COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Powell and Senior Judge Clements
MICHAEL LLOYD HARRISON
MEMORANDUM OPINION *
v. Record No. 2439-09-1 PER CURIAM
APRIL 27, 2010
DEBORAH KAY GARRETT HARRISON
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Marjorie A. Taylor Arrington, Judge
(Stephen P. Givando; Erin Evans-Bedois; MacDonald, Plumlee &
Overton, P.C., on brief), for appellant.
(Gregory S. Larsen; Roy, Larsen, Carnes & Romm, P.C., on brief),
for appellee.
Michael Lloyd Harrison (husband) appeals a final decree in which Deborah Kay Garrett
Harrison (wife) was awarded spousal support and attorney’s fees. Husband argues that the trial
court erred by (1) awarding spousal support to wife because (a) wife included expenses for their
adult children as a basis for spousal support, (b) husband’s expenses outweighed his income, and
(c) the award was more than wife requested; (2) setting the effective date for the spousal support
award; and (3) awarding attorney’s fees to wife. 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. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
The parties married on July 13, 1985, separated on March 10, 1997, and divorced on
October 21, 2009. The parties had two children, both of whom were emancipated at the time of the
final hearing.
In 2003, husband filed a bill of complaint for divorce, and wife responded with an answer
and cross-bill. The parties reached an agreement on all of the issues in the case, except for spousal
support and attorney’s fees. On December 12, 2008, the trial court heard evidence and argument
from the parties. On June 24, 2009, the trial court issued a letter opinion. After considering the
factors in Code § 20-107.1, the trial court awarded spousal support to wife in the amount of $300
per month and awarded wife $1,000 in attorney’s fees. The trial court entered the final decree on
October 21, 2009, and husband timely noted his appeal.
ANALYSIS
Spousal Support Award
Husband argues that the trial court abused its discretion in awarding spousal support to wife.
He argues that the trial court considered expenses for the parties’ adult children in setting the
spousal support award and awarded wife more than she requested. He also contends the trial court
did not consider his ability to pay spousal support.
A trial court has broad discretion in awarding spousal support, and its ruling will not be
overturned unless there is an abuse of discretion. Brooks v. Brooks, 27 Va. App. 314, 317, 498
S.E.2d 461, 463 (1998) (citations omitted). “We will not disturb the trial court’s decision where
it is based on an ore tenus hearing, unless it is ‘plainly wrong or without evidence in the record
to support it.’” Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).
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In awarding spousal support, a trial court must consider the factors in Code § 20-107.1(E);
however, “[t]his does not mean that the trial court is required to quantify or elaborate exactly
what weight or consideration it has given to each of the statutory factors. It does mean, however,
that the court’s findings must have some foundation based on the evidence presented.” Woolley
v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
In its letter opinion, the trial court considered the Code § 20-107.1 factors before awarding
$300 per month in spousal support to wife. The trial court noted that wife’s health and health
insurance were “important factor[s] in this case.” Wife had several health issues, including
diabetes, high blood pressure, and thyroid cancer. In addition to the spousal support award, the trial
court ordered husband to maintain health insurance for wife “provided such coverage is available
through [his] employment.” (Emphasis added.) Husband testified that after they divorce, wife
would need to obtain her own health insurance. Wife testified that the health insurance available to
her at her employment does not provide as good of coverage as husband’s insurance, so her
expenses will increase. Husband argues that wife’s request for spousal support only included
sufficient funds to pay for health insurance, and the trial court ordered more than what wife
requested. The trial court “carefully considered the necessary factors and based [its]
determination not on a specific dollar amount, but upon the evidence presented and the relative
needs of the parties and their ability to pay.” Joynes v. Payne, 36 Va. App. 401, 423, 551 S.E.2d
10, 21 (2000).
Furthermore, husband argues that the trial court did not weigh his ability to pay against
wife’s need for spousal support. He stated that he was not living the same type of lifestyle that he
did during the marriage because he had to borrow money to manage his expenses. However, the
trial court noted that since the separation, he was able to purchase a house, while wife continued to
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live in the former marital residence owned by her parents and which needed “costly repairs.” Wife
was working two jobs and had a need for support due to her health problems.
Husband contends wife did not need spousal support because the parties were separated for
a period of twelve years before wife requested spousal support. He insisted that wife’s request for
spousal support was based on the children’s educational expenses and other living expenses.
Husband asserted that wife’s income and expense statement included numerous expenses for the
children, and if the trial court subtracted those expenses from her statement, she would not need
spousal support. The trial court disagreed.
The trial court did not abuse its discretion in awarding wife $300 per month in spousal
support because it considered the factors in Code § 20-107.1, and the evidence supports the spousal
support award.
Effective Date of Spousal Support
Husband argues that the trial court erred in setting the effective date for the spousal support
award. The trial court’s letter opinion stated that husband would start paying spousal support to
wife on the first day of the month following the entry of the final decree. There was a handwritten
change to the final decree, which indicated that the spousal support payments would begin on July
1, 2009. Appellee’s counsel initialed the change, but appellant’s counsel did not. Appellant argues
that it was error to change the commencement date.
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he principles of law,
the argument, and the authorities relating to each question presented . . . .” Husband did not
comply with Rule 5A:20(e) because his opening brief did not contain any principles of law or
citation to legal authorities to fully develop his argument.
Husband has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
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error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
We find that husband’s failure to comply with Rule 5A:20(e) is significant, so we will not
consider question presented 2. See Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857,
866 (2008) (“If the parties believed that the circuit court erred, it was their duty to present that
error to us with legal authority to support their contention.”); Parks v. Parks, 52 Va. App. 663,
664, 666 S.E.2d 547, 548 (2008).
Attorney’s Fees
Appellant argues that the trial court abused its discretion in awarding attorney’s fees to wife.
The trial court awarded $1,000 in attorney’s fees to wife. Wife incurred approximately $5,428 in
attorney’s fees and costs, while husband incurred approximately $2,033.31.
“‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30
Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,
357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness
under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272,
277, 338 S.E.2d 159, 162 (1985).
Based on the circumstances, the trial court did not abuse its discretion in awarding $1,000 to
wife for her attorney’s fees.
Both parties have requested an award of attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Given that wife
prevailed and husband’s arguments were substantially without merit, we deny husband’s request
for attorney’s fees and hold that wife is entitled to a reasonable amount of attorney’s fees and
costs. See Rogers v. Rogers, 51 Va. App. 261, 274, 656 S.E.2d 436, 442 (2008). We remand for
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the trial court to set a reasonable award of attorney’s fees and costs incurred by wife in this
appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed and remanded.
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