COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
AMERICA E. EARL
v. Record No. 0432-95-4 MEMORANDUM OPINION *
PER CURIAM
EDWIN O. EARL SEPTEMBER 19, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
(John M. DiJoseph, on brief), for appellant.
(D. Alan Nunley, on brief), for appellee.
America E. Earl (wife) appeals the decision of the circuit
court awarding her $75,000 as her share of the marital property
and awarding her $450 per month in spousal support. Wife argues
that the trial court erred in finding that she made less
contributions to the marriage than Edwin O. Earl (husband) and
erred in failing to recognize wife's need for more support. 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. Rule 5A:27.
Equitable Distribution
"[T]he chancellor is necessarily vested with
broad discretion in the discharge of the
duties the statute [Code § 20-107.3] imposes
upon him. Unless it appears from the record
that the chancellor has abused his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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discretion, that he has not considered or has
misapplied one of the statutory mandates, or
that the evidence fails to support the
findings of fact underlying his resolution of
the conflict in the equities, the
chancellor's equitable distribution award
will not be reversed on appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted). The trial court's letter opinion
detailed its consideration of the factors contained in Code
§ 20-107.3(E). Based upon those statutory factors, the court
concluded that husband's monetary and non-monetary contributions
to the marriage far outweighed those made by wife. The court
specifically noted wife's "extensive absence from the marital
home without good reason in the last six years of the marriage,"
and husband's extensive renovation of the marital home.
The evidence supports the trial court's findings. Wife was
in Panama more than four of the last six years prior to the final
separation. During this time, the parties' adopted son was in
junior and senior high school. Wife did not return to the United
States when the son faced criminal prosecution in 1991 and 1992.
The trial court found that the marital property was worth
approximately $400,000. The trial court awarded wife $75,000 as
her share of the marital property. We cannot say the trial
court's decision was an abuse of discretion or unsupported by the
evidence. Therefore, we affirm the court's equitable
distribution award.
Spousal Support
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Wife argues that the trial court's award of $450 in spousal
support failed to recognize her needs and husband's ability to
pay. It is true that "[i]n awarding spousal support, the
chancellor must consider the relative needs and abilities of the
parties." Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d
827, 829 (1986). However, "[w]hen the chancellor has given due
consideration to [the statutory factors set out in Code
§ 20-107.1], his determination will not be disturbed on appeal
except for a clear abuse of discretion." Id.
The evidence established husband's ability to pay support.
However, the court questioned wife's claimed monthly expenses of
$1,339, noting that wife "has chosen to spend most of her time in
Panama being supported by her sister." The court also noted that
wife's "current choice is remarkably similar to her choice during
the last years of the marriage." The court then disallowed
wife's claimed expense of $700 a month for rent because wife had
been living in Panama with her sister.
The trial court specifically found that wife was voluntarily
unemployed. Although wife was healthy and intelligent and had
worked at a number of different jobs during the marriage, wife,
despite prior admonitions by the court, failed to obtain
employment to help contribute to her own support. Code § 20-
107.1 directs the trial court to consider as a factor, in setting
the amount of spousal support, the earning capacity of the
"parties." A plain meaning of the words "parties" indicates that
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the legislature intended to include the earning capacity of the
payee spouse as well as the payor.
Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675,
678 (1990). Having found wife's claimed expenses equalled no
more than $639, the trial court determined that wife had
sufficient earning capacity and employment skills to earn at
least $189 a month.
The trial court considered the statutory factors before
determining that wife was entitled to $450 a month in spousal
support. We cannot say the decision was an abuse of discretion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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America E. Earl v. Edwin O. Earl
Combined Opinion