                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia


VIRGINIA P. BOLTON
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2723-06-4                                     JUDGE LARRY G. ELDER
                                                                     JULY 3, 2007
DAVID M. BOLTON


                     FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                               H. Harrison Braxton, Jr., Judge

                 Lawrence D. Diehl for appellant.

                 Mary Beth Long (T. Michael Blanks & Associates, on brief), for
                 appellee.


       Virginia P. Bolton (wife) appeals from a final decree of divorce ruling that David M.

Bolton (husband) was relieved of any future obligation to pay her spousal support. On appeal,

she contends the court erroneously denied her request for support in light of the fact that the

commissioner recommended it, husband filed no exception to that recommendation, and the

court had insufficient facts upon which to base a denial of support. She also contends the trial

court erred in denying the request for support without making the written findings and

conclusions required by the spousal support statute. Finally, she requests an award of attorney’s

fees and costs. Husband opposes wife’s assignments of error and makes his own request for an

award of fees and costs. We hold the court erred in failing to make the written findings required

to support its denial of spousal support. Thus, we reverse the denial and remand for further




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
proceedings consistent with this opinion. We decline the parties’ competing requests for

attorney’s fees and costs.

                                                 I.

                                                 A.

         WRITTEN FINDINGS AND REFUSAL TO AWARD SPOUSAL SUPPORT

       Code § 20-107.1(F), as amended in 1998, provides as follows:

               In contested cases in the circuit courts, any order granting,
               reserving or denying a request for spousal support shall be
               accompanied by written findings and conclusions of the court
               identifying the factors in subsection E which support the court’s
               order. If the court awards periodic support for a defined duration,
               such findings shall identify the basis for the nature, amount and
               duration of the award and, if appropriate, a specification of the
               events and circumstances reasonably contemplated by the court
               which support the award.

See also 1998 Va. Acts ch. 604; Breummer v. Breummer, 46 Va. App. 205, 207, 616 S.E.2d 740,

740-41 (2005) (recognizing new statutory requirement). Although a trial court is not “required

to quantify or elaborate exactly what weight or consideration it has given to each of the statutory

factors” in Code § 20-107.1(E), Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986), it is required, under Code § 20-107.1(F), to identify those factors listed in subsection (E)

that support the court’s award of spousal support in the amount and for the duration awarded.

       Here, the trial court’s written explanation in the final decree for its denial of an award of

spousal support was limited to the following: “[T]he Court, having considered the factors set

forth in Section 20-107.1 of the Code of Virginia, as amended, makes the following provisions

for spousal support: [Wife] is denied any further spousal support effective September 5, 2006.”

The final decree incorporated the commissioner’s report “by reference as if fully set forth

herein,” but the decree also specifically disclaimed incorporation of “those portions of the

Commissioner’s Report in conflict with this Order.” Thus, even assuming some of the

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commissioner’s written findings regarding spousal support were effectively incorporated into the

final decree, nevertheless, the decree neither contains nor incorporates any written explanation

for why the trial court denied wife’s request for spousal support when the commissioner had

recommended making an award for a defined duration. Assuming without deciding that the trial

court’s October 3, 2006 memorandum to the file, in which the court noted wife had returned to

work and no longer had custody of the children, contains sufficient written findings to explain

the basis for the denial of spousal support, the final decree does not incorporate that

memorandum, and nothing in the record indicates that the parties had contemporaneous

knowledge of the filing of that memorandum. Thus, those written findings do not

“accompan[y]” the denial of support as required by Code § 20-107.1. Similarly, to the extent the

transcript of the trial court’s statements from the bench on September 5, 2006, might constitute

sufficient written findings if incorporated into the final decree, the trial court also did not

incorporate those findings.

        Because the trial court failed to make the necessary written findings to accompany its

denial of spousal support, we remand to the trial court for additional proceedings consistent with

this opinion. We also note for purposes of remand that a denial of a request for spousal support

must take into consideration the income and expenses of both parties. See Code

§ 20-107.1(E)(1). Assuming the trial court was entitled to treat as a stipulation the statement of

wife’s counsel that wife had obtained full-time employment, nothing in the record establishes

how much wife was earning. Wife’s counsel’s statements also indicate that wife had obtained

her own residence, which meant that she no longer resided with the elderly woman for whom she

had cared in exchange for a portion of her room and board. Thus, the evidence presented to the

commissioner regarding wife’s expenses also likely was no longer accurate.




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                                                 B.

                        ATTORNEY’S FEES AND COSTS ON APPEAL

        The parties have filed competing requests for attorney’s fees and costs incurred on

appeal. We decline those requests.

        Because wife’s appeal addressed “appropriate and substantial issues,” Estate of Hackler

v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), and husband has not prevailed, we

do not award him fees or costs. Although wife prevailed, we also see no reason to grant her

request for an award of attorney’s fees and costs. The record contains no evidence of wife’s

actual income at the time of entry of the final decree appealed from, but it does indicate that she

received substantial assets pursuant to the parties’ property settlement agreement, which was

incorporated into the final decree. Further, the errors requiring appeal and reversal were not the

fault of husband, and the record contains no indication that he “generated unnecessary delay or

expense in pursuit of [his] interests.” Id. Thus, we deny wife’s request for an award of fees and

costs in this appeal.

                                                 II.

        For these reasons, we reverse the trial court’s denial of spousal support, deny the parties’

competing requests for attorney’s fees, and remand for further proceedings consistent with this

opinion.

                                                                           Reversed and remanded.




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