Virginia Lawyers Weekly

Based on the parties’ concessions that there had been material changes in their circumstances since the original final order, including termination of husband’s employment and a reduction in his rental income, the trial court ordered husband to pay a lump sum retroactive award of $8,875 for a period from 2006 to 2008, and a prospective spousal support award of $750 per month, as well as $2,466 in child support arrearage and a prospective award of $1,683 in child support; the Court of Appeals affirms the trial court decision.

Husband argues that the trial court abused its discretion when it included in its factual findings information relating to wife’s care of the children. We disagree.

In its opinion letter, the trial court noted that wife has primary physical custody of the parties’ four children, that she paid a total of three mortgages on two properties, and owed $50,000 in personal debts. She often uses gift cards donated by her church to buy groceries and relies exclusively on hand-me-down clothes for the children.

Husband argues the trial court’s statement indicates the court impermissibly considered the children’s needs in awarding spousal support. On appeal, however, we will not fix upon isolated statements of the trial judge taken out of context in which they were made, and use them as a predicate for holding that the law has been misapplied. The trial court’s opinion letter, read as a whole, shows that the trial court correctly considered each of the statutory factors – including the first factor: the obligations, needs and financial resources of the parties. The evidence adduced at trial amply supported these findings. We cannot say the trial court abused its discretion in setting the amount of the spousal support award.

While wife did argue in the trial court that husband should have income imputed to him, she based her argument on deposits into husband’s bank account during the relevant time that could not be explained by husband’s pay stubs or unemployment benefits, as the case may be, during the same time period.

Neither party is entitled to attorney’s fees.

Dega v. Vitus (Petty, J.) No. 1831-08-4, June 23, 2009; Fairfax Cir.Ct. (Vieregg) Thomas Woehrle for husband; Katherine D. Carlo for wife. VLW 009-7-267(UP), 8 pp.

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