                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
UNPUBLISHED



              JOSEPH MARK NEUBERT
                                                                               MEMORANDUM OPINION*
              v.     Record No. 1675-14-4                                          PER CURIAM
                                                                                   JULY 21, 2015
              LINDA DEAN NEUBERT


                                   FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                                Charles S. Sharp, Judge

                               (Peter M. Fitzner; Matthews, Snider & Fitzner, on briefs), for
                               appellant.

                               (Bethany Kirschner; Thomas Woehrle; Woerhle Franklin
                               Dahlberg Jones PLLC, on brief), for appellee.


                     Joseph Mark Neubert (“husband”) appeals the trial court’s award of spousal support to

              Linda Dean Neubert (“wife”). On appeal, husband contends the trial court erred in awarding

              spousal support that increases from $500 to $1,600 per month upon the sale of the former marital

              residence. He asserts the trial court erred by providing for an automatic increase based upon the

              occurrence of a future event. He also argues the trial court erred by failing to consider the

              income, earning capacity, needs, and financial resources in determining the amount of the

              spousal support award.

                     Furthermore, husband contends the trial court incorrectly determined the amount of

              wife’s income because it relied on 2012 rather than 2013 data and, regardless of which financial

              data was used, abused its discretion by awarding a substantially disproportionate amount of

              spousal support to wife that was unsupported by the evidence.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Finally, husband maintains the trial court erred in ruling that the spousal support award

should continue indefinitely and by denying him the opportunity to re-open the case and present

additional evidence regarding wife’s total 2013 income.

       Upon reviewing the record and briefs of the parties, we conclude that this appeal is

without merit. Rule 5A:27. Accordingly, we affirm the judgment of the trial court.

                                           Background

       “On review, we consider the evidence in the light most favorable to the party prevailing

in the trial court.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 31

(1989). The trial court found that husband and wife had lived separate and apart for a year,

thereby supplying them with a ground for divorce. The court undertook a detailed inventory of

the parties’ assets and roughly divided them between husband and wife in equal parts, with

husband providing wife an additional $37,137.62 upon the sale of the marital residence.

       With regard to spousal support, the trial court expressly stated it had considered the

factors in Code § 20-107.1. It found that the parties had been married over thirty years. It

recognized that the couple’s marriage had remained intact over that period of time, that they had

“raised children, acquired property, and maintained a standard of living which allowed them to

make discretionary expenditures.” With regard to the parties’ respective incomes, the trial court

concluded

               there was no evidence . . . to suggest either party is incapable of
               taking advantage of prior educational opportunities and continued
               employment. To that end, the Court notes that Mr. Neubert
               indicated his yearly income to be approximately $59,000.00. Mrs.
               Neubert testified to an income less than that, but frankly, the Court
               views the evidence as indicating that Mrs. Neubert may have
               additional income producing opportunities. Indeed, in the course
               of the hearing, it appeared that Mrs. Neubert was a financially
               savvy woman. Mrs. Neubert made contributions, monetary and
               non-monetary, to the well-being of the family. This consisted not
               only of her childrearing responsibilities but in the attention to
               family needs and the “sweat equity” that she invested in the
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                    acquisition of family property, most significantly the family
                    residence. The Court is also mindful of the fact that its prior
                    rulings on equitable distribution vest assets of some value in each
                    of these parties.

          After observing it had examined these considerations and the income1 and expenses

submitted by the parties, the trial court awarded wife $500 monthly spousal support beginning

January 1, 2014, to continue until the sale of the marital residence. Upon its sale, husband’s

spousal support obligation would increase to $1,600 per month, beginning the first day of the

month after the closing of the sale. The trial court determined that the support award would

remain in effect “indefinitely or at such time as the statutory circumstances for termination

arise.”

                                                  Analysis

          “‘In fixing the amount of the spousal support award, . . . the [trial] 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.’” Moreno v.

Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble, 14

Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)). “In exercising its discretion, the trial court

must consider all the factors enumerated in Code § 20-107.1(E) when fashioning its award, but it

is not ‘required to quantify or elaborate exactly what weight or consideration it has given to each

of the statutory factors.’” Fox v. Fox, 61 Va. App. 185, 203, 734 S.E.2d 662, 671 (2012)

(quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986)). However, “the

trial court’s findings ‘must have some foundation based on the evidence presented.’” Id.

(quoting Wooley, 3 Va. App. at 345, 349 S.E.2d at 426).




          1
              In the final divorce decree the trial court found that wife’s annual income was $36,516.

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          “An award for an undefined duration requires that the circuit court identify the subsection

(E) factors supporting the award and explain the resolution of significant factual disputes.”

Cleary v. Cleary, 63 Va. App. 364, 370 n.4, 757 S.E.2d 588, 591 n.4 (2014) (citation omitted).

          The record reveals that the trial court properly considered the relevant statutory factors.

The trial court explicitly stated it had considered the factors in Code § 20-107.1. The trial court

took into account the health of the parties and their ability to take advantage of their prior

educational opportunities and employment. It specifically found that husband’s income was

$59,000, while wife’s was $36,516. It also considered the length of the parties’ marriage, their

lifestyle during the marriage, and their respective monetary and non-monetary contributions and

property interests.

          Wife presented evidence from her 2012 tax returns that her annual gross income was

$36,520. At the time of the hearing in December 2013, she did not present a 2013 tax return or

an income and asset statement based upon her 2013 income and expenses. However, she

testified her 2013 income might be less than 2012, in part because she had devoted significant

time to the divorce litigation. Wife, a residential real estate appraiser, also explained her income

had dropped by nearly half since “the market came to a screeching halt” in 2006. The evidence

established that, over the course of the parties’ thirty-six years of marriage, her total earnings

were $628,771, less than a quarter of the total $2,264,991 earned by the couple over that time

period.

          Husband presented evidence that his gross monthly income was $5,001 in 2013, while

wife’s evidence established her gross monthly income was $3,043, a difference of $1,958. Based

on her net income and her monthly expenses, wife sought spousal support of $2,543. She

maintained her monthly income expenses exceeded her monthly net income by $1,977, and

asked that she be awarded that amount, as well as state and federal support taxes. Taking into

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account her non-monetary contributions to the marriage and the difference in the parties’

incomes, but recognizing wife as a “financially savvy woman” who might have “additional

income producing opportunities,” the trial court awarded less spousal support than the amount

sought by wife.

        The evidence established that, at the time of the hearing, husband’s annual income

exceeded wife’s annual income by approximately $12,500. Furthermore, while wife provided

evidence to the court her 2012 income was $36,520, she explained her income in 2013 had been

less than that. Evidence established that in four of the past ten years, husband’s annual income

was approximately twice as much or more than wife’s annual income. Upon the sale of the

house, husband was relieved of a monthly mortgage obligation of $1,350 as well as associated

upkeep. With regard to living expenses, husband conceded he had not explored living in an

apartment instead of a single family dwelling because an apartment would not accommodate his

boat.

        While husband presented evidence suggesting wife’s gross income in 2013 was at least

$48,115, the trial court was entitled to discount this evidence because it did not establish wife’s

net income, and because it did not take into account her income and expenses for the entire year.

The trial court’s reliance on wife’s most recent tax return was sufficiently “contemporaneous” to

support its decision regarding its findings regarding her income. See Jacobs v. Jacobs, 219 Va.

993, 995, 254 S.E.2d 56, 58 (1979) (holding that an award must be based on “contemporaneous

circumstances” as opposed to uncertain future circumstances).

        Accordingly, as the trial court’s decision was based upon the required statutory factors in

determining the amount of the spousal support award and was supported by the evidence, we

conclude it did not abuse its discretion in awarding wife spousal support that increased from

$500 to $1,600 upon the sale of the marital residence.

                                                -5-
       To the extent husband contends the trial court erred by providing for an “automatic

increase upon the occurrence of a future event,” we decline to consider that argument because he

raises it for the first time on appeal. See Rule 5A:18. While husband objected to the amount of

the spousal support award below, he did not contest the award on the basis that it was based on

an uncertain future event. Under Rule 5A:18, “[t]he same argument must have been raised, with

specificity, at trial before it can be considered on appeal.” Correll v. Commonwealth, 42

Va. App. 311, 324, 591 S.E.2d 712, 719 (2004); see Edwards v. Commonwealth, 41 Va. App.

752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (“Making one specific argument on an issue

does not preserve a separate legal point on the same issue for review.”).

       Although husband asks that we consider this argument pursuant to the ends of justice

exception in Rule 5A:18, the record does not justify application of the exception. In Courembis

v. Courembis, 43 Va. App. 18, 28-29, 595 S.E.2d 505, 510 (2004), we held that application of

the ends of justice exception was limited to a trial court’s failure to determine the presumptive

amount of child support or to make written findings justifying its deviation from that amount.

We explained our decision as follows:

               Husband further argues that the ends of justice exception to Rule
               5A:18 should apply to the issue of spousal support. Relying on
               this Court’s decision in Herring [v. Herring, 33 Va. App. 281, 532
               S.E.2d 923 (2000)], husband claims that the court’s failure to
               comply with the affirmative statutory duty found in Code
               § 20-107.1(F)—which directs the trial court to make “written
               findings and conclusions . . . identifying the factors in subsection
               E which support the court’s order”—constitutes a basis for
               applying the ends of justice exception, notwithstanding his failure
               to bring the alleged error to the court’s attention. We disagree. In
               Herring, we agreed to consider, despite appellant’s failure to
               contemporaneously object at trial, whether the trial court erred by
               failing to determine the presumptive amount of child support,
               pursuant to Code § 20-108.1(B), and by deviating from the
               presumptive amount. Herring, 33 Va. App. at 287, 532 S.E.2d at
               927. We specifically limited our holding to the failure to explain a
               deviation from the guidelines. “To make clear our holding, we
               note that our application of the ends of justice exception in this
                                                -6-
               case . . . applies only to the court’s failure in child support cases to
               expressly calculate the guideline amount or to make the written
               findings required to justify its deviation from that amount.” Id. at
               287 n.2, 532 S.E.2d at 927 n.2. Herring is specifically limited to
               its facts, and we decline to extend its holding to the issue presented
               here.

Id. (emphasis added).

       Here, husband’s arguments pertain to the lack of evidence supporting the trial court’s

spousal support award, not child support, and therefore do not merit our consideration under the

ends of justice exception.

       Likewise, we find no merit in husband’s assertion that the trial court abused its discretion

in awarding spousal support to wife for an indefinite period of time. “[Code § 20-107.1] does

not require the trial court to specify the date of termination of a spousal support award. In fact,

the language allows the trial court to order an award for an undefined duration.” Joynes v.

Payne, 36 Va. App. 401, 423, 551 S.E.2d 10, 21 (2001). Husband cites no authority to the

contrary. Thus, the trial court did not abuse its discretion.

       Finally, husband contends the trial court abused its discretion by denying his motion to

reconsider its decision on January 27, 2014 and by quashing his subpoena duces tecum seeking

to obtain additional information about wife’s total 2013 income. We disagree.

       “Motions to reopen a hearing to take further evidence are matters within the court’s

discretion.” Shooltz v. Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998). Husband

had the opportunity to present evidence regarding wife’s income at the hearing on December 17,

2013. Instead, he filed a motion to reconsider three months after the trial court’s decision in

January 2014 seeking to present that evidence.

       “After a court has concluded an evidentiary hearing ‘during which each party had ample

opportunity to present evidence, it [is] within the court’s discretion to refuse to take further

evidence on this subject.’” Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d 387, 392 (1988)
                                                 -7-
(alteration in original) (quoting Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663

(1986)). Accord Shooltz, 27 Va. App. at 269, 498 S.E.2d at 439-40. To establish an

“entitlement to a rehearing, a petitioner must show either an ‘error on the face of the record, or

. . . some legal excuse for his failure to present his full defense at or before the time of entry of

the decree.’” Holmes, 7 Va. App. at 480, 375 S.E.2d at 392 (quoting Downing v. Huston,

Darbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37 (1927)).

        Here, husband has failed to do either. Husband has failed to establish an error on the face

of the record or offer any legal excuse for his failure to present sufficient evidence of wife’s

2013 income for the hearing in December 2013. Instead, husband merely asserts that allowing

him to undertake additional discovery “would have supplied the answer to the trial court’s

finding that [wife] may have additional income producing opportunities.”

        Thus, the trial court did not abuse its discretion in refusing to allow husband to obtain and

submit additional evidence of wife’s 2013 income prior to the entry of the final divorce decree.

        Accordingly, the trial court’s decision is summarily affirmed. Rule 5A:27.

                                                                                        Affirmed.




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