Opinion
Record No. 1944-91-1
December 15, 1992
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ALAN E. ROSENBLATT, JUDGE.
H. Thomas Padrick, Jr., for appellant.
W. Brantley Basnight, III (Barry Dorans; Wolcott, Rivers, Wheary, Basnight Kelly, on brief), for appellee.
Present: Chief Judge Koontz, Judges Benton and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Edward J. Simmons (husband) appeals from an October 11, 1991 decree in which the Circuit Court of the City of Virginia Beach awarded Ann Simmons (wife) a no-fault divorce, $900 monthly spousal support, and $2,000 attorney's fees. On appeal, husband contends that the court (1) erred in granting wife an award of spousal support, (2) erred in determining the amount of the spousal support award, and (3) erred in granting wife an award of attorney's fees. For the reasons that follow, we affirm the court's decision.
Under familiar and well established principles, we review the award of spousal support for an abuse of discretion. We will not disturb a spousal support award unless it is clear that some injustice has been done. Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). The trial court must consider all the factors enumerated in Code § 20-107.1 in determining the amount of the award. This statute requires meaningful substantive consideration in the decision-making process. When the court does not quantify or elaborate on what weight or consideration it has given each factor, 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, 525 (1988).
The divorce was awarded pursuant to the provisions of Code § 20-91(9)(c). No evidence established a bar to wife's claim for spousal support. The record does not support the husband's contention that the court erred in granting wife an award of spousal support. The evidence proves that the wife needed support and the husband was able to pay spousal support.
With regard to the amount of the spousal support award, we find no merit to husband's first contention that neither the commissioner nor the court considered factor eight of Code § 20-107.1 in determining the amount of the award. The transcript of the commissioner's hearing contains clear and sufficient evidence of the parties' settlement regarding their marital property. This evidence was also before the court.
In addition, we find no merit to husband's contention that the court erred in elevating the amount of the spousal support award recommended by the commissioner. Upon a referral of the matter to a commissioner in chancery, the commissioner heard evidence and issued a report. In that report, the commissioner recommended a $750 monthly spousal support award in favor of wife and an award of $2,000 attorney's fees in her favor. Both parties filed exceptions to the report. Essentially, husband asserted that the awards were excessive and wife asserted that the awards were inadequate. The court conducted a hearing on the exceptions on August 2, 1991. The transcript of the commissioner's hearing is in the record. However, the record contains neither a transcript of the hearing on the exceptions nor a statement of facts detailing the arguments of the parties and the rationale of the court in its decision to elevate the commissioner's recommendation of spousal support to $900 per month.
While it would have been helpful to our review to have had a transcript or a statement of facts concerning the hearing on exceptions from which to determine the court's rationale, the absence of such in the record of this case is not fatal to the court's decision. The court was not bound by the commissioner's recommendation. It is clear from the transcript of the commissioner's hearing that wife established her need for support and husband's ability to provide for it. While husband contests portions of wife's income and needs, we cannot conclude from the evidence that the court abused its discretion in determining that $900 per month was an appropriate award. Moreover, we cannot conclude that this amount was an injustice to husband.
Finally, we find no error concerning the award of attorney's fees in favor of wife. "An award of attorney's fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion."Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The evidence showed that the parties' attorneys' fees were almost identical and that husband's income was considerably greater than wife's income. In this light, we cannot say that the court's decision to award fees to wife was unreasonable or excessive, or that the court abused its discretion in making the award.
Affirmed.