COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Ortiz and Senior Judge Annunziata
Argued at Fairfax, Virginia
JOHN K. LEO
MEMORANDUM OPINION* BY
v. Record No. 1402-22-4 JUDGE DANIEL E. ORTIZ
OCTOBER 10, 2023
DANNAH A. LEO
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James P. Fisher, Judge
Ryan M. Schmalzle (Beckman Schmalzle Georgelas & Ross, PLC,
on brief), for appellant.
Jacob E. Smith (John C. Whitbeck, Jr.; WhitbeckBennett, PLLC, on
brief), for appellee.
A circuit court ordered John K. Leo (“husband”) to pay Dannah A. Leo (“wife”) $4,100 in
monthly spousal support for ten years. Husband appeals this order, arguing that the circuit court
erred in determining the award’s amount. First, husband contends that the circuit court failed to
properly account for wife’s entire income and her actual need for support. Second, husband argues
that the circuit court valued indemnity provisions relating to wife’s share of husband’s military
retired pay without hearing sufficient evidence regarding such provisions’ value. Because the
circuit court did not err, we affirm.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
Husband and wife married on August 6, 2005 and separated on December 16, 2018. On
April 24, 2019, wife filed for divorce. The parties agreed to the division of husband’s military
retired pay and their gross monthly incomes, but they did not agree on the amount and duration of
wife’s spousal support.2 During trial, each party submitted income and expense statements.
After hearing the evidence and arguments, the circuit court considered each of the Code
§ 20-107.1(E) factors to determine spousal support. The circuit court found that husband had a
“terrific capacity for earning income in comparison to the wife” and husband’s financial resources
“far outweigh[ed]” wife’s resources. The parties’ “substantially high standard of living” was
another factor that the circuit court weighed “heavily.” In addition, the circuit court noted that the
parties had been married 13 years and wife was the sole custodian of one of the minor children who
required extra attention. This custodial arrangement impacted wife’s employment opportunities and
earning capacity, which was another factor that the circuit court weighed “heavily.” Finally, the
circuit court found that husband “drove the expenses of litigation.”
After finding that the factors weighed “greatly in favor of the wife,” the circuit court entered
a final order of divorce (the “divorce order”), which awarded wife $3,100 in monthly spousal
support for ten years. As part of the divorce order, the circuit court also ordered the division of
husband’s military retired pay. To specifically address that pay, the circuit court also entered a
“Court Order Assigning Military Retired Pay” (the “retirement order”), which included two
1
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App.
255, 258 (2003)). Here, wife was the prevailing party.
2
The parties agreed that wife would receive half the marital share of husband’s military
retired pay. The parties also stipulated that husband’s gross monthly income was $16,246.99 and
wife’s gross monthly income was $6,295.83.
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provisions that protected wife. The first required husband to indemnify wife “for any Military
Retired Pay waived as a result of a disability election.” The second prohibited husband from
“making any elections . . . that in any way adversely affects the existence or amount of his Military
Retired Pay or the rights of” wife. Husband appealed the divorce order and the retirement order.
On February 1, 2022, this Court reversed and remanded both orders. See Leo v. Leo, Nos.
0477-21-4 and 0478-21-4, 2022 WL 287027, at *3 (Va. Ct. App. Feb. 1, 2022). This Court held
that the retirement order’s two provisions requiring husband to indemnify wife and prohibiting him
from making any election that adversely affected his military retired pay violated the United States
Supreme Court’s holding in Howell v. Howell, 581 U.S. 214 (2017). Id. at *2. Thus, the Court
vacated the retirement order and remanded “for entry of a new order,” and because of that remand,
it reversed the spousal support award and remanded for the circuit court “to recalculate the
appropriate amount after considering the corrected military pay order.” Id. at *3.
At the remand hearing, the circuit court held that it would “read the mandate narrowly” by
recalculating spousal support after correcting the retirement order. The circuit court asked the
parties to “value . . . the marital share of the affected property” (i.e., husband’s military retirement
pay), which was now “unavailable as a distribution to the wife.” The circuit court further asked
how this change in marital distribution should impact the spousal support award. Husband argued
that the two provisions “add[ed] no value” or “[t]o the extent it ha[d] any value, it’s de minimus”
value. Husband further explained that wife did not lose her interest in husband’s military retired
pay; she lost only the two provisions protecting her interest in such pay. The circuit court disagreed,
stating that this Court’s remand would be “futile” if the provisions had no value. The parties agreed
that wife’s share of husband’s military retired pay as of the date of the hearing was $674 per
month—sixteen percent of husband’s retirement pay.
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Husband admitted that he did not want a new evidentiary hearing on spousal support.
Rather, he “just want[ed] to preserve [his] arguments” regarding spousal support that he had
previously made on appeal. The parties and the circuit court acknowledged that this Court had not
addressed the merits of husband’s arguments regarding spousal support. Husband agreed that the
circuit court could “readopt” its previous findings and not have “a whole trial,” provided he could
file objections. The circuit court allowed husband to orally restate his objections to the previous
spousal support ruling, including his skepticism of wife’s expenses as reflected in her income and
expense statement.
For example, husband argued that such statement listed wife’s credit card payments, which
included charges for “groceries, lunches, [and] things like that” but that those expenses were also
reflected on her income and expense statement. Furthermore, husband noted that this statement
included wife’s legal fees even though the circuit court had separately ordered husband to pay
wife’s legal fees. Husband also emphasized that this statement included the children’s school
tuition despite wife receiving two education savings accounts in equitable distribution to use for
such tuition. Finally, husband challenged wife’s donations for “church/charity,” contending that he
should not be responsible for a “compulsory religious donation.” After subtracting these expenses,
husband argued that wife did not really need spousal support. Wife contended the circuit court had
already weighed this evidence and the Code § 20-107.1(E) factors.
After hearing the parties’ arguments and reviewing their briefs, the circuit court ordered
husband to pay wife $4,100 in monthly spousal support for ten years. In this order (the “remand
order”), the circuit court adopted and incorporated its previous written findings regarding spousal
support. The circuit court also directed the parties to strike the prohibited language from the
retirement order and prepare a “new and corrected” order.3 The circuit court further considered that
3
The record does not include a corrected retirement order.
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wife was “in a position of a reasonably significant vulnerability” considering the “contingent nature
of the military retirement benefit.” Accordingly, the circuit court found it “equitable and just” to
increase the spousal support award. The circuit court also ordered that the award was retroactive
and directed the parties to determine the arrearage amount and submit an agreed order.4
When the parties could not agree, wife asked the circuit court for a spousal support order
consistent with its remand order. Husband objected. On August 19, 2022, the circuit court entered
the “Spousal and Child Support Order” (the “support order”). In the support order, the circuit court
adopted and incorporated its prior findings and rulings regarding spousal support from both the
divorce order and the remand order. The circuit court ordered husband to pay wife $4,100 per
month for spousal support, beginning March 19, 2021, for ten years. It also found that the
arrearages totaled $16,387 as of July 31, 2022 and ordered husband to pay $500 per month until
fully paid. Twenty days later, husband filed objections and a motion to stay and reconsider. The
circuit court did not rule on the motion. Husband appeals.
4
On appeal, wife argues that husband’s appeal is procedurally defaulted because he did
not timely note his objections or appeal the remand order. We disagree because husband had
made known his arguments during the remand hearing. If “a trial court is aware of a litigant’s
legal position and the litigant did not expressly waive such arguments, the arguments remain
preserved for appeal.” Canales v. Torres Orellana, 67 Va. App. 759, 771 (2017) (en banc)
(quoting Brown v. Commonwealth, 279 Va. 210, 217 (2010)). Furthermore, the remand order
was not a final order because it had directed the parties to finalize the outstanding arrearage
issues and submit a new order. “A final order is one which ‘disposes of the entire action and
leaves nothing to be done except the ministerial superintendence of execution of the judgment.’”
Kosko v. Ramser, 299 Va. 684, 687 (2021) (quoting Super Fresh Food Mkts. of Va., Inc. v.
Ruffin, 263 Va. 555, 560 (2002)). “Stated differently, an order that ‘retains jurisdiction to
reconsider the judgment or to address other matters still pending’ is ordinarily not a final order.”
Friedman v. Smith, 68 Va. App. 529, 538 (2018) (quoting Super Fresh, 263 Va. at 561).
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ANALYSIS5
I. Standard of Review
“The trial court has ‘broad discretion in setting spousal support and its determination will
not be disturbed except for a clear abuse of discretion.’” Wyatt v. Wyatt, 70 Va. App. 716, 719
(2019) (quoting Giraldi v. Giraldi, 64 Va. App. 676, 681 (2015)). “When a court awards spousal
support based upon due consideration of the factors enumerated in Code § 20-107.1, as shown by
the evidence, its determination ‘will not be disturbed except for a clear abuse of discretion.’”
Chaney v. Karabaic-Chaney, 71 Va. App. 431, 435 (2020) (quoting Dodge v. Dodge, 2 Va. App.
238, 246 (1986)). “In determining the appropriate amount of spousal support, the trial court must
consider the needs of the requesting party and the other spouse’s ability to pay.” Wyatt, 70
Va. App. at 719 (quoting Alphin v. Alphin, 15 Va. App. 395, 401 (1992)).
5
On appeal, wife also argues that husband’s appeal violated Rule 5A:20. We agree that
husband’s brief violates three subsections of Rule 5A:20. First, husband’s brief does not contain
a “clear and concise statement of the facts that relate to the assignments of error, with references
to the pages of the record.” Rule 5A:20(d) (emphasis added). While husband’s brief has a
statement of facts, such facts do not relate to his alleged assignments of error. Instead, his
statement of facts discusses only the appeal’s procedural history, while his argument section
presents entirely new facts with no cites to the record or an appendix. Second, husband’s brief
does not contain a “short conclusion stating the precise relief sought.” Rule 5A:20(f) (emphasis
added). Rather, his brief concludes by simply stating that the circuit court erred and asking “this
Court [to] entertain oral arguments.” And lastly, husband’s brief violates Rule 5A:20(h) by not
containing a certificate stating the number of words contained in his brief. However, these
violations are not sufficiently egregious to consider husband’s assignments of error waived.
Compare Parks v. Parks, 52 Va. App. 663, 664 (2008) (refusing to consider assignments of error
where appellant did not present any legal authority to support her assignments of error), with Jay
v. Commonwealth, 275 Va. 510, 520 (2008) (reversing this Court for treating “insignificant”
violations of Rule 5A:20(d) as a bar to considering the merits of appellant’s arguments).
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II. Spousal Support
Husband argues that the circuit court erred in determining the spousal support award
because it failed to consider all of wife’s income and limit her award to her actual need.6
Essentially, husband contends that the circuit court erred by failing to properly consider the first
factor enumerated in Code § 20-107.1(E). See Code § 20-107.1(E)(1). We disagree, however,
because the circuit court must consider many factors—not just one—when awarding spousal
support and it considered all such factors.
A circuit court must consider 13 different factors when “determining the nature, amount and
duration of a [spousal support] award.” See Code § 20-107.1(E). “While a trial judge must
consider all the factors, the judge is not ‘required to quantify or elaborate exactly what weight or
consideration it has given to each of the statutory factors.’” Pilati v. Pilati, 59 Va. App. 176, 183
(2011) (quoting Duva v. Duva, 55 Va. App. 286, 300 (2009)). “What weight, if any, to assign to
this [or that] factor . . . lies within the trial court’s sound discretion.” Pilati, 59 Va. App. at 183
(alteration in original) (quoting Robbins v. Robbins, 48 Va. App. 466, 481 (2006)).
6
Wife argues that husband is prohibited from making these arguments because he
previously made them in his earlier appeal of the divorce order. See Leo, 2022 WL 287027, at
*1. We disagree. “In Virginia, an appellate mandate ‘is the directive of the appellate court
certifying a judgment in a particular case to the court from which it was appealed’ and thus
‘speaks only to that case.’” Sidya v. World Telecom Exch. Communs., LLC, 301 Va. 31, 41
(2022) (quoting Powell v. Commonwealth, 267 Va. 107, 128 (2004)). “While a trial court must
obey ‘both the letter and spirit’ of an appellate mandate, the mandate rule only precludes the trial
court from considering issues that ‘the mandate laid at rest.’” Id. (quoting United States v. Bell,
5 F.3d 64, 66-67 (4th Cir. 1993)). “[T]he rule is ‘merely a “specific application of the law of the
case doctrine,”’ which has the effect of foreclosing ‘relitigation of issues expressly or impliedly
decided by the appellate court.’” Id. (quoting Powell, 267 Va. at 128). As acknowledged by the
parties and the circuit court, this Court did not consider the merits of husband’s arguments in the
previous appeal; instead, this Court specifically remanded the spousal support award for the
circuit court to “recalculate the appropriate amount after considering the corrected military pay
order.” Leo, 2022 WL 287027, at *3. On remand, the circuit court reconsidered and recalculated
the spousal support award according to this Court’s mandate. We now consider husband’s
arguments on appeal, as they are properly before the Court.
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Here, the circuit court considered all 13 factors and thus did not err. When issuing the
divorce order, the circuit court considered each Code § 20-107.1(E) factor before awarding spousal
support to wife. For example, the circuit court focused on husband having a “terrific earning
capacity” relative to wife; husband having financial resources “far outweigh[ing]” wife’s resources;
the parties having “a substantially high standard of living” during the marriage; the marriage lasting
13 years; wife being the sole custodian of a minor child requiring extra attention; the custody
arrangement impacting wife’s employment and earning capacity; and husband driving the
litigation’s expenses. With these factors greatly favoring wife, the circuit court initially awarded
wife $3,100 in monthly spousal support.
Then, the circuit court adopted and incorporated these previous findings and rulings into its
remand order.7 When issuing its remand order, the circuit court limited its focus to this Court’s
mandate—i.e., “to recalculate the appropriate [spousal support] amount after considering the
corrected military pay order.” To correct that order, the circuit court struck the indemnification
clause and the prohibition against husband making any election that adversely affected his military
retirement pay. The circuit court recognized that the now “contingent nature of the military
retirement benefit” placed wife in “a position of a reasonably significant vulnerability.”8 Because of
wife’s “lack of certainty” concerning such retirement, the circuit court found that it was “equitable
and just” to increase wife’s monthly spousal support to $4,100. Code § 20-107.1(E) required the
circuit court consider wife’s changed interest in husband’s military retirement pay. See Code
7
Husband agreed that such adoption and incorporation was acceptable.
8
For instance, wife received her interest in husband’s military retirement pay when she
was 45 years old. If wife lived another 30 years and had the indemnification provisions, her
interest in the military retirement pay was essentially guaranteed to be worth over $240,000.
However, since wife now lacks those indemnification protections, husband could—at any
moment—convert his military retirement pay to disability. And if he did, wife’s value in such
retirement pay could decrease to $0.
-8-
§ 20-107.1(E)(1), (7), (8) (requiring a circuit court to consider the “financial resources of the
parties, including . . . all pension, profit sharing or retirement plans, of whatever nature”; the
“property interests of the parties, both real and personal, tangible and intangible”; and the
“provisions made with regard to the marital property”).
Despite this record, husband nevertheless contends that the circuit court erred by not
considering wife’s entire income. However, at the remand hearing, husband advised the circuit
court that the parties had stipulated to wife’s gross monthly income. Husband offers nothing on
appeal to suggest that the circuit court did not consider this stipulated income when reconsidering
the spousal support award on remand.
Husband also suggests that the circuit court erred by not limiting wife’s spousal support to
her demonstrated needs. Husband specifically argues that, because wife “double counted” some of
her expenses, she does not really need spousal support. Yet husband again fails to show how the
circuit court relied upon such duplicate expenses when awarding spousal support. Moreover,
husband cites no authority suggesting that a court must determine a party’s need on a dollar-by-
dollar basis. In fact, this Court’s precedent suggests otherwise. See Robbins, 48 Va. App. at 484
n.10.9
Ultimately, husband’s arguments fail because they focus solely on one factor— wife’s
income and expenses—whereas the circuit court needed to—and in fact did—consider all 13
9
In Robbins v. Robbins, this Court stated the following:
While Code § 20-107.1(E)(1) requires the consideration of the
“needs” of the “parties,” the statute does not (as the child support
statute does) create a mathematical formula primarily reliant on the
input of financial data. Instead, § 20-107.1(E) requires only the
factfinder to “consider” the estimated needs of the parties. By
doing so, the statute thus authorizes a flexible, commonsense
approach to this aspect of the factfinding exercise.
48 Va. App. at 484 n.10.
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factors. Considering the totality of the record, the circuit court did not abuse its discretion by
awarding wife spousal support in the amount of $4,100 per month for ten years.
III. Indemnity Provisions
Husband argues that the circuit court erred in determining a value for the indemnity
provisions in the retirement order without hearing evidence regarding the value of such provisions.
He contends that the circuit court valued the indemnity clause at $120,000 because it increased
wife’s monthly spousal support by $1,000 for ten years. Husband asserts that without any evidence
that valuation was “too speculative” because of the uncertainty of whether husband’s retirement
benefit would change. Husband conflates the new award of spousal support with a new valuation of
the retirement pay. While the circuit court may have valued a marital asset—i.e., considering wife’s
“contingent nature” in husband’s retirement pay to be less valuable—husband has not proven that
the circuit court abused its discretion in valuing that asset. It did not set a specific value on the
contingent nature of the retirement pay, instead it considered the uncertainty of the retirement funds
when deliberating the statutory factors that establish the spousal support award.
As previously stated, when awarding spousal support, a circuit court must consider, inter
alia, the parties’ financial resources (e.g., retirement income), property interests (i.e., real, personal,
tangible, and intangible), and equitable distributions of marital property. See Code
§ 20-107.1(E)(1), (7), (8). Despite husband’s claims,10 the record does not show that the circuit
court abused its discretion in valuing this asset.11 Rather, when determining the spousal support
10
Husband cites this Court’s opinion in Gologanoff v. Gologanoff, 6 Va. App. 340, 349
(1988), to support his claim that the circuit court needed sufficient evidence to value the stricken
retirement order provisions. However, the husband’s cited authority speaks to Code § 20-107.3
(dealing with equitable distribution of marital property)—not Code § 20-107.1 (dealing with
spousal support). See Gologanoff, 6 Va. App. at 349-50.
11
Again, as illustrated by footnote 8, prior to this Court’s remand, wife’s interest in this
asset reasonably could have been worth more than $240,000. However, based upon the circuit
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award, the circuit court considered wife’s changed interest in husband’s military retirement pay.
And since the circuit court properly considered this changed interest alongside the other statutory
factors, it did not abuse its discretion with its spousal support order.
IV. Appellate Attorney Fees
Wife requests an award of attorney fees and costs incurred on appeal. “This Court has
discretion to grant or deny attorney’s fees incurred on appeal.” Stark v. Dinarany, 73 Va. App.
733, 757 (2021). “In making such a determination, the Court considers all the equities of the
case.” Id.; see also Rule 5A:30(b). On consideration of the record before us, we deny wife’s
request for an award of appellate attorney fees and costs.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
court’s recalculation, wife’s interest in this asset cannot possibly exceed $120,000. Based upon
husband’s arguments and cited authority, we cannot say the circuit court abused its discretion.
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