COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Alston
UNPUBLISHED
Argued at Richmond, Virginia
JAMES L. ROBERTSON
MEMORANDUM OPINION* BY
v. Record No. 0017-17-2 JUDGE RANDOLPH A. BEALES
NOVEMBER 7, 2017
KATISHA L. ROBERTSON
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Joseph M. Teefey, Jr., Judge
Brandy M. Poss (DeFazio Bal, P.C., on brief), for appellant.
No brief or argument for appellee.
James L. Robertson (“husband”) presents nine assignments of error to this Court.
Husband appeals the circuit court’s valuation and distribution of marital property, the circuit
court’s award of spousal support to Katisha L. Robertson (“wife”) in the amount of $1,594 per
month, and an award of child support to wife in the amount of $884 per month. In addition,
husband appeals the circuit court’s entry of the December 7, 2016 “Order of Equitable
Distribution[,] Child Custody[,] and Child and Spousal Support” because he claims that the
circuit court purportedly entered that order before the parties finished presenting their evidence.
Similarly, husband appeals the circuit court’s denial of his motion to vacate and leave to file a
motion to reconsider. Finally, husband appeals the circuit court’s award to wife of $10,000 in
attorney’s fees, and he further asks this Court to award him his attorney’s fees and costs related
to this appeal. For the reasons that follow, we affirm the circuit court in part, reverse in part, and
remand for further proceedings consistent with this opinion.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
Dissolution of the Marriage and Pretrial Matters
Under settled principles of appellate review, we view the evidence in the light most
favorable to wife, as we are required to do because she is the party prevailing below. Chretien v.
Chretien, 53 Va. App. 200, 202, 670 S.E.2d 45, 46 (2008). “That principle requires us to discard
the evidence of [husband] which conflicts, either directly or inferentially, with the evidence
presented by [wife] at trial.” Hamad v. Hamad, 61 Va. App. 593, 596, 739 S.E.2d 232, 234
(2013) (quoting Owens v. Owens, 41 Va. App. 844, 848-49, 589 S.E.2d 488, 491 (2003)).
So viewed, husband and wife were married on March 7, 1997 and had three children.
Throughout the marriage, husband was employed as a soldier in the United States Army. Given
his length of service, husband receives a military pension, and he also receives partial disability
benefits due to mental health issues that are related to his military service. During the marriage,
husband was the primary financial provider for the family, and wife made substantial
non-monetary contributions by rearing the children and caring for the home. Wife’s
non-monetary contributions enabled husband to advance in his career. The parties separated on
March 6, 2014 with the intent to terminate the marriage. The circuit court found the marriage
broke down as the result of husband’s extramarital affair. Husband had also fathered a child out
of wedlock while married to wife.
Prior to trial, counsel for both husband and wife withdrew from the case, resulting in
several continuances. While wife secured new counsel, husband chose to continue pro se.
Husband delayed the proceedings by failing to adequately respond to wife’s discovery requests
and abide by the circuit court’s orders. Ultimately, the circuit court sanctioned husband for
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failure to comply with an order to compel and with the court’s pretrial order.1 In imposing these
sanctions, the circuit court remarked on the record, “Mr. Robertson, the Court finds that you're
playing games.”
Evidentiary Hearings
The circuit court conducted two evidentiary hearings on June 14, 2016 and on October
28, 2016. At the June hearing, wife submitted evidence of the parties’ marital property through
the adverse testimony of husband. Wife submitted an account statement of husband’s Fidelity
individual retirement account (IRA), dated December 29, 2015. That statement showed husband
owned 63.9370 shares at a per-share price of $12.60 and that $16,560 had been “invested to
date” in the account. Wife also submitted husband’s responses to her first set of interrogatories
as further evidence of the value of husband’s Fidelity IRA; these interrogatory responses also
provided evidence of the value of three Liberty Insurance life insurance policies purchased for
the parties’ children and the value of the parties’ household furnishings. In response to
Interrogatory 3,2 husband admitted the value of his Fidelity IRA was $880.06 on July 9, 2015. In
response to Interrogatory 6,3 husband admitted that the parties owned three life insurance
1
At the beginning of the June 14, 2016 hearing, the circuit court sanctioned husband for
failure to comply with the court’s order compelling him to provide wife with information
regarding his income and retirement benefits. The circuit court awarded attorney’s fees to wife
and precluded husband from offering evidence of his income and retirement benefits at trial. The
circuit court also sanctioned husband for his failure to abide by the circuit court’s pretrial order
by failing to timely provide opposing counsel with copies of his witness and exhibit lists. As a
result, the circuit court precluded husband from presenting evidence through his witnesses and
exhibits. However, the circuit court stated that husband could still offer evidence through his
testimony.
2
That interrogatory stated, “List any mutual funds, stocks, savings bonds, mutual bonds,
or other securities or investment funds owned by you alone or jointly with another, giving a
description of the asset, the owner(s), the date and how acquired, value on the date of separation,
and present value.”
3
That interrogatory stated, “List any life insurance policies owned by you, giving the
name and address of the company, type of policy, on whose life obtained, policy number,
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policies for their children. Each policy was described as “whole life” with a value of $25,000.
Husband also testified that these policies were “paid up.” In response to Interrogatory 7,4
husband estimated that the separate value of the parties’ household furnishings totaled $17,500.
Through husband’s adverse testimony, wife also submitted evidence of husband’s
monthly income, which consisted primarily of his military pension and disability benefits.
Husband’s retiree account statement showed he receives $3,982 per month in gross military
pension pay and $2,395.87 per month in Concurrent Retirement and Disability Pay (“CRDP”)
from the U.S. Department of Veterans Affairs (VA), sum totaling $6,377.87. Following direct
examination by wife’s counsel, husband declined the opportunity to offer further testimony at
that time, instead opting to testify during his case in chief.
Relevant to the issue of child support, wife testified that the parties’ two minor children5
received social security benefits in the amount of $310 per month and $465 per month. These
benefits were based on husband’s disability status. Wife also submitted evidence of her
attorney’s fees.
The record confirms that husband had the opportunity to cross-examine wife and each of
her witnesses during both evidentiary hearings. During the June hearing, husband’s
cross-examination of wife was extremely brief despite his having a full opportunity to do so; in
fact, husband’s examination of wife was so brief that the court confirmed he was finished. The
beneficiary, loans made against the policy within the last five years, the face value, and the cash
surrender value.”
4
That interrogatory stated, “List the household furnishings or personal effects having an
estimated value in excess of $500 per item or set owned by you alone or jointly with another, and
the estimated value.”
5
As of the date of the first evidentiary hearing, June 14, 2016, the parties’ eldest son,
J.R., had reached the age of eighteen.
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court stated, “I don't want to cut you off. Are you sure?” After that inquiry, husband briefly
continued before indicating a second time that he had no further questions.
At the conclusion of the June hearing, the court granted wife a divorce, pursuant to Code
§§ 20-91(A)(9) and 20-121.02 on grounds of the parties’ having lived separate and apart in
excess of twelve months. Based upon husband’s failure to disclose information of his income
and retirement benefits during discovery, the circuit court retained jurisdiction over the issues of
equitable distribution, spousal support, child support, and attorney’s fees. The court continued
the matter for the limited purpose of receiving further evidence on husband’s income and
retirement benefits. The court also entered two orders requiring the VA and Defense Finance
Accounting Service (“DFAS”) to produce records pertinent to husband’s compensation, benefits,
and retirement income.
On October 28, 2016, the Court conducted its second evidentiary hearing to receive
further evidence of husband’s income and retirement benefits. During the hearing, neither party
was represented by counsel, and neither party submitted new evidence on husband’s income and
retirement benefits. Before the conclusion of the hearing, wife attempted to offer evidence of
husband’s separate property. While the circuit court did not admit this evidence into the record,
the court set a November 16, 2016 hearing, presumably for the purpose of determining whether
the property in question was titled in husband’s name. Subsequently, that hearing was cancelled
for reasons not apparent in the record.
The December 7, 2016 Order and Husband’s Post-Trial Filings
On December 7, 2016, the circuit court entered its “Order of Equitable Distribution[,]
Child Custody[,] and Child and Spousal Support” based upon the evidence it received during the
June and October evidentiary hearings. The circuit court ordered that the “Fidelity IRA valued at
$16,560.00 titled in [husband’s] name shall be divided 50% to the [husband] and 50% to the
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[wife].” And, the “Liberty Insurance whole life policies with cash value of $75,000.00 shall be
divided 50% to [husband] and 50% to [wife].” The court valued the parties’ household
furnishings at $17,500 and ordered that those items “shall be retained by [husband] . . . [who]
shall pay [wife] a judgment in the amount of $8,750.00 for her share of this personal property.”
Finally, the court awarded “[wife] one-half of the marital share of [husband’s] pension or
retirement income from his former [military] employment as a soldier in the United States
Army.”
The circuit court awarded $1,594 in spousal support and $884 in child support to wife
based upon its determination that husband’s gross monthly income was $6,377 from his
“disability and veteran’s benefits” and wife’s gross monthly income was $1,067 from “part-time
wages paid hourly for retail sales employment.”
On December 20, 2016, with the assistance of counsel, husband filed a “Motion to
Vacate and Leave to File a Motion to Reconsider.” Counsel argued that husband was “under a
significant mental impairment,” during the October hearing. As a result, “[husband] was unfit to
testify on his own behalf.” On December 21, 2016, the circuit court denied husband’s motion
and noted “[husband] was before the Court seventeen times for hearings and scheduling of
hearings . . . [and] [t]he Court encouraged [husband] to retain counsel during nearly all of the
seventeen hearings.” Despite the circuit court’s recommendation, husband chose to proceed pro
se – and to present evidence, cross-examine witnesses, make objections, and present argument
himself. In short, “[t]he Court was able to observe [husband] and found no reason to believe that
he was unable to understand the proceedings.” On December 28, 2016, husband’s counsel filed
a list of objections to that order. This appeal followed.
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II. ANALYSIS
A. STANDARD OF REVIEW
Husband raises five assignments of error (and several subparts) pertaining to the issues of
equitable distribution, spousal support, and child support. Husband acknowledges on brief that
each issue is reviewed on appeal for an abuse of discretion by the circuit court. Under this
deferential standard of review, this Court must “show enough deference to a primary decision
maker’s judgment that the [appellate] court does not reverse merely because it would have come
to a different result in the first instance.” Lawlor v. Commonwealth, 285 Va. 187, 212, 738
S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,
322 (4th Cir. 2008)). “When dealing with discretionary decisions, only ‘when reasonable jurists
could not differ can we say an abuse of discretion has occurred.’” Robbins v. Robbins, 48
Va. App. 466, 482, 632 S.E.2d 615, 623 (2006) (quoting Hernandez-Guerrero v.
Commonwealth, 46 Va. App. 366, 370, 617 S.E.2d 410, 412 (2005)). “Accordingly, ‘when a
decision is discretionary . . . the court has a range of choice, and . . . its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of law.’”
Lawlor, 285 Va. at 212-13, 738 S.E.2d at 861 (quoting Landrum v. Chippenham &
Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)). Finally,
discretionary decisions “will not be reversed on appeal unless plainly wrong or unsupported by
[credible] evidence.” Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).
In addition, as a preliminary matter, husband chose to represent himself at both
evidentiary hearings. This Court has stated, “Though the defendant’s choice to appear pro se
may be ‘ultimately to his own detriment,’ it still ‘must be honored’ no matter its imprudence.”
Edwards v. Commonwealth, 49 Va. App. 727, 736-37, 644 S.E.2d 396, 400 (2007) (quoting
Thomas v. Commonwealth, 260 Va. 553, 560, 539 S.E.2d 79, 83 (2000)). Furthermore,
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husband, as a pro se litigant, must comply with the same rules as an attorney in conducting his
case. See Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (“Even pro se
litigants must comply with the rules of court.”). His choice to appear pro se in the trial court
does not entitle him to preferential treatment in that court or on appeal.
In this appeal we address the matters of equitable distribution, spousal support, and child
support in that order. See Frazer v. Frazer, 23 Va. App. 358, 381, 477 S.E.2d 290, 301 (1996)
(“The trial court should follow a three-step process in resolving [these] issues . . . the court
should first determine equitable distribution, then spousal support, and finally child support.”).
B. EQUITABLE DISTRIBUTION
Husband assigns error to three aspects of the circuit court’s equitable distribution of the
parties’ marital property.6 We address each issue in turn.
Husband’s fifth assignment of error argues that the circuit court abused its discretion by
valuing the husband’s Fidelity IRA at $16,5607 and ordering husband to pay 50% of that value to
wife. Because the circuit court is plainly wrong about the value of that account as of the hearing
date, we remand the matter to the circuit court to determine the proper value (and distribution) of
that account.
6
In his fifth assignment of error, husband argues that “The court erred in valuing
Husband’s Fidelity IRA at $16,500 and in awarding Wife 50% of such value.” Husband’s sixth
assignment of error states, “The court erred in valuing the Liberty Insurance life insurance
policies by finding the policies had a cash value of $75,000 and in awarding Wife 50% of such
value.” Husband’s seventh assignment of error states, “The court erred in valuing the parties’
personal property in storage under Husband’s name at $17,500 and in ordering Husband to pay
Wife a judgment in the amount of $8,750 for her share of the personal property.” None of these
assignments of error challenge the circuit court’s classification of the subject property as marital;
therefore, we only consider whether the circuit court abused its discretion in its valuation and
distribution of the property.
7
We note that the circuit court’s December 7, 2016 order valued husband’s Fidelity IRA
at $16,560, rather than the “$16,500” that is stated in husband’s fifth assignment of error. As
such, we view husband’s use of “$16,500” as a scrivener’s error and proceed with the valuation
given in the circuit court’s order.
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Code § 20-107.3 states:
[T]he court . . . shall determine the legal title as between the
parties, and the ownership and value of all property, real or
personal, tangible or intangible, of the parties . . . . The court shall
determine the value of any such property as of the date of the
evidentiary hearing on the evaluation issue.
“The value of property is an issue of fact, not of law [and] we are bound by this finding on appeal,
unless it is plainly wrong or without evidence to support it.” Patel v. Patel, 61 Va. App. 714, 722,
740 S.E.2d 35, 39 (2013) (internal quotations and citations omitted).
Here, the only evidence of the value of husband’s IRA came from wife in the form of an
account statement dated December 29, 2015 and husband’s responses to wife’s interrogatories.
The statement showed the account contained 63.9370 shares and a share price of $12.60, which
would indicate a value of the account of approximately $805 – far below what the trial court
established. The statement also indicated that the total amount “invested to date” was $16,560;
however, nothing on the statement indicated that the value of the account at the time of the
hearing date was $16,560. Even if the amount “invested to date” was $16,560, the amount
“invested to date” over the time of the account is no indication of its current value as of the
hearing date. In addition, husband’s answer to Interrogatory 3, which requests information on
husband’s stocks and investments, indicates the account had a balance of $880.06 as of July 9,
2015. Because the circuit court is plainly wrong in its valuation on the hearing date of husband’s
Fidelity IRA, we conclude that the circuit court erred in its valuation (and distribution) of the
IRA. Accordingly, we reverse and remand this issue to the circuit court for the limited purpose of
revaluing (and then redistributing) husband’s Fidelity IRA.
Next, husband’s sixth assignment of error challenges the circuit court’s “valuing the
Liberty Insurance life insurance policies by finding the policies had a cash value of $75,000 and
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in awarding Wife 50% of such value.” We disagree with husband and affirm the circuit court on
this assignment of error.
Here, the only evidence of the value of the policies was offered by wife. Husband chose
not to present his own evidence to dispute the fact that the total value of these policies was
$75,000. Husband’s answer to wife’s Interrogatory 6 states:
Liberty National Life Insurance Company – Policies obtained
06/01/05
[J.R.] – Policy . . . Whole Life: $25,000.00
[Q.R.] – Policy . . . Whole Life: $25,000.00
[S.R.] – Policy . . . Whole Life $25,000.00
Other than this interrogatory response, the only evidence presented at trial on the life insurance
policies was husband’s testimony that the policies were “paid up.” On brief, husband contends
that wife failed to meet her burden of proof on this issue. Husband also appears to accuse the
circuit court of engaging in “mere guess work.” However, this Court can only address the record
that is before us, and the record contains no evidence to support husband’s contention. Based on
the record before us, we cannot say that the circuit court abused its discretion because there was
credible evidence within the record to support its conclusion that the insurance policies were
worth $75,000 and that wife was entitled to 50%. We therefore affirm the circuit court.
Finally, regarding the valuation of the parties’ household furnishings, husband’s seventh
assignment of error contends that the circuit court erred in valuing that property at $17,500 and in
ordering husband to pay wife $8,750 for her share of that property. Similar to husband’s
argument on his sixth assignment of error, husband challenges the sufficiency of wife’s evidence.
Husband’s response to wife’s Interrogatory 7 valued the sum of the household furnishings at
$17,500 – the exact value the circuit court assigned to this property. Husband argues that his
answer to the interrogatory is somehow unreliable because the answer was given approximately
ten months before the June hearing. However, because there was evidence in the record to
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support the circuit court’s valuation of the parties’ household furnishings, we cannot say that the
circuit court abused its discretion in affixing a value of $17,500 to the property and awarding wife
$8,750 of that amount.
C. AWARD OF SPOUSAL SUPPORT TO WIFE
Husband’s fourth assignment of error argues that the circuit court erred in “awarding
Wife spousal support in the amount of $1,594 per month.” We agree the circuit court erred, and
we reverse the award and remand the matter to the circuit court for a redetermination of spousal
support.
Code § 20-107.1(E) lists the factors a circuit court must consider in making an award of
spousal support. See Robinson v. Robinson, 54 Va. App. 87, 91, 675 S.E.2d 873, 875 (2009)
(“In making that determination [of spousal support], the trial court ‘must consider all the factors
enumerated in Code § 20-107.1(E)’” (quoting Fadness v. Fadness, 52 Va. App. 833, 846, 667
S.E.2d 857, 863 (2008))). One factor the circuit court must consider is “[t]he obligations, needs
and financial resources of the parties, including but not limited to income from all pension, profit
sharing or retirement plans, of whatever nature.” Code § 20-107.1(E)(1). Another factor is
“[t]he provisions made with regard to the marital property under § 20-107.3,” pertaining to the
equitable distribution of marital assets. Code § 20-107.1(E)(8). In addition, this Court has held
that military pensions that are marital property subject to equitable distribution must be
considered when making a spousal support award. See Sawyer v. Sawyer, 1 Va. App. 75, 78,
335 S.E.2d 277, 280 (1985) (“Our reading of [Code § 20-107.3] leads us to conclude that the
legislature intended all pensions, including military pensions, to be personal property and subject
to equitable distribution.”).
The circuit court’s December 7, 2016 order states, “The [husband] shall pay $1,594 per
month for spousal support of the [wife] payable on the first day of each month starting January 1,
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2017, and continuing until modified by a court of competent jurisdiction.” In making this award,
the circuit court discussed the statutory factors and found “that the [husband] has gross income
from all sources including disability and veteran’s benefits in the monthly amount of $6,377.00.”
This amount, $6,377, was husband’s monthly income from his full military pension and CRDP
income. However, later in that same order, the circuit court explicitly stated that it “award[ed]
[wife] one-half of the marital share of [husband’s] pension or retirement income from his former
employment as a soldier in the United States Army.” Thus, the circuit court acted within its
discretion when it awarded wife 50% of the marital share of husband’s military pension. See id.
However, we find that the circuit court abused its discretion in making its spousal support award
when it failed to account for the effect of the equitable distribution award of half of the marital
portion of husband’s monthly military pension income when calculating husband’s total monthly
income for determining spousal support. See Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d
760, 767 (1997) (“In determining spousal support, the commissioner and trial court must
consider all factors contained in Code § 20-107.1; failure to do so constitutes reversible error.”
(citing Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986))). Accordingly,
we reverse the circuit court’s spousal support award and remand it for reconsideration of spousal
support (and of husband’s total monthly income) consistent with this opinion.
D. AWARD OF CHILD SUPPORT TO WIFE
Husband’s third assignment of error (and its five subparts) claim that the circuit court
erred in awarding wife $884 per month in child support.8
8
That assignment of error states,
The court erred by awarding Wife child support in the amount of
$884.00 per month.
a. The court’s order is so unclear it cannot be determined from the
four corners of the order how precisely child support was calculated.
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The third subpart of this assignment of error claims that the circuit court erred in finding
husband’s income was $6,377 per month for the purpose of calculating child support. Our
remanding the issue of spousal support will logically result in a change to the parties’ gross
incomes, and, therefore, those changes will necessitate the recalculation of the child support
award. See Frazer, 23 Va. App. at 381, 477 S.E.2d at 301 (“Because in determining child
support under Code § 20-108.2(C), the trial court must include spousal support in the gross
income of the receiving spouse and must deduct the amount of spousal support from the gross
income of the paying spouse, the court should first determine equitable distribution, then spousal
support, and finally child support.”). We therefore find that the trial court also erred in
b. The court’s order does not contain any child support guideline
worksheet. The court did not state [if] the amount of child support
awarded resulted from the application of the guidelines set out in
Virginia Code § 20-108.2. The court did [not] make written
findings in the order as set out in Virginia Code § 20-108.1, or by
reference, that the application of the guidelines would be unjust or
inappropriate as determined by relevant evidence pertaining to the
factors set out in Virginia Code § 20-108.1. The court erred in
failing to calculate the presumptive amount of child support and
failing to provide a written explanation in the order or by reference
for a deviation from the child support guidelines.
c. The court erred in finding Husband’s income was $6,377 per
month.
d. The court erred by failing to give Husband a credit against his
ongoing basic child support obligation for the amount of social
security benefits paid to or for the children and derived by the
children from Husband. The court should have imputed as income
to Husband the social security benefits received by the children and
credited his child support obligation by the amount of those benefits.
Husband should have also received a credit for the social security
payments previously paid against any child support arrearage.
e. The court erred by failing to deduct from Husband’s gross
income the amount of child support husband pays pursuant to an
order for the support of a child who is not a child subject to the
parties’ proceeding, as required by Virginia Code § 20-108.2(C).
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determining child support, reverse on the third subpart of Assignment of Error 3, and remand the
issue of child support to the circuit court.
The fourth subpart of Assignment of Error 3 claims that the circuit court erred by failing
to credit husband’s child support obligation by the amount of the social security benefits received
by the parties’ two minor children as a result of husband’s disability. This Court has previously
held that social security benefits paid to children, which are derived from a parent’s disability
status, entitle that parent to a credit against his child support obligation. Whitaker v. Colbert, 18
Va. App. 202, 205-06, 442 S.E.2d 429, 431-32 (1994).
Here, evidence in the record showed that the parties’ two minor children receive social
security benefits in the amounts of $310 per month and $465 per month. These benefits are paid
to the children based upon husband’s disability status. However, the circuit court’s December 7,
2016 order does not make any written findings, as required by Code § 20-108.1, to indicate that
the circuit court deviated from the presumptive child support amount provided for in Code
§ 20-108.2. Code §§ 20-108.1(B), 20-108.2. From the record before us, we can only conclude
that the circuit court simply did not consider the social security benefits paid to the children
when making its child support award. Accordingly, we reverse the circuit court on this point as
well and remand the issue of child support to the circuit court for recalculation consistent with
this opinion.
On the fifth subpart of husband’s Assignment of Error 3, husband argues that the circuit
court failed to consider the amount of child support payments he pays for his child born out of
wedlock when deciding the child support he must pay to wife. See Code § 20-108.2(C)(4). The
record shows that, during the June hearing, husband testified under direct examination about the
existence of a child born out of wedlock. However, during his case in chief, husband failed to
present any evidence showing the amount of such payments (and even whether he has actually
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made them). Therefore, we cannot say that the circuit court abused its discretion by not
considering if husband has a support obligation for a child not born of his marriage to wife. We
therefore affirm the circuit court on the fifth subpart of husband’s Assignment of Error 3.
Finally, we choose not to address the first and second subparts on husband’s third
assignment of error. Because we will remand the issue of child support on the third and fourth
subparts of this assignment of error, there is no need to address the first two subparts of the third
assignment of error.
E. CANCELLATION OF THE NOVEMBER 16, 2016 HEARING
Husband argues in his first assignment of error9 that the circuit court abused its discretion
by entering the December 7, 2016 order without permitting the parties to finish presenting their
evidence.
A circuit court has a broad range of discretion in deciding the best way to manage a trial.
“Accordingly, ‘when a decision is discretionary . . . the court has a range of choice, and . . . its
decision will not be disturbed as long as it stays within that range and is not influenced by any
mistake of law.’” Lawlor, 285 Va. at 212-13, 738 S.E.2d at 861 (quoting Landrum, 282 Va. at
352, 717 S.E.2d at 137).
On brief, husband argues that the circuit court’s cancellation of the November 16, 2016
hearing prevented the parties from finishing the presentation of their evidence, particularly
9
Husband's first assignment of error states,
The court erred by ruling on equitable distribution, spousal
support, attorney’s fees, and child support before the parties
finished presenting their evidence. The court continued the
parties’ case for a hearing on November 16, 2016. However, the
court cancelled the November 16 hearing and ruled in the matter
without affording the parties an opportunity to finish prosecuting
their case. In doing so, the court improperly prevented Husband
from presenting evidence and cross-examining the Wife.
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evidence pertaining to husband’s income and retirement benefits. Husband further contends that
the circuit court’s cancellation of the hearing impermissibly limited his ability to cross-examine
wife. In arguing that the circuit court abused its discretion, husband cites to this Court’s opinions
in Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987) (“The court may not
refuse or fail to give parties a reasonable opportunity to develop and present evidence . . . .”), and
Campbell v. Campbell, 49 Va. App. 498, 504, 642 S.E.2d 769, 772 (2007) (“Virginia has
recognized a fundamental right to cross-examination on a matter relevant to the litigation, which
applies in civil cases.”). While we do not disagree with these statements of law cited by
husband, we disagree with husband’s characterization of the record.
Here, viewing the record in the light most favorable to wife, as we must because she was
the prevailing party in the trial court, the record shows that the circuit court went to great lengths
to give husband and wife an opportunity to present evidence. The circuit court conducted two
evidentiary hearings, one in June and one in October. During the June hearing, wife availed
herself of the opportunity to submit evidence pertinent to the issues of equitable distribution,
spousal support, and child support. Husband, owing to the sanctions imposed by the circuit
court, had the opportunity to present evidence on each issue through his testimony. Regarding
husband’s ability to cross-examine wife and her other witnesses, the record shows that husband
had the chance to do so at both the June and October hearings. In fact, at one point during the
June hearing, the circuit court went so far as to confirm husband was completely finished with
his cross-examination of wife before moving forward.
The record contains no explanation as to why the November 16, 2016 hearing was
cancelled, and this Court will not speculate as to the reason. However, it is clear from the record
that a major purpose for that hearing was to receive evidence related to husband’s separate
property, and separate property, of course, was not subject to the court’s equitable distribution.
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The record further shows that the circuit court concluded the October hearing when neither party
had additional witnesses to call or evidence to present pertaining to husband’s income and
retirement benefits. Thus, after more than two years of contentious litigation in the trial court,
multiple motions hearings, and two evidentiary hearings, we cannot say that the circuit court
abused its discretion by entering the December 7, 2016 order.
F. DENIAL OF HUSBAND’S MOTION TO VACATE
Husband’s second assignment of error contends that the circuit court abused its
discretion by “denying Husband’s Motion to Vacate the December 7, 2016 Order of Equitable
Distribution[,] Child Custody[,] and Child and Spousal Support and Leave to File a Motion to
Reconsider.” In his motion, husband argued through counsel that he was not competent to
represent himself during the October hearing. However, in reviewing the record, we find that
the circuit court did not abuse its discretion. As the Court noted in its December 21, 2016 order,
“[husband] was before the Court seventeen times for hearings and scheduling of hearings . . .
[and] [t]he Court encouraged [husband] to retain counsel during nearly all of the seventeen
hearings.” Furthermore, “[t]he Court was able to observe the [husband] and found no reason to
believe that he was unable to understand the proceedings” based upon his presenting evidence,
cross-examining witnesses, making objections, and presenting argument. Quite to the contrary,
the record shows that the trial court was in the best possible position to observe husband and
determine his ability to understand the proceedings. Accordingly, we cannot say the trial court
abused its discretion in denying husband’s motion to vacate.
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G. ATTORNEY’S FEES
Finally, husband assigns error to the circuit court’s award of attorney’s fees to wife and
asks this Court to grant him an award of attorney’s fees related to this appeal.10
“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). Here, we affirm the circuit court and deny husband’s request.
Viewing the record as we must, in the light most favorable to wife as the party that prevailed
below, it is apparent that a great deal of delay was based solely on what the trial court described
as husband’s “playing games.” Husband refused to timely comply with the circuit court’s orders
which led to his being sanctioned twice by the circuit court, and it also resulted in the matter
dragging on for months longer than it needed to do so. All of these delays resulted in additional
legal expenses to wife. Therefore, we cannot say that the circuit court abused its discretion in
awarding wife $10,000 in attorney’s fees, and we will not disturb that award. Furthermore, as
husband only prevails on appeal on several of his nine assignments of error, we deny husband’s
request of an award of attorney’s fees related to his appeal to this Court.
III. CONCLUSION
In summary, on husband’s fifth assignment of error, we reverse the circuit court because
the circuit court’s valuation (and distribution) of husband’s Fidelity IRA was plainly wrong. On
husband’s fourth assignment of error, we reverse the circuit court’s spousal support award
because the court abused its discretion by failing to consider the equitable distribution of
husband’s military pension in considering the parties’ gross incomes and in then making the
10
Husband’s eighth and ninth assignments of error state, respectively, “The court erred in
awarding Wife attorney’s fees in the amount of $10,000,” and “Husband should be awarded his
attorney’s fees and costs related to this appeal proceeding. O’Loughlin v. O’Loughlin, 23
Va. App. 690, 470 S.E.2d 98 (1996).”
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spousal support award. On husband’s third assignment of error, we reverse the circuit court
because the recalculation of spousal support – and the court’s need to consider social security
benefits paid to the parties’ children as a result of husband’s disability – will require the
recalculation of child support. We remand each of these issues to the circuit court for further
proceedings consistent with this opinion based on the current record. Finally, we affirm the
circuit court on husband’s remaining assignments of error and deny husband’s request for
appellate attorney’s fees.
Affirmed in part, reversed and remanded in part.
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