                                COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, McCullough and Senior Judge Bumgardner
Argued at Richmond, Virginia


CHRISTINE COLEMAN
                                                              MEMORANDUM OPINION * BY
v.      Record No. 0633-11-2                                JUDGE STEPHEN R. McCULLOUGH
                                                                  NOVEMBER 22, 2011
PETER RICHARD COLEMAN


                       FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                    Gary A. Hicks, Judge

                  Richard L. Locke (Shannon S. Otto; Locke Partin DeBoer & Quinn,
                  on brief), for appellant.

                  W. Reilly Marchant (Marchant, Thorsen, Honey, Baldwin & Meyer,
                  LLP, on brief), for appellee.


        Christine Coleman appeals from an award of spousal support, contending that the trial court

erred in utilizing a locally adopted pendente lite spousal support guideline formula to establish

permanent spousal support under Code § 20-107.1, and, in this connection, failed to consider the

statutory factors in Code § 20-107.1 and did not make the required written factual findings as

required by this statute. She further argues that the court erred in imputing income to her. For the

reasons stated, we affirm in part and reverse in part.

                                              ANALYSIS

        The divorcing parties, Peter Richard Coleman (“husband”) and Christine Coleman (“wife”),

reached an agreement with respect to the division of marital property, but proceeded to trial on the

question of spousal support. At the hearing, the court heard extensive evidence relevant to the

factors found in Code § 20-107.1.

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        The parties sharply disputed the extent to which wife would be able to work. Wife testified

that she suffered from migraine headaches, fibromyalgia, attention deficit disorder, as well as

embarrassing complications associated with an ileostomy. She further testified that she suffers from

cervical spinal stenosis, a pinched nerve in the neck, lower spine issues, radiculopathy, and

torticollis. Wife’s evidence was that her migraines were severe and debilitating and caused severe

pain. A neurologist, Dr. Kim Harris, and a psychiatrist, Dr. James Sellman, who both treated wife,

corroborated her account that wife’s ailments were debilitating. Wife also presented evidence that

she experienced “cognitive fragmentation,” which makes her “scattered, disjointed and enormously

disorganized.” In the opinion of her treating psychiatrist, wife is not able to work. Wife also

presented testimony from a vocational expert, Peder Christian Melberg, who testified that wife’s

numerous medical problems would preclude her from maintaining employment.

        Husband, who is a medical doctor, testified that wife never mentioned attention deficit

disorder in 20 years of marriage. He further noted the difficulty in diagnosing that disease.

Husband also noted the controversy in the medical community concerning what constitutes

fibromyalgia or even whether it exists. He testified that, in his view, it was “certainly not a

disabling condition” for wife. The evidence further established that wife was able to take care of the

parties’ two children, and was able to travel with the children on vacation.

        Dr. Herman Broughton, a vocational expert called by husband, obtained medical reports

from a number of doctors who treated wife. He concluded that wife could work and that she could

earn $30,000 per year. His review of the medical records showed that she did not frequently suffer

from migraines. He testified that wife was leading “a pretty active life. She’s taken vacations, she

participates in a divorce recovery program at First Baptist Church, active with the children, looked

after the home for the last couple of years, she’s done landscaping and so forth.” Husband

cross-examined wife’s medical experts concerning the limited number of visits wife made to obtain

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treatment, the improvement in her headaches over time, the lack of objective verification for the

existence of migraines and attention deficit disorder, the physicians’ reliance on wife to describe her

symptoms, and the fact that some of her symptoms would likely diminish at the conclusion of the

divorce proceeding. Dr. Harris acknowledged on cross-examination that she was not a vocational

expert and that persons with migraines, attention deficit disorder, or persons who have had an

ileostomy or a laminectomy are able to work.

       The court announced its decision from the bench two weeks after the hearing. The trial

court provided an overview of the evidence presented at the hearing. The court determined that

husband’s income for the year was $230,000. The court imputed $25,000 per year in income to

wife. The court stated that it had not overlooked the testimony of the wife’s treating physicians, but

found, upon consideration of the conflicting evidence, that the evidence was overwhelming with

respect to the ability of wife to function on a day-to-day basis. The court then directed counsel to

“plug in” the numbers into the local “guidelines.” Thereafter, the court entered a final decree of

divorce, which provided in relevant part as follows:

                       Following the ore tenus hearing the Court made findings
               that were announced by the Court on the record on October 18,
               2010, and are set forth in the transcript entitled “Complete
               transcript of the hearing, when heard before the Honorable Gary A.
               Hicks, Judge” a copy of which has been filed with the papers
               herein and is by this reference made a part of this Order; and the
               Court accordingly finds that in regard to the issue of spousal
               support and child support, after consideration of the ore tenus
               evidence, exhibits, and arguments of counsel heard in Court on
               October 4, 2010, that the Wife is not totally disabled and the court
               finds that she is able to work on a part time basis and imputes
               $25,000 per year income to her; the Court further finds that
               Husband’s income for the year is $230,000, said finding being
               supported most directly by Plaintiff’s Exhibit 4 and the testimony
               of Plaintiff’s Expert, Mr. Stuart Logan. Consequently, the Court
               hereby ORDERS that the Henrico County pendente lite spousal
               support guidelines shall be applied in order to determine the
               amount of spousal support using Husband’s annual income of
               $230,000 a year ($19,167 per month) and Wife’s imputed income
               of $25,000 a year ($2,083 per month), and Husband shall pay to
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               Wife monthly spousal support in the amount of $4,159, computed
               as follows: 28% of $19,166 equals $5,367; 58% of $2,083 equals
               $1,208; $5,367 less $1,208 equals $4,159 per month. Accordingly
               Husband is hereby ORDERED to pay to Wife spousal support in
               the amount of $4,159 per month effective November 1, 2010 and
               continuing on the first day of each month thereafter until further
               Order of this or another court of competent jurisdiction.

                            DETERMINATION OF SPOUSAL SUPPORT

       Wife argues, among other things, that the trial court erred in failing to make written findings

supporting its spousal support determination and further erred when it instead applied locally

developed guidelines.1 Under Code § 20-107.1,

               [w]hether and how much spousal support will be awarded is a matter
               of discretion for the trial court. In fixing the amount of the spousal
               support award, . . . the court’s ruling will not be disturbed on appeal
               unless there has been a clear abuse of discretion. We will reverse the
               trial court only when its decision is plainly wrong or without
               evidence to support it.

Northcutt v. Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002) (citations and internal

quotation marks omitted).

       Code § 20-107.1(E) and (F) together impose two responsibilities on trial courts. The court

must first consider all of the spousal support factors enumerated in Code § 20-107.1(E), Fadness v.

Fadness, 52 Va. App. 833, 846, 667 S.E.2d 857, 863 (2008), and, second, in contested cases, the

court must set forth “findings or conclusions identifying the factors listed in Code § 20-107.1(E)

that support the spousal support award,” Robinson v. Robinson, 50 Va. App. 189, 196, 648 S.E.2d

314, 317 (2007).




       1
         Wife also argues that the trial court failed to provide written findings, as required by
Code § 20-107.1(F). The final order, however, incorporated by reference the court’s statements
from the bench. The transcript is contained in the record. This transcript satisfies the
requirement of a writing. Cf. Landwehr v. Landwehr, 715 N.W.2d 180, 191 (Wis. 2006)
(finding substantial compliance with statutory requirement of a writing when the trial court
incorporated a transcript by reference).
                                                 -4-
        Although the record shows that the court considered the factors listed in Code

§ 20-107.1(E),2 thereby fulfilling the first statutory mandate, the trial court then directed the parties

to “plug those [numbers] in” the local guidelines.3 The trial court did not actually fix the amount of

spousal support. As appellant notes, “[n]othing in the record indicates the trial court . . . knew what

amount of support it was actually awarding [w]ife when it announced its decision.” In its final

order, the court then adopted the spousal support figure derived from the guidelines worksheets. On

this record, we conclude that the trial court erred as a matter of law in its application of Code

§ 20-107.1(F). A trial court “by definition abuses its discretion when it makes an error of law.”

Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998). Accordingly, we reverse the

spousal support award and remand the case to the trial court for reconsideration of the award in

keeping with this opinion.

                                         IMPUTED INCOME

        Because the issue may arise anew on remand, we address wife’s second assignment of error.

Wife argues that the trial court erred in imputing income to her because the “uncontroverted

evidence established that she was incapable of working, and the trial court erred by arbitrarily

disregarding the expert testimony concerning the same.”




        2
          At trial, the court stated that it had considered the factors in Code § 20-107.3, the statute
governing the division of marital property. Wife relies on this statement to contend that the trial
court relied on an incorrect statute. Our review of the record convinces us that the trial court
simply misspoke in citing Code § 20-107.3 rather than Code § 20-107.1.
        3
          We have no occasion here to opine concerning all of the circumstances under which
courts may exercise their broad discretion to consult such guidelines, but we do note that they
cannot serve as a substitute for the consideration of the Code § 20-107.1(E) factors or the
requirement imposed by Code § 20-107.1(F) that courts provide “written findings and conclusions
identifying the factors in subsection E which support the court’s order.” Nor, under the
discretionary scheme set forth in Code § 20-107.1, could such guidelines form a presumptive
baseline.
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        “A court may under appropriate circumstances impute income to a party seeking spousal

support.” Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). “The

decision to impute income is within the sound discretion of the trial court and will not be reversed

unless plainly wrong or unsupported by the evidence.” Blackburn v. Michael, 30 Va. App. 95, 102,

515 S.E.2d 780, 784 (1999). In this instance, the testimony was hardly “uncontroverted,” as wife

argues. Husband’s testimony about wife’s condition and behavior, the testimony from husband’s

vocational expert, and husband’s cross-examination of wife’s medical experts afforded the trial

court a factual basis upon which to impute income to wife. Wife stresses the credibility of her own

witnesses. On appeal, however, we do not review the evidence de novo. Rather, “[w]hen 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.” Congdon v. Congdon, 40 Va. App. 255,

258, 578 S.E.2d 833, 834 (2003). Moreover, “a trial court is not required to accept the opinion of an

expert . . . . ‘It is well established that the trier of fact ascertains [an expert] witness’ credibility,

determines the weight to be given to their testimony, and has the discretion to accept or reject any of

the witness’ testimony.’” Piatt v. Piatt, 27 Va. App. 426, 434, 499 S.E.2d 567, 571 (1998) (citations

omitted) (quoting Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc)).

        Under that well-settled standard, the trial court’s decision was certainly not arbitrary. We

affirm on this record the trial court’s decision to impute income to wife.

                                                                                      Affirmed in part, and
                                                                             reversed and remanded in part.




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