COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
KATHERINE FRAZIER BROOKS
OPINION BY
v. Record No. 1312-97-2 JUDGE NELSON T. OVERTON
MAY 5, 1998
WILLIAM CONGDON BROOKS
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Deanna D. Cook (Bremner & Janus, on brief),
for appellant.
Robert C. Elliott, II (Rebecca E. Duffie; The
Elliott Law Firm, on brief), for appellee.
Katherine Brooks appeals a divorce decree awarding her
spousal support for two years. She does not contest the amount
of spousal support but argues the trial court erred by limiting
the duration of the award to two years. Both parties seek
attorney's fees and costs. Because we agree that the trial court
erred in limiting the award but properly exercised its
discretionary authority when denying an award of counsel fees, we
affirm in part and reverse in part.
I. Background
The facts are not in dispute and bear little relevance to
the legal questions presented by this appeal. Katherine Frazier
Brooks (wife) and William Congdon Brooks (husband) were married
on June 28, 1980. The parties have two children, Amanda and Adam
Brooks. Wife married husband when she was nineteen years old.
She possessed a high school degree and one year of secretarial
school training at the time of the marriage. Her role during the
marriage was to raise their children and maintain the marital
home. At the time of the divorce, wife was thirty-six years old
and in good health. She is training at a community college to be
a Radiology Technician. She also works twenty-five hours a week
at a clothing store and has custody of both children. Her
monthly income, apart from the support awards, is six hundred and
fifty-eight dollars.
Husband was the primary monetary contributor to the
marriage, working for several companies during his career before
his current employment with Kromacorp. He accumulated retirement
funds, a company car and other fringe benefits. Husband is still
working and lives with his mother. His monthly income is seven
thousand and ninety-five dollars.
On October 25, 1995, husband filed for divorce based on
cruelty under Code § 20-91(A)(6) and wife responded with answer
and cross-bill, also alleging cruelty. The trial court reviewed
the parties' depositions, evidence and ore tenus testimony and
granted the parties a final decree of divorce a vinculo
matrimonii on May 7, 1997, pursuant to Code § 20-91(A)(9). The
decree settled all issues of equitable distribution, custody,
visitation, support and counsel fees.
In a letter opinion issued February 19, 1997, the trial
court awarded wife spousal support of six hundred dollars a month
for twenty-four months. Upon request of the parties for
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clarification, the trial court issued a supplemental letter
opinion in which it stated,
The Court found that Mrs. Brooks is in need
of spousal support and that Mr. Brooks has
the ability to provide support. The Court
therefore found it reasonable under the
evidence presented to award $600.00 per month
in spousal support to Mrs. Brooks for a
period of 24 months. The Court further held
that the parties may request a review sooner
if Mrs. Brooks becomes employed full-time or
her income increases. The spousal support
award is a monthly award, which is not to be
construed as a lump sum award. Mrs. Brooks
is entitled to such amount for a period of 24
months if neither party requests a review
based on a change in circumstances. At the
end of the 24 month period, Mrs. Brooks shall
have the right to petition for a continuance
or modification of support based on the
circumstances at the time.
Neither the letter opinions nor the divorce decree provide
further insight into the trial court's rationale for the two-year
limit.
II. Spousal Support
A trial court has broad discretion in setting spousal
support and its "determination 'will not be disturbed except for
a clear abuse of discretion.'" Dodge v. Dodge, 2 Va. App. 238,
246, 343 S.E.2d 363, 367 (1986) (quoting Thomasson v. Thomasson,
225 Va. 394, 398, 302 S.E.2d 63, 66 (1983)). Wife contends the
automatic termination of her support threatens her welfare and
that of her children for no identifiable reason. We agree that
this arbitrary restriction is improper. See Papuchis v.
Papuchis, 2 Va. App. 130, 133, 341 S.E.2d 829, 831 (1986).
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Thomas v. Thomas, 217 Va. 502, 504-05, 229 S.E.2d 887, 889-90
(1976), is directly, and remarkably, similar to the instant
matter. In Thomas, the Supreme Court of Virginia held the trial
court could not limit the duration of spousal support payments to
only two years without evidence that the recipient's need for
support or the payor's ability to make support payments would
change during the "immediate or reasonably foreseeable future."
Id. Thomas has frequently been cited with approval by the
Supreme Court of Virginia and this Court. See, e.g., Jacobs v.
Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979); Johnson v.
Johnson, 25 Va. App. 368, 375, 488 S.E.2d 659, 663 (1997); Young
v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986).
The only justification husband offers for terminating
support is that in two years the parties' daughter and son will
be fourteen and eleven years old, respectively. Apparently, upon
entering early adolescence the children will require less time of
wife and wife will be more able to secure full-time employment.
As any parent can attest, this reasoning is deeply flawed and
provides an insufficient basis for the award. The record before
us is devoid of any other indication that husband's or wife's
circumstances will change in two years. Accordingly, we reverse
the imposition of the two-year limitation. If the parties'
circumstances change in the future, they may seek modification
pursuant to Code § 20-109.
We also feel it necessary to reiterate and reaffirm a
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principle critical to the maintenance of our governmental
separation of powers: when a law has been considered by the
legislature and rejected, the courts should follow the
legislative intent evidenced by the rejection and refrain from
adopting that law by judicial action. See Commonwealth v.
Gregory, 193 Va. 721, 726, 71 S.E.2d 80, 83 (1952) ("To declare
what the law is, or has been, is a judicial power; to declare
what the law shall be is legislative."); Merrillat Industries v.
Parks, 15 Va. App. 44, 49-51, 421 S.E.2d 867, 869-71 (1992). The
availability of "rehabilitative" spousal support has been
considered by the Virginia General Assembly, rejected, and was
only recently reconsidered by the General Assembly and signed
into law by the Governor. H.B. 517, 1st Sess. (Va. 1998).
However, at the time this case was brought rehabilitative support
was not available, and the trial court should not have
manufactured it by judicial fiat. See also Sullivan v. Hudson,
490 U.S. 877, 899 (1989) (White, J., dissenting) ("Our duty is to
apply statutes as they were enacted by [the legislature], not to
take it upon ourselves to overcome the 'political realities' that
blocked what we might consider to be good legislation.").
III. Attorney's Fees
"An 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." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987) (citing Ingram v. Ingram, 217 Va.
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27, 29, 225 S.E.2d 362, 364 (1976)). "The key to a proper award
of counsel fees is reasonableness under all the circumstances."
Lightburn v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285
(1996) (citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985)). The facts of this case evince no
unusual circumstances such as bad faith or gross disparity of
financial resources which would warrant disturbance of the trial
court's judgment. See L.C.S. v. S.A.S., 19 Va. App. 709, 721,
453 S.E.2d 580, 587 (1995). We, therefore, affirm the trial
court's order denying counsel fees.
IV. Conclusion
That portion of the trial court's spousal support award
which limited payments to two years is reversed and the case is
remanded to the trial court for reconsideration not inconsistent
with this opinion. The order denying counsel fees is affirmed.
Affirmed in part,
reversed in part,
and remanded.
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