Opinion
Record No. 1744-93-1
Decided: January 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Robert B. Cromwell, Jr., Judge
Mark A. Barondess (Irve Charles Le Moyne, Jr.; Sandground, Barondess West, P.C., on briefs), for appellant.
William F. Burnside for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Rebecca H. McBride (wife) was granted a divorce a vinculo matrimonii from Robert G. McBride (husband) on the grounds of desertion and adultery, and husband appeals the attendant award of spousal support and attorney's fees to wife. Finding no error, we affirm the judgment of the trial court.
The parties are fully conversant with the record in this case, and a recitation of the facts is unnecessary to this memorandum opinion.
Under well established principles, we must "consider the evidence in the light most favorable to the party prevailing in the trial court." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). Although "a decree based upon depositions is not as strong and conclusive as one based on evidence heard ore tenus, it is presumed to be correct . . . [and] will not be reversed if . . . reasonably supported by substantial, competent and credible evidence." Canavos v. Canavos, 200 Va. 861, 866-67, 108 S.E.2d 359, 363 (1959); Williams v. Williams, 14 Va. App. 217, 219, 415 S.E.2d 252, 253 (1992). The "burden is on him who seeks to overturn it to show that it is manifestly wrong." Canavos, 200 Va. at 866, 108 S.E.2d at 363.
"[W]hether a spouse is entitled to spousal support, and if so how much, is a matter within the discretion of the court . . . ." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). Although the trial court is required to consider all of the factors set forth in Code Sec. 20-107.1, "[t]his does not mean that [it] is required to quantify or elaborate exactly what weight . . . it has given to each . . . .," provided "the court's findings . . . have some foundation based on the evidence presented." Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). Contrary to husband's argument, the final decree specifically confirms that "all applicable law and factors" were considered in the decision, and this recitation is supported by a review of the record.
Husband's contention that the trial court erroneously departed from the commissioner's recommendations by increasing the award of attorney's fees from $750 to $2000 is also without merit. "The trial court does not delegate to the commissioner in chancery its judicial functions or its duty to make factual determinations" and "is not bound by the commissioner's recommendations." Cochran v. Cochran, 14 Va. App. 827, 831, 419 S.E.2d 419, 421 (1992) (citing Jamison v. Jamison, 3 Va. App. 644, 645, 352 S.E.2d 719, 720 (1987)). "The ultimate decision in the case is left to the chancellor, who must review the evidence according to correct principles of law and arrive at his or her own conclusions." Id.
Any award of attorney's fees and costs to a party rests with the sound discretion of the trial court and will only be disturbed where there has been an abuse of discretion. Rowand v. Rowand, 215 Va. 344, 346-47, 210 S.E.2d 149, 151 (1974); Kaufman v. Kaufman, 7 Va. App. 488, 500, 375 S.E.2d 374, 380 (1988). Our examination of the record discloses no abuse of discretion in this instance.
Accordingly, the decree of the trial court is affirmed.
Affirmed.