Vicki R. Mabie v. Richard E. Mabie ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
VICKI R. MABIE
MEMORANDUM OPINION * BY
v. Record No. 0729-01-4 JUDGE NELSON T. OVERTON
MARCH 19, 2002
RICHARD E. MABIE
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Westel, Jr., Judge
Richard L. Downey (Eric W. Trucksess; Law
Offices of Richard L. Downey & Associates, on
brief), for appellant.
Michael V. Greenan for appellee.
Vicki R. Mabie (wife) appeals from a final decree of divorce
from Richard E. Mabie (husband). The circuit court awarded wife
support of $600 per month for a period of six years. On appeal,
wife contends the trial court abused its discretion by (1) denying
her request for permanent spousal support, and (2) failing to
award a permanent reservation of rights to spousal support. For
the reasons that follow, we affirm the decree, with the exception
of the denial of a reservation of right for spousal support.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
The parties married in January 1972, separated on April 18,
1999, and were divorced by a final decree entered on February
20, 2001. Three children were born to the couple, one of whom
is under the age of eighteen. Wife requested permanent spousal
support, and the court awarded her support for a period of six
years. Wife also requested a reservation of right for support.
Analysis
I.
Wife contends the trial court abused its discretion by not
awarding her permanent spousal support. She argues the court
failed to consider all the factors enumerated in Code
§ 20-107.1(E) in its determination of spousal support. "The
determination whether a spouse is entitled to support, and if so
how much, is a matter within the discretion of the court and
will not be disturbed on appeal 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) (citations omitted). However,
the trial court's discretion must not be exercised without
reference to Code § 20-107.1, which "commands that, in order to
exercise its discretion, '[t]he court shall . . . consider' the
specific factors contained therein. Failure to do so is
reversible error." Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d
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89, 90 (1980) (citation omitted). In reviewing the disputed
decision, "[w]e assume that the [court] followed the statutory
mandate," and the trial judge need not assign a weight to each
among the several factors, provided related evidence is before
the court. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 161 (1985).
The trial court clearly stated its decision was based upon
the required factors. The court also indicated it considered
the length of the parties' marriage, wife's earning capacity,
and her present needs in its determination of the $600 monthly
support award. The trial court considered the relevant factors
listed in Code § 20-107.1, and we find no abuse of discretion in
its award of limited spousal support to wife.
II.
Wife argues the trial court abused its discretion by
denying her request for a reservation of rights for support.
Code § 20-107.1(D) provides:
In addition to or in lieu of an award . . .
the court may reserve the right of a party
to receive support in the future. In any
case in which the right to support is so
reserved, there shall be a rebuttable
presumption that the reservation will
continue for a period equal to fifty percent
of the length of time between the date of
the marriage and the date of separation.
Once granted, the duration of such a
reservation shall not be subject to
modification.
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The parties were married for twenty-eight years, a factor
which the trial court considered in its award of spousal
support. The court provided wife with a reservation of right
for support for a six-year period to run concurrently with the
period support payments are due from husband. There was no
evidence before the court rebutting the presumption that the
reservation shall run for the period of time specified by
statute. Accordingly, we remand the decree to the trial court
for a modification to include a reservation of right to seek
future modification for the statutorily prescribed time period.
Affirmed in part,
reversed in part,
and remanded.
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