                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Powell
Argued at Alexandria, Virginia


DAVID B. RITTER
                                                              MEMORANDUM OPINION * BY
v.      Record No. 0622-09-4                                    JUDGE CLEO E. POWELL
                                                                  DECEMBER 1, 2009
SHARON RITTER


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Bruce D. White, Judge

                  (Paula W. Rank; Paula W. Rank Family Law & Mediation, PLC,
                  on brief), for appellant. Appellant submitting on brief.

                  Morgan Brooke-Devlin (Brooke-Devlin & Nester, on brief), for
                  appellee.


        David Ritter (“husband”) appeals an order of the Circuit Court of Fairfax County striking

his request for affirmative relief from his answer. Husband also appeals the trial court’s refusal

to entertain his request for spousal support and attorney’s fees. Finding no error, we affirm the

decision of the trial court.

                                           BACKGROUND

        Husband married Sharon Ritter (“wife”) on September 7, 1986. On December 15, 2007,

the parties separated, and wife filed for divorce on December 19, 2007. On November 19, 2008,

eleven months later, husband filed a motion for leave to file a late answer and cross-complaint.

Wife did not object to husband’s late answer, but did object to his being permitted to file a

cross-complaint. After hearing argument from both parties, the trial court entered an order

granting husband leave to file a late answer, but denying his motion to file a late cross-complaint.

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On December 22, 2008, husband filed his answer to wife’s complaint for divorce. As

part of his answer, husband included a section titled “Affirmative Defenses,” which set forth

twenty-three (23) paragraphs of allegations of fault against wife. Relying on these allegations of

fault, husband asked that the trial court deny wife’s prayer for divorce and, instead, grant his

prayer for divorce, as well as award him spousal support and attorney’s fees.

       On January 6, 2009, wife filed a motion to strike husband’s affirmative defenses and his

requests for affirmative relief. Wife argued that husband was seeking to circumvent the trial

court’s ruling denying husband’s motion to file a late cross-complaint. On January 9, 2009, after

hearing argument from both parties, the trial court granted wife’s motion and struck all of the

affirmative defenses set forth in husband’s answer, as well as all requests for affirmative relief

sought by husband. Additionally, the trial court awarded wife attorney’s fees related to the

motion to strike.

       On February 27, 2009, the trial court entered the final divorce decree. Husband appeals.

                                            ANALYSIS

       On appeal, husband argues that the trial court abused its discretion in finding that his request

for affirmative relief was analogous to a cross-complaint. Our Supreme Court has recognized that

one of “[t]he primary purposes of a cross-bill [is] to obtain affirmative relief on behalf of the

defendant or defendants filing such a bill . . . .” Brewer v. Brewer, 199 Va. 626, 628, 101 S.E.2d

516, 518 (1958) (emphasis added). Furthermore,

               where a defendant has set up a claim for affirmative relief in a
               defensive pleading, the court, in order to do complete justice
               between the parties and avoid a multiplicity of suits, may in its
               discretion treat an answer as a cross-bill by appropriate order.

Shevel’s, Inc.-Chesterfield v. Southeastern Associates, Inc., 228 Va. 175, 184, 320 S.E.2d 339,

344 (1984).



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          It is uncontested that husband sought affirmative relief in his answer. As it is within the trial

court’s discretion to treat such a request as a cross-complaint, we cannot say the trial court erred in

the present case.

          Husband next argues that the trial court abused its discretion in failing to consider his

request for spousal support, because the trial court, in effect, denied him leave to amend his

pleadings.

                  Rule 1:8 states, in pertinent part, “No amendments shall be made
                  to any pleading after it is filed save by leave of court. Leave to
                  amend shall be liberally granted in furtherance of the ends of
                  justice.” On appeal, review of the trial court’s decision to grant or
                  deny a motion to amend is limited to the question whether the trial
                  judge abused his discretion.

Hetland v. Worcester Mut. Ins. Co., 231 Va. 44, 46, 340 S.E.2d 574, 575 (1986).

          It is important to note, however, that “such amendments are not matters of right, and

should not be permitted to delay, impede, or embarrass, the administration of justice.”

Richmond College v. Scott-Nuckols Co., 124 Va. 333, 340, 98 S.E. 1, 3 (1919) (emphasis

added).

          In the present case, husband knew before he filed his answer that he was barred from

making a cross-complaint. By seeking spousal support, a form of affirmative relief, in his

answer, husband was, in effect, attempting to circumvent the trial court’s order by including a

cross-complaint within his answer.

          Furthermore, allowing such a request for affirmative relief would have inevitably resulted

in a delay. Although husband argues that wife would not have been prejudiced because the

question of the parties’ respective incomes and earning capacities was at issue, the fact remains

that no discovery had been performed by either party in contemplation of spousal support.

Husband filed his answer on December 22, 2008, and the scheduling order required all discovery



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be completed by December 26, 2008. Thus, without a continuance, both parties would only have

four days to complete discovery relative to the issue of spousal support.

        Wife requested that we award her attorney’s fees and costs incurred in connection with

this 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). Having reviewed

and considered the entire record in this case, we hold that wife is entitled to reasonable attorney’s

fees and costs.

                                            CONCLUSION

        For the foregoing reasons we affirm the decision of the trial court and remand this case

for the trial court’s determination and award of the appropriate appellate attorney’s fees and costs

to wife.

                                                                                             Affirmed.




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