Opinion
Record No. 1248-93-3
February 15, 1994
FROM THE CIRCUIT COURT OF WYTHE COUNTY KENNETH I. DEVORE, JUDGE.
(Arthur E. Smith, on brief), for appellant.
(Charles L. Williams, Jr.; Melissa W. Scoggins; Gentry, Locke, Rakes Moore, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Bobby Carroll Turner (husband) appeals from the decision of the trial court awarding Glenna Dellinger Turner (wife) $2,000.00 in monthly 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 June 3, 1993 order of the trial court was void because it was entered without the endorsement of husband's counsel and without notice of its presentation, in violation of Rule 1:13; and (2) whether the trial court erred in determining the amount of spousal support.
"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted).
I.
Rule 1:13 requires that counsel for all parties either endorse a draft order or receive reasonable notice of the time and place of entry of the order to have an opportunity to be heard.Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717, 719 (1988). "A decree that fails to comply with Rule 1:13 is void."Westerberg v. Westerberg, 9 Va. App. 248, 250, 386 S.E.2d 115, 116 (1989).
The order entered June 3, 1993 was endorsed by counsel for both husband and wife. Husband's objections to the order were noted in an attachment thereto. The record indicates that husband and his counsel were present at the hearing held on March 19, 1993 and received a copy of the trial judge's letter opinion dated March 25, 1993.
Because husband has not demonstrated that the order from which he appeals was entered contrary to the requirements of Rule 1:13, he has not established that the order is void.
II.
"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).
By agreement of the parties, the issue of spousal support was left in abeyance in the final divorce decree. The trial court then heard evidence ore tenus before issuing its letter opinion setting permanent spousal support for wife at $2,000.00 per month.
There was substantial, competent, and credible evidence supporting the trial judge's decision, including, but not limited to, evidence regarding the parties' respective earning capacities and health. The trial judge considered the factors contained in Code § 20-107.1 and set out his analysis of the statutory factors in the letter opinion. The trial judge's analysis reflects no abuse of discretion so as to require that the decision be set aside.
In the letter opinion, the trial judge erroneously stated that "[t]his matter is before the Court on . . . [husband's] motion for a reduction in spousal support pursuant to Section 20-109." In his analysis, however, and in the accompanying order, the judge cited and applied Code § 20-107.1, which was the proper statutory provision. Accordingly, the reference to Code § 20-109 was, at most, harmless error.
Accordingly, the decision of the trial court is affirmed.
Affirmed.