Benton, Senior Judges Cole and Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Following entry of a final decree granting Brenda S. Barden a divorce from her husband, Thomas Luther Barden, on the ground of adultery, the trial judge referred to a commissioner in chancery issues of spousal support and property distribution. The husband appeals from the trial judge's order awarding spousal support and distributing the marital property. He contends that the trial judge erred in: (1) the manner in which it divided marital property and apportioned the marital indebtedness; (2) using husband's adultery as the primary factor in making the property award; (3) awarding to the wife spousal support; (4) requiring the husband to pay attorney's fees; and (5) requiring the husband to pay all commissioner's and court reporter's fees. We affirm the trial judge's decision.
I.
The husband contends that the trial judge's division of marital property and apportionment of the marital debt did not reflect the joint efforts of the parties' economic partnership. We disagree.
In making an award based upon the equities and the rights of each party in the marital property, a trial judge has broad discretion in fashioning a division of property and making a monetary award. Alphin v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d 572, 576-77 (1992). On appeal, a party who feels aggrieved by such an award must establish an abuse of discretion. Robinette v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633 (1990). A distribution scheme which awards one party a significantly higher percentage of the marital property does not of itself indicate an improper division. Alphin, 15 Va. App. at 404, 424 S.E.2d at 577.
In explaining his decision, the commissioner issued a report in which he listed and commented on each of the statutory factors of Code Sec. 20-107.3. The trial judge considered this report and made additional comments regarding some of the factors. Evidence in the record supports the trial judge's decision. We find no basis upon which to conclude that the trial judge abused his discretion.
II.
The husband also argues that the trial judge improperly considered his acts of adultery in fashioning the award. We disagree. The trial judge expressly stated in his letter opinion that the husband's adultery had no effect upon the value of the marital property. "Circumstances that lead to the dissolution of marriage but which have no effect upon marital property or its value are not relevant to determining a monetary award and need not be considered." Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991).
III.
The husband contends that the trial judge erred in awarding the wife spousal support. He argues that the evidence proved that the wife did not need support and that he did not have the ability to pay the amount of support awarded.
In determining whether to award spousal support, the trial judge is required to "consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery." Code Sec. 20-107.1. Where the record reveals that the trial judge considered the factors enumerated in Code Sec. 20-107.1, its determination will not be overturned on appeal unless the decision is plainly wrong or unsupported by the evidence. Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992).
The commissioner listed each of the statutory factors under Code Sec. 20-107.1 followed by his findings. The trial judge reviewed these findings and determined that the commissioner's recommendation was "too high." The evidence of the husband's adultery supports the trial judge's threshold decision of whether to award the wife spousal support. Id. at 574, 421 S.E.2d at 645. The record also supports the amount of the award.
The trial judge stated in his letter opinion that he "especially" considered factors one ("The earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature") and eight ("The provisions made with regard to the marital property under Sec. 20-107.3") of Code Sec. 20-107.1. The trial judge had before him the financial records of the parties, including their federal and state income tax returns. Thus, it is evident from the record that the trial judge considered the husband's earning capacity and the needs of the wife.
IV.
"An award of attorney's fees to a party in a divorce suit is a matter for the exercise of the trial court's sound discretion after consideration of the circumstances and equities of the entire case." Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989). "[T]he key to a proper award of counsel fees . . . [is] reasonableness under all of the circumstances revealed by the record." McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
The trial judge ordered the husband to pay the wife $20,000 in attorney's fees, with payment at $200 per month for 36 months and the remainder in one lump sum at the end of this period. It is evident from the letter opinion that the trial judge based this decision on the wife's need for funds, the husband's ability to pay, and the husband's fault. The record supports the reasonableness of this decision.
V.
"Costs [incurred in a divorce suit] may be awarded to either party as equity and justice may require." Code Sec. 20-99(5). The trial judge ordered the husband to pay the entire $2,304 in commissioner's fees and the $509.05 in court reporter's fees because of his fault and his ability to pay these fees. The record reflects that the husband has adequate income to pay these fees and that his actions instigated this matter.
For these reasons, we affirm the judgment.
Affirmed.