Oscar O. Ozfidan v. Pamela L. Ozfidan ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Russell and AtLee
UNPUBLISHED
Argued at Richmond, Virginia
OSCAR O. OZFIDAN
MEMORANDUM OPINION* BY
v. Record No. 0806-16-2 CHIEF JUDGE GLEN A. HUFF
JANUARY 10, 2017
PAMELA L. OZFIDAN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
John Marshall, Judge1
A. Russell Watson (Hairfield Morton, PLC, on briefs), for
appellant.
Misty D. Whitehead (MD Whitehead Law, PLLC, on brief), for
appellee.
Oscar O. Ozfidan (“husband”) appeals a ruling of the Circuit Court of Henrico County
(“trial court”) ordering him to pay $1200 per month in spousal support to Pamela L. Ozfidan
(“wife”) indefinitely. For the following reasons, this Court affirms the trial court’s rulings.
I. BACKGROUND
Following established principles of appellate review, this Court views the evidence in the
light most favorable to wife, the party prevailing below, granting wife the benefit of all
reasonable inferences that can be fairly drawn. Chretien v. Chretien, 53 Va. App. 200, 202, 670
S.E.2d 45, 46 (2008) (citing Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835
(2003)). So viewed, the evidence established that the parties were married in Lubbock, Texas in
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Marshall presided over the hearings on remand from the initial appeal; Judge
Catherine C. Hammond presided over the original divorce proceedings.
1998 where husband was earning his Ph.D. in economics. Wife, who has a high school diploma,
primarily supported the family by working at a local newspaper; husband contributed additional
income he earned as a teaching assistant. Once husband obtained his degree, the parties moved
to Richmond after husband accepted a position as an economist for the Commonwealth of
Virginia. Wife worked as a flight attendant until she became pregnant with the parties’ twin
children, born in 2005. The parties agreed that wife would be a stay-at-home mother until the
children began attending kindergarten.
According to wife’s testimony, the transition to her remaining at home after years of
frequently being away as a flight attendant created strain in the marriage, culminating in an
incident the night of March 3-4, 2012. On that night, according to wife, husband knocked her
out of bed and began attacking her, striking her with enough force to break her arm. A friend
transported wife to the hospital where she was diagnosed with an ulnar fracture. After the attack,
wife obtained a two-year protective order against husband and received temporary exclusive
possession of the marital home.
On April 13, 2012, wife filed a divorce complaint in the trial court, alleging that husband
committed the fault ground of cruelty. Throughout the pendency of the divorce proceedings, the
parties also conducted parallel proceedings in the Henrico County Juvenile and Domestic
Relations District Court (“JDR court”) regarding, among other issues, spousal support. The JDR
court entered a final order regarding child and spousal support on October 12, 2012. Wife did
not request an award of spousal support in her divorce complaint because “she was satisfied with
the [JDR court] retaining jurisdiction over same and did not wish to incur unnecessary expenses
re-litigating the issues.”
The trial court conducted an evidentiary hearing on November 25, 2013 addressing the
grounds for divorce, equitable distribution, fees, and costs. The trial court sua sponte raised the
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issue of spousal support during the hearing, asking whether wife was seeking spousal support as
part of the divorce proceedings. Wife indicated that spousal support was currently before the
JDR court in an independent action, and the trial court ultimately declined to hear the spousal
support issue because the divorce complaint did not request spousal support and a hearing on
spousal support was pending before the JDR court. On December 11, 2013, the trial court issued
a letter opinion concluding that “[t]he divorce will be entered on the grounds of cruelty.” The
letter opinion’s sole treatment of the spousal support issue was a note that “[m]atters of spousal
support . . . will be transferred to the [JDR court].”
On February 18, 2014, the trial court held a hearing on husband’s motion to reconsider
the December 11, 2013 ruling. During that hearing, husband asked the trial court to reopen the
issue of spousal support. The trial court declined to do so after the parties informed it that
husband’s de novo appeal of the JDR court’s spousal support award had been docketed in the
trial court for hearing on March 10, 2014. The trial court then continued the matter to the March
10 hearing in order to “hear the appeal and then . . . hear the oral motion that we got today to
have this Court determine a permanent award of spousal support as part of the final decree” on
that date. Despite being referenced throughout the briefs, the record does not include any
transcript of the March 10, 2014 proceeding or any written orders from the trial court arising
from that hearing.2
2
Husband’s opening brief states: “On March 10, 2014, the trial court declined to hear the
issue of permanent spousal support on the grounds that neither party had filed a pleading in the
divorce action requesting a determination of spousal support.” Wife’s brief states:
At the March 10, 2014 hearing, the Court heard granted [sic]
[husband’s] Motion to Reduce Support and set new amounts for
child support and spousal support. The Court denied [husband’s]
motion to address permanent spousal support as part of the
divorce. The Court directed counsel to draft the Orders. This
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On March 18, 2014, husband filed a “Motion to Decree Spousal Support” in the trial
court, which stated in its entirety:
Comes now the defendant . . . by counsel, pursuant to Section
20-107.1 of the Code of Virginia (1950), as amended, and moves
this Court to decree the maintenance and support of the spouses
and, if any such decree be made, order that said support and
maintenance be made in periodic payments for a defined duration.
Wife filed a response to this motion as well as a motion to enter a final decree on March 20,
2014. The trial court entered its final divorce decree on June 9, 2014, ruling, inter alia,
“[Husband] moved for an award of spousal support which motion was overruled as plaintiff’s
pleadings never requested spousal support. [Husband] objects.”
Husband filed a notice of appeal to this Court on July 9, 2014. On May 5, 2015, this
Court issued its opinion holding with respect to the spousal support issue that “it was error for
the circuit court to base its decision on spousal support solely on the fact that wife did not request
spousal support in her circuit court divorce pleadings” and remanding the spousal support issue
to the trial court for reconsideration.
The trial court held a hearing on the remanded issues on November 16, 2015. At the
beginning of the hearing, counsel for husband stated:
What I want to make clear to the Court going forward is with
regards to [husband’s] motion to decrease spousal support, we are
specifically limiting the request for relief to a denial of spousal
Order, entered by the Court pursuant to its jurisdiction subject to
[husband’s] appeal, has never been vacated.
Further, wife repeatedly asserts in various ways on brief that “even if this [C]ourt were to reverse
the final order entered by the Circuit Court on April 25, 2016, arguably [wife] would still be
entitled to support pursuant to the March 10, 2014 Circuit Court Order.” At no point, however,
does either husband or wife cite to any March 10, 2014 trial court order in the record. Because
any orders arising from the March 10, 2014 hearing are not included in the record, their effect, if
any, is beyond this Court’s review. Cf. Campbell v. Campbell, No. 1629-10-2, 2011 Va. App.
LEXIS 264, at *27 n.3 (Va. Ct. App. Aug. 9, 2011).
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support for wife. [Husband] is not seeking spousal support for
himself, nor is he seeking a reservation.
After presenting evidence of husband’s inability to pay spousal support, husband argued that his
motion to decree spousal support only permitted the court to deny spousal support to wife and
presented a memorandum in support of that motion. Counsel for wife argued that because the
relief husband requested at the hearing was new and not contemplated by his motion to decree
spousal support, she should be entitled to make an oral motion to award spousal support to wife
if the trial court accepted husband’s argument. The trial court ultimately took husband’s motion
under advisement, suspended the hearing, and directed wife to prepare a written response to
husband’s memorandum.
The trial court resumed the hearing on February 8, 2016, ruling that the issue of spousal
support was properly before the trial court—thereby rejecting husband’s contention that his
motion to decree spousal support limited the trial court to a denial of spousal support to wife.
The trial court also noted its belief that any award of spousal support it issued must be of limited
duration as pled in the motion to decree spousal support. Wife then presented evidence in favor
of an award of spousal support to wife. The trial court issued a letter opinion on February 11,
2016 in which it first concluded that it was not, in fact, limited to a specific duration in making
an award of spousal support, then ordered husband pay wife spousal support of $1200 per month
for an indefinite duration. The trial court entered a final order pursuant to the letter opinion on
April 25, 2016 to which husband noted his objections.
This appeal followed.
II. STANDARD OF REVIEW
“In reviewing a spousal support award, we are mindful that the trial court has broad
discretion in awarding and fixing the amount of spousal support.” Brooks v. Brooks, 27
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Va. App. 314, 317, 498 S.E.2d 461, 463 (1998). As such, the trial court’s decision regarding
spousal support “will not be disturbed on appeal unless there has been a clear abuse of
discretion.” Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). A court “by
definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion
standard includes review to determine that the discretion was not guided by erroneous legal
conclusions.” Giraldi v. Giraldi, 64 Va. App. 676, 682, 771 S.E.2d 687, 690 (2015) (quoting
Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)).
This Court reviews questions of law, including matters of statutory interpretation, de
novo. See Harrell v. Harrell, 272 Va. 652, 656, 636 S.E.2d 391, 393 (2006); see also Anthony v.
Skolnick-Lozano, 63 Va. App. 76, 83, 754 S.E.2d 549, 552 (2014). Further, the party
challenging the trial court’s decision on appeal “bears the burden to demonstrate error on the part
of the trial court.” Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240, 248 (1998).
III. ANALYSIS
Husband’s appeal challenges the trial court’s spousal support rulings in ten assignments
of error:
1. The Court erred in making a spousal support award to [wife]
when she did not have a valid pleading before the Court
requesting support for herself.
2. The Court erred in denying [husband’s] motion for summary
judgment and motion to strike [wife’s] case based on her
failure to request spousal support in this proceeding.
3. The Court erred in improperly construing [husband’s] motion
to decree spousal support as a request for an award of spousal
support to [wife].
4. The Court erred in holding that [husband’s] motion to decree
spousal support is a basis for awarding spousal support to
[wife].
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5. The Court erred when it denied and disregarded [husband’s]
request to limit the relief he requested in his motion to decree
spousal support to a denial of support to [wife].
6. The Court erred in making a spousal support award to [wife]
based on [husband’s] motion to decree spousal support.
7. The Court erred in making an indefinite award of spousal
support to [wife] when [husband’s] motion to decree spousal
support requested that any award of spousal support be for a
defined duration.
8. The Court erred in awarding [wife] spousal support after entry
of the parties’ final decree of divorce dissolving the marriage
where [wife] had not requested spousal support or a reservation
of her right to spousal support.
9. The Court erred in awarding [wife] spousal support after she
had waived any right to spousal support by asking the Court to
deny [husband’s] motion to decree spousal support (in her
Memorandum in Response to Motion to Decree Spousal
Support and Motion to Enter Final Decree dated March 20,
2014).
10. The evidence presented did not support an indefinite spousal
support award of $1,200.00 per month to [wife] and the court
erred in ordering that amount, including, but not limited to, that
the effect of the equitable distribution on [husband’s] ability to
meet his support obligation, in finding that [husband’s]
compliance with the existing support order proved he was able
to pay that amount, and in finding that [wife] was limited in her
job prospects.
A. Husband’s motion to decree spousal support as a basis
for awarding spousal support to wife
Husband’s assignments of error 1, 2, 3, 4, and 6 challenge the trial court’s decision to
award wife spousal support based on husband’s pleading entitled “Motion to Decree Spousal
Support.” Specifically, husband argues that any claim to spousal support is personal to wife and
must be sought by her in a separate pleading because no statutory authority exists for the trial
court to award her spousal support based on husband’s pleading. For the reasons that follow, this
Court disagrees.
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Code §§ 20-79(b) and 20-107.1 govern issues of spousal support. The relevant portion of
Code § 20-79(b) provides:
In any suit for divorce, the court in which the suit is instituted or
pending, when either party to the proceedings so requests, shall
provide in its decree for the . . . support and maintenance for the
spouse . . . if in the judgment of the court any or all of the
foregoing should be so decreed.
(Emphasis added). The version of Code § 20-107.1 applicable to this case provides, in pertinent
part:
A. Pursuant to any proceeding arising under subsection L of
§ 16.1-241 or upon the entry of a decree providing (i) for the
dissolution of a marriage, (ii) for a divorce, whether from the bond
of matrimony or from bed and board, (iii) that neither party is
entitled to a divorce, or (iv) for separate maintenance, the court
may make such further decree as it shall deem expedient
concerning the maintenance and support of the spouses.3
The issue raised by these assignments of error turns on longstanding principles of
pleading. “All motions in writing . . . are pleadings.” Rule 3:18(a). In Potts v. Mathieson Alkali
Works, 165 Va. 196, 181 S.E. 521 (1935), the Supreme Court observed: “The issues in a case
are made by the pleadings, and the judicial tribunals, in determining the respective rights of
litigants, cannot go beyond the issues thus made.” 165 Va. at 223, 181 S.E. at 532. Pleadings
3
Effective July 1, 2016, the General Assembly amended Code § 20-107.1(A) to include
the language, “notwithstanding a party’s failure to prove his grounds for divorce, provided that a
claim for support has been properly pled by the party seeking support,” immediately following
the section quoted above. (Emphasis added). The 2016 amendment is not applicable to this suit.
“As a general rule, laws existing at the time a suit is filed govern the case.” Marion v. Marion,
11 Va. App. 659, 669, 401 S.E.2d 432, 438 (1991). “[W]hen a statute is amended while an
action is pending, the rights of the parties are to be decided in accordance with the law in effect
when the action was begun, unless the amended statute shows a clear intention to vary such
rights.” Price v. Price, 4 Va. App. 224, 230, 335 S.E.2d 905, 908 (1987) (quoting Washington v.
Commonwealth, 216 Va. 185, 193, 217 S.E.2d 815, 823 (1975)). Because nothing in the 2016
amendment suggests the General Assembly intended the amendment to apply retroactively to
actions filed before July 1, 2016, this Court reviews this case under the prior version of Code
§ 20-107.1.
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thus serve as formal allegations by the parties of claims and defenses, setting forth the issues to
be tried and determined among them. See, e.g., Baylor v. Commonwealth, 190 Va. 116, 121, 56
S.E.2d 77, 79 (1949).
In the spousal support context, either party may ask the circuit court for a provision in the
final divorce decree awarding or denying spousal support. See Reid v. Reid, 24 Va. App. 146,
151, 480 S.E.2d 771, 773 (1997) (“[E]ither party, by proper pleading, ‘could have asked the
Circuit Court to make specific provision in the final divorce decree for allowance or denial of
[spousal support]. If such a provision had been included in the decree, the jurisdiction of the
[district court] would have ceased under § 20-79(a).’” (alteration in original) (quoting Werner v.
Commonwealth, 212 Va. 623, 625, 186 S.E.2d 76, 78 (1972))). In the first appeal of the case at
bar, this Court interpreted Code § 20-79(b), Werner, and Reid, to conclude that the trial court
could reach the issue of spousal support even though wife did not file a pleading requesting it.
Ozfidan v. Ozfidan, No. 1265-14-2, 2015 Va. App. LEXIS 148, at *28 (Va. Ct. App. May 5,
2015). Specifically, this Court ruled:
[E]ither party can request the circuit court for a provision in a final
divorce decree awarding or denying spousal support. A party
seeking spousal support, of course, would not seek an order
denying spousal support. Thus, Werner permits one party to
request a provision in the final decree denying an award of spousal
support to the other party (as in Werner) or limiting the other
party’s spousal support award to a defined duration (as here).
Consequently, we agree with husband that it was error for
the circuit court to base its decision on spousal support solely on
the fact that wife did not request spousal support in her circuit
court divorce pleadings.
Id.
Having thus previously determined that the trial court could not decline to reach spousal
support solely because wife did not file a pleading requesting an award, this Court now must
determine the effect of husband’s motion to decree spousal support. Husband filed the motion in
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order to bring the issue of spousal support before the trial court; wife had received an award of
spousal support in the JDR court, that award had survived a subsequent motion to reduce in the
JDR court and appeal to the trial court. Husband therefore sought to have the trial court
determine spousal support in order to extinguish wife’s favorable JDR court award, while wife
sought a divorce decree silent on the issue of spousal support in order to preserve her existing
award. See Reid, 24 Va. App. at 151, 480 S.E.2d at 773 (“An existing order of spousal support
survives a subsequent decree of divorce which is silent on the issue.”); see also Werner, 212 Va.
at 625, 186 S.E.2d at 78 (“[A] support order of a juvenile and domestic relations court continues
in full force and effect notwithstanding the entry by a court of record of a divorce decree that is
silent as to support.”).
After this Court agreed with husband in his initial appeal that the trial court could decree
spousal support despite wife’s failure to request it in her pleadings, husband on remand argued
that his motion to decree spousal support did not provide the trial court sufficient basis to award
wife spousal support. In light of the plain language of husband’s motion and the order of this
Court’s remand, however, the trial court properly found that husband’s motion placed before it
the issue of spousal support such that it could appropriately make an award to wife. The trial
court reasoned:
The Court takes the position that [husband’s] pleading on its face
put the issue before the Court between the spouses, not solely for
[husband], and one could also logically argue by his statement that
a contemplation was made in the pleading that he would be, in fact,
ordered to pay support based on the requests that it be for a defined
duration. It would not make total sense for [husband] to want
spousal support and then say, oh, by the way, just limit me to how
long I can get it. I don’t view this in a vacuum . . . . I think this
Court, as per the edict of the Court of Appeals, has to now address
the spousal support issue, and my ruling is that that is between the
spouses as pled by [husband]. So it is an open question now as to
who is going to get spousal support . . . .
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Husband’s motion asks the trial court “to decree the maintenance and support of the spouses.”
(Emphasis added). The motion’s language tracks that of Code § 20-107.1(A), which provides
that, under circumstances including those present here, “the court may make such further decree
as it shall deem expedient concerning the maintenance and support of the spouses.” (Emphasis
added). Husband requested that the trial court decree support of the “spouses”—not support for
husband only, and not a denial of support for the wife. Accordingly, as worded, husband’s
motion to decree spousal support served as a request that the trial court award spousal support
among the “spouses,” not “for the spouse,” and the trial court therefore was entitled to award
support “as it . . . deem[ed] expedient.”4
4
As noted above, this Court finds no ambiguity in husband’s motion. As written, it
placed the issue of support between the spouses, which includes support from husband to wife,
squarely before the circuit court. Moreover, even if this Court were to find the language of the
motion ambiguous, any such ambiguity would have to be construed against husband: it has long
been the rule that, particularly where a pleading is unclear or subject to multiple interpretations,
pleadings are construed against their proponent. See Frigorifico Wilson De La Argentina v.
Weirton Steel Co., 62 F.2d 677, 679 (4th Cir. 1933) (“[T]he rule ordinarily is that a pleading
must be taken in the sense most unfavorable to the pleader . . . .”); see also 14B Michie’s
Jurisprudence, Pleading § 2 (2016) (“Another familiar rule of law is that a pleading must always
be construed most unfavorably to the pleader.”). Addressing pleas in bar specifically, Joseph
Chitty noted a more general application of the rule in his seminal treatise on pleading:
As it is a natural presumption that the party pleading will state his
case as favorably for himself as possible, and that if he do not state
it with all its legal circumstances, the case is not in fact favorable
to him, it is a rule of construction, that if a plea has on the face of it
two intendments, it shall be taken most strongly against the
defendant; that is, the most unfavorable meaning shall be put upon
the plea; a rule which we have seen obtains also in the case of
other pleadings.
1 Joseph Chitty, Precedents of Pleading *571 (1808); see United States v. Linn, 42 U.S. (1 How.)
104, 110-11 (1843) (citing Chitty favorably for the proposition that pleas are “to be construed
most strongly” against their proponent).
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Husband contends that Wroblewski v. Russell, 63 Va. App. 468, 759 S.E.2d 1 (2014),
Boyd v. Boyd, 2 Va. App. 16, 340 S.E.2d 578 (1986), and Harrell, 272 Va. 652, 636 S.E.2d 391,
dictate a contrary conclusion. Those cases, however, are distinguishable from the facts at bar.
In Wroblewski, the trial court awarded wife spousal support even though it struck the
only pleading in which wife demanded spousal support and husband did not raise the issue of
spousal support. 63 Va. App. at 475-76, 759 S.E.2d at 4. Thus, “it was error for the trial court to
award spousal support without any pleading at all before the court making the request.” Id. at
477, 759 S.E.2d at 5. In Boyd, this Court reversed the trial court’s award of spousal support to
wife where neither husband nor wife raised the issue in their pleadings, noting that a “general
prayer . . . for ‘further relief’” was insufficient to justify the award. 2 Va. App. at 19, 340 S.E.2d
at 580. Finally, in Harrell, the trial court awarded wife a reservation of spousal support even
though it dismissed both pleadings in which she requested spousal support and husband’s
pleading specifically requested “that he be awarded permanent spousal support.” 272 Va. at
654, 636 S.E.2d at 393 (emphasis added). In reversing the award, the Supreme Court held that
“Ms. Harrell had no valid pleading before the trial court requesting permanent spousal support”
because “[w]ithout such a pleading, it was error for the trial court to grant a reservation of
spousal support to her.” Id. at 658, 636 S.E.2d at 395.
In contrast, a recent unpublished decision of this Court addresses the exact issue
presented by this case.5 In Ruane v. Ruane, No. 1285-15-2, 2016 Va. App. LEXIS 320, at *8-9
(Va. Ct. App. Nov. 22, 2016), this Court held that the trial court properly awarded wife spousal
support based on a request for relief in husband’s complaint for divorce even though wife’s
complaint for divorce made no such request. Husband’s complaint specifically requested that
5
Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f).
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“the Court make an appropriate award of spousal support,” and this Court ruled that husband’s
open-ended request “was sufficient to permit the circuit court to award spousal support to wife in
the final decree of divorce, even though it was husband who made the request to the court.” Id.
at *11.
In this case, exactly like the situation in Ruane, there was a valid pleading before the
court requesting spousal support even though it did not specifically name the party to whom the
trial court should award support. Despite husband’s reliance on Harrell, that case is
distinguishable in that the husband there requested spousal support exclusively for himself; here,
husband’s motion simply asked the trial court “to decree the maintenance and support of the
spouses.” (Emphasis added). Husband’s motion to decree spousal support was sufficient to raise
the issue for adjudication, and the trial court properly awarded spousal support to wife upon that
basis. Accordingly, this Court finds that the trial court correctly ruled that it could reach the
issue of spousal support based on husband’s pleading, and it therefore appropriately dismissed
husband’s motions to strike and for summary judgment.
B. Limitations of husband’s motion
In assignments of error 5 and 7, husband argues that the trial court erred in awarding wife
indefinite spousal support despite his request to limit relief to a denial of spousal support to wife
or to an award of defined duration. For the following reasons, the trial court did not err in its
award.
On remand, husband for the first time contended that his motion was limited to a request
of denial of spousal support for wife: “What I want to make clear to the Court going forward is
with regards to [husband’s motion], we are specifically limiting the request for relief to a denial
of spousal support for wife. [Husband] is not seeking spousal support for himself, nor is he
seeking a reservation.” The language of husband’s motion, however, is inconsistent with a
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request for denial of spousal support to wife. As the trial court observed, husband’s request for a
decree of spousal support followed immediately by a qualification that any award be limited to a
defined duration implied that husband’s pleading contemplated an award of support to wife.
Indeed, in deciding husband’s initial appeal, this Court specifically distinguished husband’s
pleading from a request for denial of support: “Thus, Werner permits one party to request a
provision in the final decree denying an award of spousal support to the other party (as in
Werner) or limiting the other party’s spousal support award to a defined duration (as here).”
Ozfidan, 2015 Va. App. LEXIS 148, at *28. Moreover, because husband did not seek leave to
amend his pleading pursuant to Rule 1:8, his characterization of the motion as one to deny wife
spousal support is merely a nonbinding request of the trial court, and wife had a right to rely on
his pleading unless and until it was amended with leave of court. Cf. Berry v. Klinger, 225 Va.
201, 207, 300 S.E.2d 792, 795 (1983) (recognizing that “[u]nless amended, a litigant’s pleadings
are binding upon him . . . [and] [h]is opponent is entitled to rely upon the position [the litigant]
takes”). As husband conceded during the hearing on remand, “the Court may be inclined to deny
or disregard the limitation of the relief we are requesting.” The trial court was so inclined, and
this Court finds that the trial court did not err in denying husband’s request to interpret his
motion to decree spousal support as a demand that wife be denied spousal support.
Husband’s contention that the trial court erred in making an indefinite spousal support
award to wife when husband’s pleading requested any award be for a defined duration is also
unavailing. The trial court was not bound by the request in husband’s pleading. Code
§ 20-107.1(C) provides that “[t]he court, in its discretion, may decree that maintenance and
support of a spouse be made in periodic payments for a defined duration, or in periodic payments
for an undefined duration, or in a lump sum award, or in any combination thereof.” (Emphasis
added). “[T]his statute does not require the trial court to specify the date of termination of a
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spousal support award. In fact, the language allows the trial court to order an award for an
undefined duration.” Joynes v. Payne, 36 Va. App. 401, 423, 551 S.E.2d 10, 21 (2001).
Accordingly, the trial court did not abuse its discretion in determining that it could make an
indefinite award of spousal support notwithstanding the limitation sought in husband’s motion.
C. Evidentiary support for wife’s award
Having concluded that the trial court could make an indefinite award of spousal support,
this Court now reviews assignment of error 10, in which husband contends that the trial court
abused its discretion in setting the amount of the award at $1200 because there was insufficient
evidence to support that amount. For the following reasons, the trial court did not abuse its
discretion.
The principles governing a trial court’s determination of an indefinite spousal support
award are familiar. Code § 20-107.1(F) provides in part that “[i]n contested cases in the circuit
courts, any order granting, reserving or denying a request for spousal support shall be
accompanied by written findings and conclusions of the court identifying the factors in
subsection E which support the court’s order.” “In exercising its discretion, the trial court must
consider all the factors enumerated in Code § 20-107.1(E) when fashioning its award, but it is
not ‘required to quantify or elaborate exactly what weight or consideration it has given to each of
the statutory factors.’” Duva v. Duva, 55 Va. App. 286, 300, 685 S.E.2d 842, 849 (2009)
(quoting Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005)). In making an award
for an indefinite duration, the trial court need only “identify the subsection (E) factors supporting
the award and explain the resolution of significant factual disputes.” Cleary v. Cleary, 63
Va. App. 364, 370 n.4, 757 S.E.2d 588, 591 n.4 (2014). The trial court’s findings, however,
“must have some foundation based on the evidence presented.” Wooley v. Wooley, 3 Va. App.
337, 345, 349 S.E.2d 422, 426 (1986). Accordingly, where the record indicates that the trial
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court properly considered each of the statutory factors, this Court will not disturb its
determination as to spousal support. Miller, 44 Va. App. at 679, 607 S.E.2d at 128.
Husband contends that the trial court improperly adopted the amount of the JDR court’s
award in its spousal support award without sufficient supporting evidence. Specifically, husband
alleges on brief: “The pendente lite support award to [wife] was $1,212.72 per month. The trial
court upon remand ordered $1,200 per month as permanent spousal support. The trial court
simply adopted the pendente lite spousal support award as the permanent spousal support
amount . . . .” Husband correctly notes that pendente lite spousal support awards are generated
according to a statutory formula contained in Code § 16.1-278.17:1 and not by consideration of
the factors in Code § 20-107.1(E). The record before this Court, however, is far from clear
regarding the nature and extent of the JDR court’s spousal support award.
No JDR court spousal support order, pendente lite or otherwise, is included in the record.
Moreover, the parties themselves appear unable to agree on the amount or nature of the JDR
court award. During the November 16, 2015 hearing, in response to repeated assertions by
counsel for husband that the JDR court award was pendente lite, the trial court stated: “The
order doesn’t say pendente lite. It says support order.” During the same exchange, counsel for
wife stated: “It [the JDR court order] was not pendente lite. The last paragraph states that [there
is] nothing further remaining to be done. It is hereby ordered that this cause is stricken from the
docket and remanded.” Moreover, when asked on direct examination during the February 8,
2016 hearing whether “the spousal support award as it currently stands is about $1,200 per
month, correct?,” husband replied, “$1,287, I believe.” Thus, in light of the many omissions and
conflicts within the record, this Court cannot determine the nature or amount of the JDR court’s
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support award to wife and thus is unable to evaluate husband’s contention that the trial court
improperly adopted the JDR court award amount in its own spousal support award. 6
Notwithstanding these omissions, the record that is before this Court reveals that the trial
court properly considered the statutory factors and did not use the pendente lite formula in
reaching the ultimate spousal support award at issue here. On remand, the trial court heard
evidence regarding each of the Code § 20-107.1(E) spousal support factors during hearings on
November 16, 2015 and February 8, 2016. In its April 25, 2016 final order, the trial court
concluded that “based on the factors the court is to consider for awarding spousal support the
evidence presented supports an award of spousal support to the plaintiff [wife] of $1,200 per
month.” The final order incorporated the trial court’s reasoning in its detailed February 11, 2016
opinion letter, which addressed the required factors set forth in Code § 20-107.1(E).7
6
At oral argument, counsel for both husband and wife for the first time acknowledged
that a worksheet containing the Code § 16.1-278.17:1 statutory formula was physically attached
to the JDR court order awarding wife spousal support, although they disagreed as to whether the
award itself was calculated using the statutory formula. As noted, however, neither the JDR
court award nor the worksheet are included in the record and thus are beyond the scope of this
Court’s review. Cf. Campbell, 2011 Va. App. LEXIS 264, at *27 n.3.
7
Code § 20-107.1(E) requires the trial court consider the following factors in making a
spousal support award:
1. The obligations, needs and financial resources of the parties,
including but not limited to income from all pension, profit
sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and
any special circumstances of the family;
5. The extent to which the age, physical or mental condition or
special circumstances of any child of the parties would make it
appropriate that a party not seek employment outside of the
home;
6. The contributions, monetary and nonmonetary, of each party to
the well-being of the family;
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Specifically, the trial court noted the following evidence in considering the statutory factors: that
wife has a gross monthly income of $1170 compared to husband’s gross monthly income of
$7222; that the marriage lasted fourteen years; that wife, who is fifty years old with only a high
school diploma, has been out of the job market for many years and is thus “limited in her job
prospects”; that wife has custody of the twin ten-year-old children; that wife worked to support
the family until husband earned his Ph.D., whereupon husband primarily supported the family
while wife cared for the children; that wife lives in a modestly priced apartment while husband’s
support payment history indicates he has the resources to pay support even after equitable
distribution awarded him most of the marital debt; that wife has taken only one vacation in the
four years since separation while husband has taken multiple trips to resorts and to international
7. The property interests of the parties, both real and personal,
tangible and intangible;
8. The provisions made with regard to the marital property under
§ 20-107.3;
9. The earning capacity, including the skills, education and
training of the parties and the present employment
opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved
for a party to acquire the appropriate education, training and
employment to obtain the skills needed to enhance his or her
earning ability;
11. The decisions regarding employment, career, economics,
education and parenting arrangements made by the parties
during the marriage and their effect on present and future
earning potential, including the length of time one or both of
the parties have been absent from the job market;
12. The extent to which either party has contributed to the
attainment of education, training, career position or profession
of the other party; and
13. Such other factors, including the tax consequences to each
party and the circumstances and factors that contributed to the
dissolution, specifically including any ground for divorce, as
are necessary to consider the equities between the parties.
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destinations; and that the divorce was granted on cruelty grounds after a pattern of husband’s
physical abuse culminating in him breaking wife’s arm in 2012.
Thus, based on the record before this Court, the trial court did not abuse its discretion in
awarding wife spousal support of $1200 per month because the evidence was sufficient to
support the trial court’s award.
D. Entry of support award after divorce decree
In assignment of error 8, husband contends that the trial court was without authority to
enter its April 25, 2016 final order awarding spousal support when the final divorce decree had
been entered June 9, 2014. This argument is without merit because the spousal support issue
arose from the divorce decree.
Throughout the protracted litigation in this case, husband has sought to reduce or
eliminate wife’s spousal support award. After the JDR court awarded wife spousal support,
husband apparently filed a motion to reduce, which he lost, and then a de novo appeal to the trial
court, which he also lost during the March 10, 2014 hearing.8 Husband then filed his motion to
decree spousal support on March 18, 2014 seeking a more favorable trial court ruling to
extinguish the JDR court’s award. The trial court ruled in a handwritten addendum to the June 9,
2014 divorce decree that “[Husband] moved for an award of spousal support which motion was
overruled as [wife’s] pleadings never requested spousal support. [Husband] objects.” In his
initial appeal to this Court from the divorce decree, husband’s tenth assignment of error stated:
“The Court erred in finding that it lacked authority to decree spousal support because the [wife]
did not request it in her pleadings.” Ozfidan, 2015 Va. App. LEXIS 148, at *13. This Court
agreed with husband and remanded for reconsideration of the spousal support issue. Id. at *29.
8
As noted previously, these proceedings are not documented in the record except for
references to them in the hearing transcripts and the parties’ briefs.
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The trial court’s April 25, 2016 final order awarding spousal support is thus the ultimate outcome
of this protracted litigation, constituting a ruling on husband’s original motion to decree spousal
support.
Husband’s position with respect to the present assignment of error constitutes a complete
reversal of the position he has held throughout the nearly three years the parties have litigated
spousal support. To hold now that the trial court lacked authority to decree spousal support after
entry of the divorce decree when husband objected to entry of that decree because it did not
address spousal support would be a manifest absurdity. Because the issue of spousal support
presented here arises from the June 9, 2014 divorce decree, this Court holds that the trial court
properly awarded wife spousal support in its April 25, 2016 final order.
E. Wife’s waiver of right to spousal support
In assignment of error 9, husband argues that wife waived any right to spousal support by
asking, in a motion dated March 20, 2014, that the trial court deny husband’s motion to decree
spousal support. This argument is also without merit.
“Waiver is the intentional relinquishment of a known right, with both knowledge of its
existence and an intention to relinquish it. . . . A waiver of legal rights will not be implied except
upon clear and unmistakable proof of an intention to waive such rights.” Roenke v. Virginia
Farm Bureau Mut. Ins. Co., 209 Va. 128, 135, 161 S.E.2d 704, 708-09 (1968) (quoting 19
Michie’s Jurisprudence, Waiver § 2). The facts at bar indicate that wife had no intent to
relinquish her right to spousal support. Wife’s opposition to husband’s motion to decree spousal
support was predicated on the belief that, absent a trial court ruling on spousal support, her
favorable JDR court support order would remain in effect, a position wife has consistently
maintained throughout this litigation. Only after this Court remanded the spousal support issue
to the trial court for reconsideration did wife, knowing that a trial court award would nullify the
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JDR court’s award, begin affirmatively seeking a spousal support award in the trial court.
Wife’s desire to receive an award of spousal support, either from the original JDR court order or
from the trial court, has remained constant throughout this litigation. Wife has done nothing to
suggest her intent to waive any right to spousal support. Further, husband’s reliance on Brown v.
Brown, 5 Va. App. 238, 361 S.E.2d 363 (1987), for the proposition that wife waived spousal
support is misplaced. In Brown, the divorce decree specifically left open the issue of spousal
support, but wife’s counsel stated in a subsequent proceeding, “Your Honor, we are not seeking
spousal support,” a position wife reiterated during her testimony. 5 Va. App. at 245, 361 S.E.2d
at 368. The facts before this Court indicate no such “clear and unmistakable proof of an
intention to waive” on wife’s behalf. Roenke, 209 Va. at 136, 161 S.E.2d at 709. Accordingly,
wife did not waive her right to spousal support.
F. Attorney’s fees and costs
Wife requests an award of attorney’s fees and costs pursuant to Rule 5A:30(b)(1), and
husband requests that the costs of producing unnecessary parts of the record be placed upon wife
pursuant to Rule 5A:25(g). This Court’s decisions regarding awards of attorney’s fees and costs on
appeal are discretionary. See Rule 5A:30(b)(2); Rule 5A:25(g). Factors this Court considers
include whether the requesting party prevailed, whether the appeal was frivolous, whether either
party generated unnecessary expense or delay in pursuit of its interests, as well as “all the
equities of the case.” Rule 5A:30(b)(3)-(4); see O’Loughlin v. O’Loughlin, 23 Va. App. 690,
695, 479 S.E.2d 98, 100 (1996). The litigation here, while protracted, was not frivolous but
instead addressed appropriate and substantial issues. This Court therefore declines to grant
wife’s request for attorney’s fees and costs. Although the record in this case was far from
exemplary, this Court likewise finds that assessing a penalty on wife pursuant to Rule 5A:25(g)
is inappropriate.
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IV. CONCLUSION
For the foregoing reasons, this Court affirms the trial court’s April 25, 2016 award of
spousal support to wife.
Affirmed.
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