COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
HAMPTON JEFF TURNER, JR.
MEMORANDUM OPINION *
v. Record No. 2926-02-3 PER CURIAM
APRIL 29, 2003
PATRICIA LAYMAN TURNER
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
(Barry M. Tatel; Neil E. McNally; Key,
Tatel & McNally, P.C., on brief), for
appellant.
(William C. Maxwell; Osterhoudt, Prillaman,
Natt, Helscher, Yost, Maxwell & Ferguson,
PLC, on brief), for appellee.
Hampton Jeff Turner, Jr. (husband) appeals from a final
decree of divorce. On appeal, he contends the trial court abused
its discretion in awarding Patricia Layman Turner (wife) spousal
support and attorney's fees. Upon reviewing the record and the
briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm this appeal. See Rule 5A:27.
BACKGROUND
The parties were married in November 1990. They had
previously been married to each other. During the marriage, wife
experienced numerous health issues and several surgical
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
operations, including one to remove defective breast implants.
Wife also suffered from fibromyalgia, chronic fatigue, migraine
headaches, and sleep disorders. Wife testified that, due to her
health problems, she became unable to work in her occupation as a
hair stylist, and she applied for disability benefits. At the
time of the hearing, wife was receiving $637 per month in social
security disability benefits. Wife turned sixty-two years old in
the year 2002.
Wife received a $75,000 settlement payment from a lawsuit
regarding the defective breast implants. Wife stated that she
spends $500 per month on medications, and she estimated her total
monthly living expenses were $2,308. After the parties separated,
wife purchased a new house using some of the money from the breast
implant settlement and a loan from her father.
At the July 16, 2002 hearing, wife testified that after she
stopped working, husband's attitude changed. He often called her
a "bitch," and they argued frequently. Wife also stated that the
five acres on which the couple lived had once been a beautiful,
natural property. However, husband accumulated 124 old cars,
numerous car parts, and piles of tires on the property. He also
acquired a bus full of bicycles, a sixty-foot trailer, and he had
filled the garages with numerous items. Wife asked husband to
clean up the property, but he never did. Husband also put plywood
over some of the windows in the house several years ago as
protection against a hurricane, and he never removed the wood
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despite wife's repeated requests. Photographs and a videotape of
the property were admitted into evidence.
Wife testified that husband had no respect for her attempts
to keep the house clean and he often entered the house wearing
dirty, greasy clothes. Wife stated that husband wore dirty shoes
to bed, leaving dirt and gravel in the bed.
Wife testified that she attempted to work on the marriage
and, for a while, the couple attended a marriage program at a
church. At one point, wife asked husband if he wanted her to stay
and he replied, "Hell, no. I want your ass out of here." Wife
moved out of the marital residence on January 16, 2001.
Wife testified that she attempted to settle the divorce
amicably, and had made husband a settlement offer. However,
husband refused to settle, stating, "I'm going to let the judge
decide."
Husband retired from his job in 1997 when he was in his
mid-fifties, and he receives $1,677 per month in retirement
benefits. He testified that wife continues to cut hair, although
she is not employed at a beauty salon. He stated that he has had
to borrow money in order to pay wife the pendente lite spousal
support award of $500 per month. Husband agreed that he and wife
often argued during the marriage.
The trial court found that husband was verbally abusive to
wife, called her "bitch," and was demeaning to her. In its
opinion letter of July 19, 2002, the court found that wife was
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justified in leaving the marital home after husband told her he
wanted her "ass out of here." The trial court awarded wife a
divorce on the grounds of desertion. The trial court further
found that wife had established a need for spousal support, but
husband had "limited means to provide support." The court awarded
wife a lump sum spousal support payment of $7,500 to be paid upon
the division of the parties' real property. The trial court found
that the majority of the marital estate was in real property and
was valued at $169,474. The court ordered that the marital estate
be divided equally among the parties. In addition, the court
awarded wife $4,000 in attorney's fees.
ANALYSIS
"The court, in its discretion, may decree that maintenance
and support of a spouse be made in periodic payments, or in a lump
sum award, or both." Code § 20-107.1.
"Whether and how much spousal support will be awarded is a
matter of discretion for the trial court." Barker v. Barker, 27
Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). "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."
Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)
(citations omitted).
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Husband asserts that the trial court erred in awarding wife
spousal support because the award was premised on the finding that
husband constructively deserted wife. Husband then argues that
the evidence did not support a finding of constructive desertion.
However, husband did not present this argument to the trial court.
Rather, husband noted his objections on the final divorce decree
as follows: "I object to the allowance of spousal support,
attorney's fees, and the equitable distribution award." Thus,
husband did not challenge the trial court's finding that he
deserted the marriage.
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration
of this question on appeal. Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Furthermore, the record indicates that the trial court did
not base the spousal support award solely on the finding that
husband deserted the marriage. Rather, in its July 19, 2002
opinion letter addressing spousal support, the trial court
referenced its other July 19, 2002 opinion letter regarding
equitable distribution and the factors listed in Code
§ 20-107.1. In the opinion letter concerning equitable
distribution, the trial court specifically addressed many of the
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factors listed in Code § 20-107.1, including the duration of the
marriage, the parties' ages and physical conditions, the
property interests of the parties, the standard of living during
the marriage, the contributions of each party to the marriage,
the distribution of the marital property, and the earning
capacities of the parties. Thus, the trial court considered the
relevant factors listed in Code § 20-107.1 in making the spousal
support award.
Moreover, because husband had "limited means" to provide
spousal support and because the majority of the marital estate
consisted of real property, the evidence supported the trial
court's award of a lump sum payment to wife to be made upon the
division of the marital property. Accordingly, the trial court
did not abuse its discretion in awarding wife spousal support.
Husband argues that the trial court abused its discretion in
awarding wife $4,000 of her attorney's fees. Wife asserts that
she incurred over $9,000 in attorney's fees and costs due to
husband's lack of cooperation during the divorce.
"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). 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).
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Wife testified that she attempted to settle the divorce
amicably and husband refused to settle. Based on the
circumstances of this case, we cannot say the trial court abused
its discretion in awarding wife $4,000 of her attorney's fees.
Therefore, we summarily affirm the decision of the trial
court.
Affirmed.
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