Opinion
Record No. 0010-93-4
July 20, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. HOWE BROWN, JR., JUDGE.
(Judith M. Bragan, on briefs), for appellant.
(Lois Ilaine Vignes Upton, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
James E. Kasprzak ("husband") appeals the order of the trial court awarding permanent spousal support in the amount of $1,500 per month to his former wife, Angelica M. Kasprzak ("wife"). Husband raises three questions in challenging the court's order: 1) whether the court abused its discretion in increasing the amount of permanent spousal support from that awarded as pendente lite support; 2) whether the court failed to consider all the factors listed in Code §§ 20-107.1 and 20-108.1 in determining the amount of permanent spousal support; and 3) whether the court erred in finding that the wife's disability prevents her from pursuing a nursing career.
Wife filed a Bill of Complaint for Divorce on April 30, 1991. A hearing was held on July 7, 1992. The trial judge's July 22, 1992 opinion letter granted wife permanent spousal support in the amount of $1,500 per month, and made an equitable distribution of the couple's property. Following the issuance of the opinion letter, husband filed a Motion To Reconsider Spousal Support in which he challenged wife's earning capacity and the extent of her disability, and argued that he had additional financial obligations to his mother and children which were not considered when the amount of spousal support was set. The trial judge denied the motion, and the Final Decree of Divorce A Vinculo Matrimonii, Equitable Distribution and Spousal Support was issued on December 4, 1992.
On appeal, the evidence presented in the circuit court and all reasonable inferences therefrom must be viewed in the light most favorable to the prevailing party. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Moreover, "[t]he determination whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court and will not be disturbed on appeal unless is it clear that some injustice has been done." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986) (citations omitted).
Husband argues that the trial court abused its discretion by increasing the amount of permanent monthly spousal support to $1,500 from the $700 a month awarded as temporary spousal support. This argument is based, in part, upon the statement by wife in her testimony at trial that the $700 a month was sufficient to pay for her expenses.
The amount of the pendente lite spousal support is not a factor to be considered by the judge under Code § 20-107.1. "That the amount of the permanent [spousal support] award was a substantial increase over the amount of the temporary award is of no consequence. The amount of temporary support is not a factor under Code § 20-107.1 that the judge must consider when determining the appropriate amount of spousal support."Holmes v. Holmes, 7 Va. App. 472, 484, 375 S.E.2d 387, 394 (1988).
Moreover, husband's argument ignores the fact that the standard by which a trial court makes a spousal support award is not the amount the payee spouse "can get by with." Rather, "the law's aim is to provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay." Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990).
Wife's testimony at trial demonstrated that, while she was receiving the pendente lite spousal support of $700 a month, her monthly expenses were exceeding her income at that time by over $2,500, and she was relying on money borrowed from her mother to make ends meet. Wife's annual income was approximately $21,000, while husband's was $70,740. The trial judge noted in his opinion letter that wife's "realistic needs and the disparity in income of the parties belie" her assertion that $700 a month was sufficient. Therefore, the record indicates there was sufficient evidence to support the trial judge's order of spousal support in the amount of $1,500 a month.
Husband next argues that the trial court failed to consider all the factors contained in Code § 20-107.1 in determining the amount of spousal support, specifically the earning capacity of wife. Husband also argues that under Code § 20-108.1(A) the effect of his support of his mother should have been considered in setting the amount of permanent monthly spousal support.
Evidence was presented on the factors contained in Code § 20-107.1 and a review of the trial judge's opinion letter supports a finding that all the factors were considered.See Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986) (the court's findings "must have some foundation based on the evidence presented").
While husband argues that wife has an earning capacity as a nurse beyond what she is now receiving as a part-time receptionist and salesperson, the record contains no evidence concerning an increased earning capacity. Evidence was presented that wife is permanently disabled and unable to perform standard nursing duties. In fact, the testimony of both parties indicated that standard nursing employment was no longer an option of the appellee. In light of the evidence presented to the court, the decision of the trial judge is not plainly wrong or without evidence to support it and will not be disturbed on appeal. See Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
Moreover, there was no evidence presented concerning husband's financial burden to care for his mother. At best, the record contains husband's speculation concerning possible financial costs to him if he were to have his mother live with him, which she was not doing at the time of the trial. The court was not bound to consider mere speculative future costs in determining the amount of the spousal support payment. See Jacobs v. Jacobs, 219 Va. 993, 254 S.E.2d 56 (1979).
For the reasons stated, we affirm the trial court's decision.
Affirmed.