Opinion
Record No. 1226-93-1 Record No. 1289-93-1
November 30, 1993
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY JOHN M. FOLKES, JUDGE.
(R. Bruce Long, on briefs), for Lawrence W. Bracken.
(Michael T. Soberick; Dusewicz Soberick, on briefs), for Sandra R. Bracken.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Lawrence W. Bracken (husband) and Sandra R. Bracken (wife) appeal the decision of the circuit court awarding wife $2,000.00 a month in spousal support. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Husband raises two issues on appeal: (1) whether the trial court erred in awarding wife spousal support; and (2) whether the trial court erred in awarding spousal support based upon assets to which wife had waived rights in the parties' premarital agreement.
Wife raises one issue on appeal: whether the trial court erred in awarding monthly spousal support in an amount less than that recommended by the commissioner.
On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party all inferences fairly deducible therefrom. McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). Evidence in this matter was heard by a commissioner in chancery. "The commissioner's report is deemed to be prima facie correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990). "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1986). In this instance, the trial court modified the commissioner's report as to the amount of spousal support awarded and the disposition of the marital residence.
Record No. 1226-93-1
I. The decision to award spousal support rests within the sound discretion of the trial court and will not be overturned unless there has been an abuse of that discretion. Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992).
In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the nine factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 (1986).
The commissioner found that husband was entitled to a divorce on the basis of wife's desertion. That finding did not prohibit the award of spousal support to wife. See Code § 20-107.1. The commissioner's report, which was largely accepted by the trial judge, demonstrated due consideration of the statutory factors. Accordingly, we cannot say that the trial judge's order awarding spousal support to wife was an abuse of discretion.
II. In their prenuptial agreement, the parties expressly relinquished all claims of ownership to property held or acquired by the other. Paragraph 4 of the agreement stated the following:
Except as otherwise provided above, all property of any kind or nature, real, personal or mixed wheresoever situate [sic] and howsoever held, presently owned or hereafter acquired by each party, shall be and forever remain the property of the said party, including all commissions, interest, dividends, rents and profits derived or accruing therefrom.
This mutual disclaimer of ownership interests specifically extended to the division of property in the event of a separation or divorce. Paragraph 7 of the agreement stated the following:
Each party, in the event of a separation or divorce, either from bed and board or final, shall have no right as against the other by way of claims for any division of property whatsoever. LAWRENCE W. BRACKEN, SR., and SANDRA RICHARDSON NEWMAN specifically agree that they will not at any time cause any liens to be placed on any property owned by the other.
Thus, the parties' ownership of their separate property was expressly retained.
"In Virginia, 'marital property [agreements] entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.'" Drewry v. Drewry, 8 Va. App. 460, 466, 383 S.E.2d 12, 14 (1989) (citations omitted). However, the premarital agreement at issue here was silent as to whether either party was entitled to spousal support upon divorce.
As the Code makes clear, the trial court's responsibility to determine whether spousal support is warranted is distinguishable from its task to resolve issues of property ownership. See Code §§ 20-107.1 and -107.3. We cannot say the trial judge erred in finding that wife had not waived her right to spousal support by entering into the premarital agreement.
Once the trial court determined that spousal support was due and the right to the support had not been waived, "then the court must weigh the relative needs and abilities of the parties in accordance with the statutory factors enumerated in Code § 20-107.1." Dukelow v. Dukelow, 2 Va. App. 21, 26, 341 S.E.2d 208, 210 (1986). Among those factors are the economic and financial resources of the parties. Code § 20-107.1(1). In this instance, husband had substantially greater assets and monthly income than wife, who had tried unsuccessfully to obtain employment. Thus, based upon the parties' entire financial circumstances, as well as the other statutory factors, the trial judge ordered payment of spousal support.
The trial judge's order specified the amount of the spousal support but it did not delineate the particular financial resources from which husband was to make the support payments. That decision rests with husband.
Contrary to the husband's contention, the source of the payments need not come from [the property to which wife had no ownership rights]; the husband is free to satisfy his obligations to his former wife by using other available assets.
Holmes v. Holmes, 7 Va. App. 472, 485, 375 S.E.2d 387, 395 (1988). We cannot say the trial judge erred in considering husband's entire financial resources when awarding spousal support.
Record No. 1289-93-1
The amended commissioner's report recommended monthly spousal support to wife of $3,000.00. The trial judge, without elaboration, reduced the amount of spousal support awarded wife to $2,000.00. "While the report of a commissioner in chancery does not carry the weight of a jury's verdict, it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence."Goetz v. Goetz, 7 Va. App. 50, 53, 371 S.E.2d 567, 568 (1988) (quoting Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97) (1984)). "When the court does not quantify or elaborate on what weight or consideration it has given each factor [in Code § 20-107.1], we must examine the record to determine if the award is supported by evidence relevant to those factors."Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523 (1988) (citation omitted).
In the course of the proceedings, the trial judge had ordered monthly pendente lite spousal support in the amount of $2,000.00 and had denied husband's motion to reduce that amount. The evidence of expenses submitted by wife indicated that her expenses were approximately $2,000.00. Thus, while the trial judge did not specify the reason why the commissioner's recommended amount of spousal support was reduced, there was substantial credible evidence in the record to support the trial judge's decision.
Accordingly, we cannot say that the trial judge abused his discretion in rejecting the commissioner's recommendation and awarding permanent monthly spousal support in the amount of $2,000.00.
Therefore, the decision of the trial court is affirmed.
Affirmed.