                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              REGINALD CONRAD COLLARD
                                                                                           MEMORANDUM OPINION* BY
              v.            Record No. 0406-17-4                                            JUDGE TERESA M. CHAFIN
                                                                                               NOVEMBER 14, 2017
              PATRICIA ANN COLLINS


                                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                                                Jeanette A. Irby, Judge

                                           Jon D. Huddleston (Sevila, Saunders, Huddleston & White, P.C., on
                                           brief), for appellant.

                                           Patricia Ann Collins, pro se.


                            On December 2, 2016, the Circuit Court of Loudoun County entered a final decree of

              divorce dissolving the marriage of Patricia Ann Collins and Reginald Conrad Collard. In the

              final decree, the circuit court ordered Collard to pay Collins $2,625 per month in spousal

              support. Collard challenges the circuit court’s spousal support decision on appeal. He contends

              that the circuit court erred by awarding Collins spousal support in the absence of any evidence

              establishing his income or his ability to pay the support at issue. He also argues that the circuit

              court erred by relying on his payment of certain expenses pursuant to a pendente lite order to

              determine that he had the ability to pay spousal support and to establish the amount of the

              spousal support award. For the reasons that follow, we agree with Collard’s arguments and

              reverse the circuit court’s spousal support decision.




                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                               I. BACKGROUND

              “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.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the

evidence is as follows.

              Collins and Collard were married on August 27, 1999. They separated sometime in July

of 2012. On September 10, 2015, Collins filed a complaint for divorce and requested, among

other things, for the circuit court to award her both pendente lite and permanent spousal support.1

She filed a separate motion for pendente lite spousal support on September 15, 2015. Collard

filed a cross-complaint for divorce on October 8, 2015.

              On January 6, 2016, the circuit court entered a consent order addressing Collins’s request

for pendente lite relief. In pertinent part, that order obligated Collard to make certain monthly

payments on behalf of Collins. Specifically, Collard was required to pay Collins’s rent, electric

bill, DirecTV bill, car loan payment, and car insurance payment. The pendente lite order,

however, expressly stated that these payments were not intended to be construed as spousal

support payments and that “no spousal support . . . shall be paid between the parties.” Pursuant

to Code § 20-103(E), the order also stated that its terms had “no presumptive effect” and that it

was not “determinative when adjudicating the underlying cause.”

              The circuit court held a hearing on the parties’ divorce complaints on October 20, 2016.

Although Collins was initially represented by counsel in this matter, she proceeded at the hearing

pro se. At the hearing, Collins attempted to present her evidence by submitting a folder of

documents to the circuit court. These documents included a written narrative of Collins’s



                                                            
              1
        Collins filed an amended complaint on May 23, 2016, and again requested pendente lite
and permanent spousal support.
                                            - 2 - 
intended testimony, a document setting forth her monthly income and expenses, financial

documents, and various bills. The majority of these documents were admitted into evidence.

       The evidence presented by Collins focused exclusively on her needs and circumstances.

It established her income, expenses, and employment capacity. The evidence, however, failed to

establish the current financial circumstances of Collard. Notably, Collins failed to present any

evidence establishing Collard’s income or his ability to pay spousal support. While Collard

presented evidence to establish the statutory requirements for his divorce, he did not present

evidence regarding his income or financial circumstances.

       At the conclusion of evidence, Collins requested the circuit court to award her spousal

support in the amount of $6,500 per month. Collard argued that Collins had failed to present any

evidence establishing his ability to pay spousal support, and asked the circuit court to deny

Collins’s request on that basis.

       The circuit court acknowledged that the parties had presented “limited” evidence

pertaining to their financial resources, and expressly recognized that neither party presented any

evidence establishing Collard’s income. The circuit court, however, noted that Collard had

previously made payments to Collins pursuant to the pendente lite order. As Collard had failed

to present any evidence establishing that he could not continue to make these payments, the

circuit court awarded Collins spousal support in the amount of $2,625 per month, an amount

equivalent to Collard’s pendente lite payments. The circuit court also granted the parties a

divorce and divided their property and debt. Collard objected to the circuit court’s spousal

support decision, and this appeal followed.

                                         II. ANALYSIS

       On appeal, Collard argues that the circuit court erred by awarding Collins spousal support

based on the evidence presented in this case. Collard contends that the evidence failed to

                                               - 3 - 
establish his income or his ability to pay the spousal support award at issue. Collard also

contends that the circuit court erred by relying on the payments he made pursuant to the pendente

lite order to presume that he had the ability to pay spousal support and to set the amount of his

spousal support obligation. We agree with Collard’s arguments.

                              A. THE SPOUSAL SUPPORT AWARD

        “When making an award of spousal support, the trial court must consider all the factors

enumerated in Code § 20-107.1(E) and set forth findings or conclusions identifying the statutory

factors supporting that award.” Andrews v. Creacey, 56 Va. App. 606, 634, 696 S.E.2d 218, 231

(2010). “A party seeking spousal support bears the burden of proving all facts necessary for an

award . . . .” Robbins v. Robbins, 48 Va. App. 466, 484, 632 S.E.2d 615, 624 (2006).

        “Whether and how much spousal support will be awarded is a matter of discretion for the

trial court.” Congdon, 40 Va. App. at 262, 578 S.E.2d at 836 (quoting Northcutt v. Northcutt, 39

Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)). “On appeal, a trial court’s decision on this

subject will not be reversed ‘unless there has been a clear abuse of discretion.’” Id. “An abuse

of discretion . . . exists if the trial court fails to consider the statutory factors required to be part

of the decisionmaking process, or makes factual findings that are plainly wrong or without

evidence to support them.” Id. at 262, 578 S.E.2d at 836-37 (citations omitted).

        Code § 20-107.1(E) required the circuit court to consider Collard’s ability to pay spousal

support before it awarded spousal support to Collins. Specifically, Code § 20-107.1(E)(1)

required the circuit court to consider “[t]he obligations, needs and financial resources of the

parties, including but not limited to income from all pension, profit sharing or retirement plans,

of whatever nature.” While the circuit court concluded that Collard had the ability to meet his

spousal support obligation, this decision was not supported by the evidence presented in this

case.

                                                   - 4 - 
              In the present case, Collins failed to present any evidence establishing Collard’s income

or his ability to pay the spousal support award at issue. All of the evidence that Collins

presented focused on her own financial needs, and the evidence presented by Collard did not

address his financial circumstances or ability to pay spousal support. Although the evidence

established that Collard owned a construction business, Collins did not provide any evidence

regarding Collard’s income or the financial condition of his business.2

              Under these circumstances, we conclude that the circuit court abused its discretion by

awarding spousal support to Collins. The circuit court’s determination that Collard had the

ability to pay the spousal support award at issue was not supported by the evidence.

Accordingly, we reverse the circuit court’s spousal support decision.

              While we acknowledge that the circuit court based its spousal support decision on the

payments that Collard made pursuant to the pendente lite order, we conclude that its reliance on

the pendente lite payments was improper for several reasons.

              First, the pendente lite order had no presumptive effect on the circuit court’s

determination of the final spousal support award. Pursuant to Code § 20-103(E) and the express

terms of the pendente lite order, the pendente lite order was not determinative in the adjudication

of the spousal support issue. See Code § 20-103(E) (“An order entered pursuant to this section

shall have no presumptive effect and shall not be determinative when adjudicating the underlying

cause.”). Thus, the circuit court erred by relying on the pendente lite order to establish a

presumptive amount of Collins’s spousal support award.




                                                            
              2
         The evidence established that Collard lived with his daughter and that they split their
rent and other household bills. The evidence further established that Collard and Collins had
declared bankruptcy twice during their marriage. The circuit court acknowledged that both
parties had “limited financial resources.”
                                              - 5 - 
          Second, the determination of a pendente lite spousal support award and the determination

of a final spousal support award involve the consideration of different circumstances.

                 Code § 20-107.1 contains nine factors which the court must
                 consider in awarding spousal support upon dissolution of a
                 marriage. Code § 20-103 requires no such considerations, except
                 that such sums awarded are “necessary for the maintenance and
                 support of the petitioning spouse” or “to enable such spouse to
                 carry on the suit.” Pendente lite support may be awarded
                 irrespective of the spouse’s right to receive support following the
                 dissolution of the marriage. Spousal support awards under Code
                 § 20-107.1 may also exceed what is “necessary” to maintain the
                 spouse as the term is used in Code § 20-103. Thus, an award of
                 Code § 20-107.1 spousal support made pursuant to Code § 20-103
                 criteria would be erroneous as would an award of Code § 20-103
                 pendente lite support based upon the criteria of Code § 20-107.1.

Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903-04, 407 S.E.2d 37, 40 (1991) (emphasis

added).

          Third, and most importantly, the pendente lite spousal support award did not reflect

Collard’s present ability to pay the spousal support award at issue. The pendente lite award was

entered on January 6, 2016, over ten months before the circuit court made its spousal support

decision in this case. Numerous circumstances could have changed between the entry of the

pendente lite order and the final spousal support decision, and Collard’s ability to pay may have

changed drastically. Thus, in the absence of additional evidence pertaining to Collard’s current

financial condition, the pendente lite order and the payments made pursuant to it failed to

establish Collard’s continued ability to pay spousal support.

          Pursuant to Code § 20-107.1(E), a party requesting spousal support must present

evidence establishing the opposing party’s ability to pay a spousal support award. See Robbins,

48 Va. App. at 484, 632 S.E.2d at 624. In the present case, Collins failed to present any evidence

beyond the pendente lite order to establish Collard’s financial circumstances. In the absence of

any additional evidence establishing Collard’s present ability to pay the spousal support award at

                                                 - 6 - 
issue, we conclude that the spousal support award was not adequately supported by the evidence

and we reverse the circuit court’s decision on that basis.

                                     B. ATTORNEY’S FEES

       Collard has requested the award of appellate attorney’s fees and the costs of the appeal.

               The rationale for the appellate court being the proper forum to
               determine the propriety of an award of attorney’s fees for efforts
               expended on appeal is clear. The appellate court has the
               opportunity to view the record in its entirety and determine
               whether the appeal is frivolous or whether other reasons exist for
               requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

       We conclude that an award of costs and attorney’s fees is not appropriate under the

circumstances of this case. Accordingly, we deny Collard’s request.

                                         III. CONCLUSION

       In summary, we conclude that the evidence presented by Collins failed to establish

Collard’s ability to pay the spousal support award at issue. We also conclude that the circuit

court erred by awarding Collins spousal support based on the terms of the pendente lite order.

Therefore, we reverse the circuit court’s spousal support decision and remand this case to the

circuit court for the entry of an order consistent with this opinion. We also deny Collard’s

request for costs and attorney’s fees.

                                                                          Reversed and remanded.




                                                - 7 - 
