COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
DENNIS GLEN GRAY BULLINS
MEMORANDUM OPINION *
v. Record No. 2303-97-3 PER CURIAM
JUNE 2, 1998
DREAMA DAWN WITT BULLINS
FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge
(James T. Ward, on briefs), for appellant.
(Cheryl Watson Smith; G. Marshall Mundy;
Mundy, Rogers & Frith, on brief), for
appellee.
Dennis Glen Gray Bullins appeals the decision setting the
amount of spousal support paid to his wife, Dreama Dawn Witt
Bullins. He contends that the trial judge erred by awarding wife
more support than she sought. In a cross appeal, the wife
contends that the trial judge erred by failing to award her
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.
See Rule 5A:27.
A commissioner in chancery heard the evidence and
recommended $1,000 per month spousal support. The trial judge
ordered the recommended amount. On appeal, we apply the
following standards:
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The commissioner's report is deemed to be
prima facie correct. The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . . to
see, hear and evaluate the witness at first
hand." Because of the presumption of
correctness, the trial judge ordinarily must
sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted).
The wife's evidence proved that her monthly expenses totaled
approximately $2,300, which included an estimated cost for
replacing her ten-year-old car. At the commissioner's hearing,
the wife testified that she ceased contributing ten percent of
her salary to her 401(k) retirement plan because she could not
afford to do so. She noted that she would incur additional costs
for real estate taxes and insurance which she was not currently
paying. She also testified that she could only afford to replace
her vehicle "if [she] was tight with money" and "just cut down on
some other things."
The commissioner found wife's listed expenses to be
reasonable. Although the commissioner noted that the wife had
expressed her thought that $750 would be sufficient spousal
support, the commissioner determined that wife's gross monthly
earnings were $1,264. Based on these considerations and the
statutory criteria, the commissioner ruled that a spousal support
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award of $1,000 was appropriate.
The evidence supports the trial judge's adoption of the
commissioner's recommendations.
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986). The evidence clearly proved that wife's monthly earnings
fell approximately $1,000 short of her monthly expenses. Because
the commissioner's award was based upon the statutory factors and
was supported by the evidence, we find no error.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial judge and is reviewable on appeal
only for an abuse of discretion. See 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. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985). The record indicates that the wife
listed attorney's fees among her monthly expenses. In addition,
the trial judge noted that wife used $12,000 from the parties'
joint checking account to pay her expenses, which included legal
fees. Under the circumstances, we cannot say that the trial
judge abused his discretion in refusing to award attorney's fees
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to wife.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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