George A. Roussel IV v. Patricia A Roussel ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
GEORGE A. ROUSSEL, IV
MEMORANDUM OPINION *
v. Record No. 1562-02-3 PER CURIAM
NOVEMBER 5, 2002
PATRICIA A. ROUSSEL
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
(Stephen G. Cochran; Womble Carlyle
Sandridge & Rice, PLLC, on brief), for
appellant.
(David A. Penrod; Hoover, Penrod, Davenport &
Crist, on brief), for appellee.
George A. Roussel, IV appeals the trial court's award of
spousal support to Patricia A. Roussel. On appeal, husband
contends the trial court abused its discretion in awarding spousal
support for an indefinite period of time and in determining the
amount of spousal support. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Rule 5A:27. Accordingly, we affirm the judgment of the trial
court.
BACKGROUND
"On review, we consider the evidence in the light most
favorable to the party prevailing in the trial court."
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
31 (1989). The trial court made the following findings concerning
the couple's lifestyle:
Irrespective of what may be said, [husband's
attorney]'s minimizing of it, and it is true
that it is probably not a lifestyle that
would make headlines in the lives of the
rich and famous, but it certainly is by
community standards a very luxurious
lifestyle. A twin engine airplane.
Apparently a very fancy cabin cruiser or
fishing troller or yacht that they used.
Trips to the Carribean. Trips to Mexico.
And even the fact that they may have been
paid in whole or in part by drug companies
does not take away from the fact that it
established a certain level of a certain
lifestyle during the course of the marriage.
In that regard the [c]ourt finds that the
lifestyle was quite opulent. And although
they did exercise frugalities in order to
obtain some of these more expensive luxuries
they nevertheless had a good lifestyle.
In its decision announced from the bench, the trial court
stated that it considered the factors in Code § 20-107.1(E) in
determining the support award. The trial court also reviewed
its reasons for awarding wife $2,250 per month in support,
payable until the death of one of the parties, wife's
remarriage, or other statutory basis upon which the support
could be terminated.
ANALYSIS
"In awarding spousal support, the [trial court] must consider
the relative needs and abilities of the parties. [The court] is
guided by the . . . factors that are set forth in Code § 20-107.1.
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When the [trial court] has given due consideration to these
factors, [its] determination will not be disturbed on appeal
except for clear abuse of discretion." Collier v. Collier, 2
Va. App. 125, 129, 341 S.E.2d 827, 829 (1986). "'In fixing the
amount of the spousal support award, . . . the court's ruling will
not be disturbed on appeal unless there has been a clear abuse of
discretion. We will reverse the trial court only when its
decision is plainly wrong or without evidence to support it.'"
Moreno v. Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794
(1997) (citation omitted).
The record clearly reflects the trial court considered the
statutory factors in Code § 20-107.1, with emphasis upon those
factual findings deemed pertinent to the decision, all of which
were well supported by the evidence. The court indicated it
considered husband's adultery, the financial resources of the
parties, the lifestyle of the parties during the marriage, the
length of the parties' marriage, the monetary and non-monetary
contributions of each party, the property interests of each party,
and the earning capacity of each party in its determination of the
award. The trial court's decision was based upon the required
factors.
Husband argues that the trial court failed to consider the
parties' respective obligations and needs. Both parties
introduced numerous exhibits into evidence consisting of
documentation and affidavits addressing their financial
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circumstances. Furthermore, the trial court specifically found
that husband had "significantly more resources" than wife "in
terms of assets." The court also concluded that husband had the
ability to generate income that was three to four times the income
of wife. The trial court's rulings were not plainly wrong or
without evidence to support them.
Husband contends the trial court abused its discretion in
finding that the parties led a luxurious lifestyle during the
marriage. However, the trial court found that "by community
standards," the parties led a "very luxurious lifestyle." The
parties stipulated that wife's income was $40,000 per year. At
the time of the divorce, husband was self-employed as a medical
doctor. The trial court found that husband's income was $144,000
per year. Furthermore, the evidence showed that the parties lived
in a large house located on thirty-five acres of land, owned an
airplane, owned a cabin cruiser which was docked near the
Chesapeake Bay, traveled extensively, and divided property valued
at over one million dollars. This evidence clearly supported the
trial court's findings.
Husband asserts the trial court relied "overwhelmingly" on
his marital fault and used the spousal support award to punish
him. We find no support for this allegation. While the trial
court stated that husband's adultery tipped the scale in favor
of wife, the trial court listed numerous other factors it
considered in determining the spousal support award, including
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the lifestyle of the parties during the marriage and the
discrepancy in the incomes of the parties.
Husband argues the trial court failed to consider his
actual ability to pay spousal support. Husband introduced into
evidence financial documents and affidavits showing his expenses
and financial circumstances. In addition, the trial court
specifically found that husband's "earning capacity is such that
he has a substantial ability to make payments." Therefore, the
record indicates the trial court considered this factor.
Husband contends the trial court abused its discretion in
awarding support for an indefinite period of time. "[Code
§ 20-107.1] does not require the trial court to specify the date
of termination of a 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). Therefore, the trial court did not abuse
its discretion.
Husband argues the trial court abused its discretion in
determining the amount of the support award. As stated above,
the trial court carefully considered the necessary factors and
based its determination upon the evidence presented, the
relative needs of the parties, and their ability to pay. The
trial court's decision is well supported by the evidence.
Wife has requested that we remand to the trial court the
issue of whether she is entitled to recover her attorney's fees
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and costs incurred in this appeal. Upon consideration of the
entire record in this case, we hold that wife is entitled to a
reasonable amount of attorney's fees and costs, and we remand
for the trial court to set a reasonable award of costs and
counsel fees incurred in this appeal.
For the foregoing reasons, we affirm the trial court and
remand to assess the wife's reasonable attorney fees for this
appeal.
Affirmed and remanded.
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