Record No. 0395-93-4Court of Appeals of Virginia.
October 5, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY THOMAS S. KENNY, JUDGE.
(Anthony K. Amos, pro se, on brief).
(Lynn A. Brenner, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
MEMORANDUM OPINION[*]
PER CURIAM
Anthony K. Amos (husband) appeals the decision of the circuit court finding him guilty of deserting his wife and awarding Ann H. Amos (wife) child and spousal support and attorney fees. 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 the following issues on appeal: 1) whether the trial court erred in determining wife had not deserted husband; 2) whether the trial court erred in determining husband had deserted wife; 3) whether the trial court abused its discretion in ordering husband to pay spousal support and wife’s attorney fees; and 4) whether the trial court erred in determining the amount of child support husband was obligated to pay.
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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 regarding the circumstances surrounding the breakup of the marriage 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 (1985).
The commissioner’s report concluded that wife did not intend to terminate the marriage in August 1989. Although wife filed a Pretrial Motion for Custody in August 1989 in which she sought to retain custody of the couple’s youngest son and referred to a “marital separation,” the commissioner noted that she did not file a Bill of Complaint for Divorce. Both parties testified that they had lived separately for extended periods of time in the past when husband took other positions to advance his career. Therefore, wife’s testimony that husband’s relocation to Pennsylvania would not necessarily result in a divorce was credible.
On the contrary, there was substantial and credible evidence indicating that husband left the marital home in August 1989 with
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the intent to permanently separate from wife. Husband contacted a realtor to sell the marital home in June 1989; wrote utility companies seeking to discontinue service in July 1989; signed a lease in Pennsylvania in the summer of 1989 which indicated he and his youngest son, but not wife, would be the occupants; and moved a large portion of the furniture from the marital home in August 1989. The commissioner’s report also found that husband’s desertion was not justified. See Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30 (1988).
There was substantial, competent and credible evidence supporting the commissioner’s finding that husband, not wife, was the deserting party. Accordingly, we find no error in the trial court’s determination on this point.
Husband also challenges the trial court’s award of spousal support and attorney fees. The trial court conducted several hearings and received evidence from both parties regarding their financial circumstances. “The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).
Contrary to husband’s argument, the record demonstrates that both parties had ample opportunity to address the issue of spousal support. Moreover, the fact that no spousal support had been ordered pendente lite does not affect the amount of the permanent spousal award. “That the amount of the permanent
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[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).Similarly, “[a]n award of attorney’s fees to a party in a divorce suit is a matter for the exercise of the trial court’s sound discretion after consideration of the circumstances and equities of the entire case.” Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989) (citing Wagner v. Wagner, 4 Va. App. 397, 411, 358 S.E.2d 407, 414 (1987)). Husband has the burden to prove that the award of attorney fees was not “reasonable under all of the circumstances.” Westbrook v.Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 540 (1988).
The decision to award spousal support and attorney fees is left to the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused that discretion. Via v. Via, 14 Va. App. 868, 419 S.E.2d 421 (1992). Husband has not carried his burden to demonstrate an abuse of discretion by the trial court in ordering him to pay either spousal support or attorney fees.
Finally, husband argues the trial court erred in setting the amount of child support. The record indicates the court complied with Code § 20-108.2 in determining the amount of child support. Written findings were not required because the court did not
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deviate from the statutory guidelines. “To rebut the presumptive amount of the statutory guidelines the trial court’s order must contain `written findings.’ Code § 20-108.2. Absent these findings, deviation from the statutory guidelines cannot be permitted to stand.” Farley v. Liskey, 12 Va. App. 1, 5, 401 S.E.2d 897, 899 (1991) (emphasis added).
While husband asserts that the current gross income of the parties would result in a different amount of child support, that question is not properly before this Court. The question before us is whether the circuit court properly determined the amount of child support based upon the evidence before it. Husband has not demonstrated that the circuit court erred in setting the amount of child support.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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