David M. Bromley v. Vicki D. Bromley ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
DAVID M. BROMLEY
MEMORANDUM OPINION *
v. Record No. 1905-96-2 PER CURIAM
FEBRUARY 18, 1997
VICKI D. BROMLEY
FROM THE CIRCUIT COURT OF RICHMOND COUNTY
Joseph E. Spruill, Jr., Judge
(Gordon A. Wilkins; Wilkins & Davison, on
brief), for appellant.
(William R. Curdts; Dunton, Simmons & Dunton,
on brief), for appellee.
David M. Bromley (husband) appeals the decision of the
circuit court setting the amount of spousal support paid to Vicki
D. Bromley (wife) and deciding other issues. On appeal, he
contends that the trial court erred in (1) finding him in
contempt, (2) finding wife to be unable to hold gainful
employment, (3) continuing wife's spousal support, (4) failing to
consider all the spousal support statutory factors, and (5)
awarding wife attorney's fees. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the
trial court. Rule 5A:27.
I.
A trial court "has the authority to hold [an]
offending party in contempt for acting in bad
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
faith or for willful disobedience of its order."
In a show cause hearing, the moving party need
only prove that the offending party failed to
comply with an order of the trial court. The
offending party then has the burden of proving
justification for his or her failure to comply.
Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669
(1991) (citation omitted).
By order of the juvenile and domestic relations district
court, husband was responsible for payment of the parties'
mortgage, insurance and taxes. The circuit court reaffirmed
husband's obligation for those payments in its July 24, 1995
order. Nevertheless, husband unilaterally discontinued those
payments after that date. The marital home was lost due to
foreclosure. Husband's failure to pay personal property taxes
barred wife from obtaining the necessary county decal for her
automobile.
Husband did not seek court approval before stopping the
payments. The trial court found that husband lacked sufficient
justification for his failure to make the payments. We find no
error in the trial court's decision finding husband in contempt.
Husband also contends that wife failed to demonstrate she
suffered harm because he failed to comply with the court order.
We find no evidence that husband raised this argument below and
we will not consider it for the first time on appeal. Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18).
2
II.
Evidence introduced in the trial court demonstrated that
wife suffered from Epstein-Barr Chronic Fatigue and fibromyalgia.
She had not worked in twelve years. Husband conceded that wife
had medical problems during the marriage. The trial court found
that "the evidence before me is that she's not physically able to
work. Her health doesn't permit it. So I'm sort of bound by
that testimony, and it's somewhat convincing because of the fact
that for 12 years she has not worked." As evidence in the record
supports the trial court's conclusion, husband's claim that the
court erred in finding wife was not able to work is without
merit.
III.
Husband concedes that wife is entitled to spousal support,
but argues on appeal that the amount of $600, when combined with
the children's support and medical insurance, is grossly unfair
based upon his earnings.
Where a claim for support is made by a party
who has been held blameless for the marital
breach, the law imposes upon the other party
a duty, within the limits of his or her
financial ability, to maintain the blameless
party according to the station in life to
which that party was accustomed during the
marriage.
Gamble v. Gamble, 14 Va. App. 558, 573-74, 421 S.E.2d 635, 644
(1992).
While the court did not expressly so state, it is readily
apparent from the record and from the court's final decision that
3
it found a material change in the parties' circumstances
warranting modification of the spousal support payment. The
trial court considered the parties' current incomes and expenses
before modifying husband's spousal support payments. While the
court increased the spousal support payable to wife from $150 to
$600 a month, it relieved husband of any additional
responsibilities for wife's expenses, including wife's medical
insurance. Husband's responsibility for the mortgage payments
also no longer existed. The net result was a reduction in
husband's monthly financial obligations to wife and the parties'
children. Husband also acknowledged that he shared living
expenses and income with his live-in companion.
We cannot say the court's decision balancing wife's needs
for support against husband's ability to pay was clearly
erroneous or an abuse of its discretion.
IV.
Husband contends that the trial court failed to consider the
ability of wife to seek employment and that, as a result, its
determination of the amount of spousal support was reversible
error. On the contrary, the record demonstrates that the trial
court found credible the evidence that wife was not able to work.
Therefore, husband's argument is without merit.
V.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
4
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). Appellant argues that because the divorce decree entered
April 10, 1995 was silent as to attorney's fees, the issue was
not reserved and the court lacked authority to award fees
incurred prior to the July 10, 1995 hearing. Appellant further
contends that the record is insufficient to demonstrate when the
awarded fees were incurred.
Wife requested attorney's fees in her motion for contempt
and support modification. The evidence demonstrated that, since
the time of the July 10, 1995 hearing, wife incurred attorney's
fees in connection with the foreclosure, husband's bankruptcy,
and the pending motion. Wife's counsel indicated that the
outstanding fees as of the date of the hearing were $6,000. The
court awarded $2,500.
Husband cites Dixon v. Pugh, 244 Va. 539, 423 S.E.2d 169
(1992), in support of his contention that the court's failure to
reserve jurisdiction over attorney's fees in the final decree
barred it from awarding fees. However, Dixon dealt with the
failure to reserve jurisdiction over spousal support, the right
to which is strictly a creation of statute. Id. at 543, 423
S.E.2d at 170-71. That case is inapposite.
The circuit court had authority to award attorney's fees in
5
a matter properly before it. Cf. Fairfax County Dep't of Human
Dev. v. Donald, 251 Va. 227, 467 S.E.2d 803 (1996). Husband's
income was substantially higher than wife's, and his actions had
caused wife to incur fees relating to bankruptcy and foreclosure.
Therefore, we cannot say that the award was unreasonable or that
the trial judge abused his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
6