                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Alston and Senior Judge Coleman
Argued at Richmond, Virginia


ROBIN KEMP SMITH
                                                                MEMORANDUM OPINION * BY
v.     Record No. 1709-11-2                                       JUDGE LARRY G. ELDER
                                                                       MAY 8, 2012
MARK K. SMITH


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Richard D. Taylor, Jr., Judge

                 Robin M. Morgan (Blackburn, Conte, Schilling & Click, P.C., on
                 briefs), for appellant.

                 Charles E. Powers (Terrence R. Batzli; Batzli Wood & Stiles, PC,
                 on brief), for appellee.


       Robin Kemp Smith (wife) appeals from an order granting the motion of Mark K. Smith

(husband) to terminate spousal support. On appeal, wife contends the court erred in terminating

the award after expressly finding both that she demonstrated a specific monthly financial need

not challenged by husband and that he had the ability to meet that need for support. She also

contends the trial court erred in refusing to allow her to present evidence of new events relevant

to her financial needs when more than twelve months had elapsed since the court had received

evidence and the court had not yet issued a letter opinion, especially given that the trial court did

not reserve to her the right to request a reinstatement of support. Husband contends wife’s

appeal is frivolous and that he is entitled to an award of attorney’s fees on appeal. We hold the

court’s rulings did not constitute error, and we affirm. Further, we hold wife’s appeal was not so

frivolous as to entitle husband to the requested award of fees, and we deny that request.

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

                A. SUPPORT RULING AND FAILURE TO FILE TRANSCRIPT

        Code § 20-109(A) permits the court to “increase, decrease, or terminate the amount or

duration of any spousal support and maintenance that may thereafter accrue, whether previously

or hereafter awarded, as the circumstances may make proper.” A party seeking modification of

spousal support bears the burden of proving “both a material change in circumstances and that

this change warrants a modification of support.” Schoenwetter v. Schoenwetter, 8 Va. App. 601,

605, 383 S.E.2d 28, 30 (1989). We must view the facts underpinning the decision whether to

modify a spousal support award under this code section in the light most favorable to the party

who prevailed below. E.g., Richardson v. Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726,

730 (1999). “The determination whether a spouse is entitled to [an increase, decrease or

cessation of spousal] support . . . is a matter within the discretion of the [trial] court . . . .”

Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986).

        “The ‘circumstances’ which make ‘proper’ an increase, reduction or cessation of spousal

support under Code § 20-109 are financial and economic ones.” Hollowell v. Hollowell, 6

Va. App. 417, 419, 369 S.E.2d 451, 452-53 (1988). Thus, the trial court may consider applicable

factors that were previously considered in making an initial award of spousal support pursuant to

Code § 20-107.1, including the earning capacity, obligations, needs, and financial resources of

the parties; the property interests of the parties; the duration of the marriage; and the standard of

living established during the marriage. Compare 1988 Va. Acts ch. 620 (in effect when the

parties separated), with 1994 Va. Acts ch. 518 (in effect when the parties divorced), and 2003




                                                   -2-
Va. Acts ch. 625 (in effect when the parties filed the instant motions to modify support) (all

containing the cited factors). 1

        “[T]he law’s aim is to provide a sum for such period of time as needed to maintain the

spouse in the manner to which the spouse was accustomed during the marriage, balanced against

the other spouse’s ability to pay.” Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990)

(emphases added). A former spouse receiving support “‘ha[s] no right to remain idle at the

expense of [the obligor spouse;] . . . it is [the recipient spouse’s] duty to minimize [the obligor

spouse’s] loss, [even if] it was through [the obligor spouse’s] fault that [the recipient spouse] was

compelled to ask that the contract of marriage be rescinded.’” Baytop v. Baytop, 199 Va. 388,

394, 100 S.E.2d 14, 19 (1957) (quoting Barnard v. Barnard, 132 Va. 155, 164, 111 S.E. 227, 230

(1922)). Whether to impute income to either spouse—a subsidiary component of whether to

order an increase, decrease, or cessation of support—also lies within the sound discretion of the

trial court and will not be overturned on appeal unless “plainly wrong or unsupported by

evidence.” Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999).

        Further, settled principles provide on appeal that

                the judgment of the lower court is presumed to be correct and the
                burden is on the appellant to present to us a sufficient record from
                which we can determine whether the lower court has erred in the
                respect complained of. If the appellant fails to do this, the
                judgment will be affirmed.


        1
          Wife contends on brief that “[t]he Court did not specifically indicate which, if any, of
the statutory or other factors it considered in considering whether to increase, decrease, or
terminate spousal support.” Wife did not raise this issue in the trial court, and thus, it is not
properly before us in this appeal. See Rule 5A:18; cf. West v. West, 53 Va. App. 125, 131, 669
S.E.2d 390, 393 (2008) (holding that Rule 5A:18 barred consideration of a father’s claim on
appeal that the trial court erred in awarding spousal support because the trial court failed to
provide the specific written findings expressly required by Code § 20-107.1(F) for all “suits for
initial spousal support orders filed on or after July 1, 1998, and suits for modification of spousal
support orders arising from suits for initial support orders filed on or after July 1, 1998”). In any
event, the record shows the trial court set out the reasons for its ruling in detail, although it did
not expressly cite to any of the statutory factors by section number or letter.
                                                  -3-
Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256 (1961). Rule 5A:8 provides that “the

transcript of any proceeding is part of the record when it is filed in the office of the clerk of the

trial court within 60 days after entry of the final judgment.” “If . . . the transcript is

indispensable to the determination of the case, then the requirements for making the transcript a

part of the record on appeal must be strictly adhered to.” Turner v. Commonwealth, 2 Va. App.

96, 99, 341 S.E.2d 400, 402 (1986). “When the appellant fails to ensure that the record contains

transcripts or a written statement of facts necessary to permit resolution of appellate issues, any

assignments of error affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii); see

Smith v. Commonwealth, 281 Va. 464, 467-70, 706 S.E.2d 889, 891-93 (2001) (holding that

failure to file a transcript in compliance with Rule 5A:8 is not grounds for dismissal of an appeal

but may nevertheless prevent an appellate court from considering an issue on the merits). Here,

wife’s failure to file a transcript of the second half of the evidentiary hearing, standing alone, is

not fatal to her appeal but may adversely impact her ability to prove error. 2

        Finally, as to the transcripts that are properly before us on appeal, “[w]e will not fix upon

isolated statements of the trial judge taken out of the full context in which they were made, and

use them as a predicate for holding the law has been misapplied.” Yarborough v.

Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). “[A] trial court’s remark is not,

in and of itself, ‘the full context’ simply because it represents the only point at which the court

[expressly] addressed the issue [in dispute].” Bassett v. Commonwealth, 13 Va. App. 580,

583-84, 414 S.E.2d 419, 421 (1992) (applying Yarborough).

        Here, wife contends the trial court found she demonstrated a specific monthly need for

support and that husband had the ability to meet that need. Thus, she contends, she was entitled


        2
         The court’s evidentiary hearing was held on two different days. Husband moved to
dismiss the appeal because wife failed to file a transcript for the second day. We previously
denied that motion subject to reevaluation upon our considering the merits of the appeal.
                                                -4-
to an ongoing, increased award of support. We do not read the trial court’s ruling in this fashion.

Viewing the trial court’s bench ruling and order in light of established principles, we conclude

the trial court held that, even if wife proved a certain level of actual spending, her decisions

regarding that overall level of spending were unwise and the evidence established she had the

ability to support herself at the same standard of living the parties had enjoyed during the

marriage. The trial court noted wife’s propensity to “travel[] and do[] other things before the

rent [sic] is paid for.” It observed she had “at least twice gone back and mortgaged the house

and cashed out on the equity of the home,” such that the mortgage balance, which had been

about $70,000 at the time of the divorce, was over $100,000 higher at the time of the

modification proceedings. The evidence in the record established that, at least partially as a

result, the monthly mortgage payment on the former marital residence had increased by more

than forty percent, from approximately $1,250 in the mid-1990s to almost $1,800 at the time of

the support modification proceedings.

       The court also noted wife’s failure to make any serious attempt to obtain employment or

retraining, despite the court’s ruling in the 1997 divorce, when wife was forty-three years old,

that she was capable of working at least part-time while the parties’ then ten-year-old son

attended school. Wife, who had a college degree in graphic design, had worked about two years

each for two different employers prior to her marriage, in jobs either in her field or closely

related to it, and had worked as husband’s bookkeeper for about ten years during the parties’

marriage, as well. Despite this background, wife admitted that for about thirteen years after the

trial court first imputed part-time income of $900 per month to her in 1997, and for about four

years after the couple’s only child left home to attend college in 2006, she made only one attempt

to find employment. That attempt was limited to contacting a few builders she knew to see if

they would pay her to provide them with interior decorating services. As a result of that

                                                -5-
evidence, the court adopted the opinion of wife’s vocational expert that, as of 2010, she was

capable of earning $2,000 per month or $24,000 per year, and the court imputed income to her in

that amount.

       Further, it was undisputed on the record that wife inherited $300,000 in 2008. The record

supports a finding that wife’s inheritance, if properly invested upon receipt, would have

generated income of almost as much as the court found wife was capable of earning in the

workforce. Wife’s own expert, a certified public accountant, testified on cross-examination that

wife could have purchased a $300,000 annuity which would have generated a fixed monthly

benefit of about $1,500. Thus, the trial court’s 2010 findings indicated wife had a monthly

earning capacity at that time of $2,000 from employment and $1,500 from investments, for a

total imputed income of $42,000 per year.

       Wife admitted in her response to husband’s motion to terminate spousal support that

husband’s income “increased significantly [after] the date of the divorce,” and when the court

terminated wife’s support, it expressly stated it “look[ed] at the lifestyle [wife] was accustomed

to during the marriage.” (Emphases added). The parties had the same educational background,

and although they were married for sixteen years, they resided together as husband and wife for

fewer than ten of those years. The trial court found that the “[a]verage normalized net income”

from husband’s business prior to the parties’ divorce was $30,842 and that the business was “in

essence identical with [husband].” It found further that during the last several years of the

parties’ marriage in the 1990s, they supported three people—husband, wife, and their son—on

husband’s annual income of approximately $40,000 per year.

       For nine years after the 1997 divorce, wife received almost $2,700 per month in spousal

and child support pursuant to the final decree. The court noted at the time of the 1997 decree

that its award left husband “financially strapped.” Further, although the court had ordered wife

                                                -6-
to pay half of son’s private school tuition, husband paid wife’s half, as well. With the potential

employment income imputed to wife by the court in the 1997 decree, wife had a total annual

income during that time of $43,127 3 with which to support two people—herself and the parties’

son—about the same amount the parties had had to support all three of them prior to the divorce.

       Finally, the evidence in the record supported a finding that when the trial court

terminated spousal support in 2010, it did so because wife had the ability to earn $42,000 per

year through employment and investments to support only one person—herself. Thus, although

the cost of living had increased, the record supported a finding that wife had the same amount of

money to support herself in 2010 as the parties had had to support three people—husband, wife,

and son—in the 1990s prior to the parties’ divorce.

       Evidence from the hearing of April 2, 2010, a transcript of which wife failed to make a

part of the record, might have provided additional support for the trial court’s implicit finding

that wife was capable of maintaining herself at the same standard of living the parties had

enjoyed during the marriage. Based on the facts of this case as found by the trial court and our

review of the record before us on appeal, we cannot conclude the trial court abused its discretion

in holding that nineteen years after the parties separated and thirteen years after they divorced,

wife was not entitled to ongoing support from husband at a level that exceeded the standard of




       3
         That income comprised $900 per month in imputed employment income, $2,150 per
month in spousal support, and $543.92 in child support. When the parties’ son left for college in
2006 and child support was terminated, wife’s annual income decreased from $43,127 to
$36,600, comprising imputed employment income and spousal support. Wife did not seek an
increase in spousal support at that time, and in 2008, she received her $300,000 inheritance. We
recognize that child support is not spousal support, and we include the amount of the child
support payment in our discussion solely for purposes of illustrating wife’s standard of living
during the marriage and in the years following the divorce.

                                                -7-
living existing during the parties’ marriage simply because, three years after the divorce,

husband merged his business 4 with another and experienced an increase in his income.

                       B. REFUSAL TO HEAR ADDITIONAL 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.” Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986).

“In order to demonstrate 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 [the court’s ruling].’” Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d

387, 392 (1988) (quoting Downing v. Huston, Parbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37

(1927)). “Because of the need for finality in court adjudications,” four requirements must be met

before a record can be reopened based upon an allegation of newly discovered evidence:

                 (1) the evidence [must have been] discovered after trial; (2) it
                 could not have been obtained prior to trial through the exercise of
                 reasonable diligence; (3) it is not merely cumulative, corroborative
                 or collateral; and (4) [it] is material, and as such, should produce
                 an opposite result on the merits at another trial.

Mundy v. Commonwealth, 11 Va. App. 461, 480, 390 S.E.2d 525, 535, aff’d on reh’g en banc,

399 S.E.2d 29 (1990).

        Here, the evidence, viewed in the light most favorable to husband, supports the trial

court’s decision to deny wife’s motion to submit additional evidence. The record clearly

supports a finding, contrary to requirement (2) above, that the evidence concerning wife’s

alleged difficulty finding employment could easily have been obtained, through the exercise of

reasonable diligence, prior to the February 4 and April 2, 2010 evidentiary hearings. Wife had

known since 1997, when the parties’ son was about ten years old, that the court considered her


        4
            Wife was compensated for her share of husband’s business in the equitable distribution.
                                                -8-
capable of working at least part-time and had imputed income to her based on that basis.

However, other than to contact a few people she knew in the construction industry, she did not

apply for any jobs until after the February 2010 evidentiary hearing, and when she first asked her

vocational expert for help locating employment, she admitted she did so because the trial court

had asked her at that hearing “why she wasn’t working.” In 2009, husband’s vocational expert

assessed wife’s employability and opined she was capable of obtaining employment earning

$31,000 per year within a short time. Wife’s vocational expert opined on July 16, 2009, that

wife was capable of earning $18,000 to $24,000 per year within several months of beginning a

job search. Thus, although wife knew by July 2009 that her expert believed she was capable of

obtaining employment, she did not ask him for help finding employment at that time. Further,

all she had done by the time of her expert’s deposition on March 23, 2010, was to submit a few

job applications and “start[] to develop a resume.” (Emphasis added). This evidence, viewed in

the light most favorable to husband, supported a finding that wife could have obtained her

claimed after-discovered evidence prior to trial through the exercise of reasonable diligence if

she had begun to look for employment in a more timely fashion.

       The record also supports a finding, contrary to requirement (4) above, that the evidence

was not such as “should produce an opposite result on the merits at another trial.” It was the

testimony of wife’s expert witness the trial court adopted in concluding in 2010 that she was able

to obtain employment earning $24,000 per year. Further, wife’s expert agreed with the statement

that “[wife] would have had a far easier task finding work fourteen years [earlier] . . . than she

[would] now” because “[t]he longer the gap in the work history, the more difficult it is to

overcome.” In light of this evidence, the trial court was not required to alter its finding and

conclude wife was incapable of earning the income imputed simply because wife claimed she

had tried unsuccessfully to obtain employment between the September 21, 2010 bench ruling and

                                                -9-
the filing of her January 28, 2011 motion. Thus, the record supports a finding that wife’s

proffered new employment evidence, if admitted, would not yield a different result.

       In addition, the alleged changes in wife’s health did not require the court to hear

additional evidence. Given wife’s education and employment history, the duration of the parties’

marriage, the length of time since they had divorced, wife’s receipt of a sizeable inheritance, and

the fact that husband also had health problems, the trial court did not abuse its discretion in

concluding that an additional evidentiary hearing would not yield a different result and, thus, was

not warranted.

     C. HUSBAND’S REQUEST FOR ATTORNEY’S FEES AND COSTS ON APPEAL

       When determining the “propriety of an award of attorney’s fees for efforts expended on

appeal,” we “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).

       While wife did not prevail on appeal, we hold, based on the entire record, that her

position was not so unreasonable as to entitle husband to an award of attorney’s fees and costs

incurred in this appeal, particularly in light of husband’s significantly greater income and earning

potential. Therefore, we deny husband’s request for an award of fees and costs on appeal.

                                                 II.

       For these reasons, we hold the court’s rulings did not constitute error on the facts of this

case, and we affirm. We also deny husband’s request for attorney’s fees.

                                                                                           Affirmed.




                                                - 10 -
Alston, J., concurring.

       I join in the majority’s thorough and well-reasoned analysis and the result in this case. I

write separately, however to highlight an apparent incongruity in our statutes. As the majority

accurately notes, wife waived the argument she makes on brief that the trial court failed to make

required written findings under Code § 20-107.1(E)’s factors to support its decision to terminate

her spousal support. I agree with the majority’s application of Rule 5A:18 on this issue, but had

wife properly preserved this argument, a potentially inharmonious application of statutory

construction might be presented.

       Our statutes and precedents make clear that before a trial court modifies a spousal support

award of defined duration pursuant to Code § 20-109(B), it must make certain written factual

findings under Code § 20-107.1(E). 5 See Driscoll v. Hunter, 59 Va. App. 22, 35-36, 716 S.E.2d

477, 483 (2011). In contrast, Code § 20-109(A), the statutory framework for modifying a

permanent spousal support award, allows for termination of permanent spousal support awards

“as the circumstances may make proper” without explicitly requiring a trial court to refer to the

factors in Code § 20-107.1(E) to support its decision. This Court has construed “the

circumstances” mentioned in Code § 20-109(A) to include the remaining sentences of Code

§ 20-109(A), referring to habitual cohabiting by the recipient spouse, Stacy v. Stacy, 53 Va. App.

38, 42, 669 S.E.2d 348, 350 (2008), and the parties’ financial and economic circumstances,

Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988) (“The right to spousal

support is terminated only by death of either party or remarriage of the dependent spouse, or a



       5
          Of course, Code § 20-109(B)’s plain language limits its application to “suits for initial
support orders filed on or after July 1, 1998, and suits for modification of spousal support orders
arising from suits for initial support orders filed on or after July 1, 1998.” I do not disagree with
the majority’s implicit conclusion that Code § 20-109(B) is inapplicable to the case at bar
because the suit for the initial support order was entered prior to July 1, 1998, and the spousal
support award is not one of defined duration.
                                                  - 11 -
change in the financial status of the parties such that support is no longer needed or can no longer

be paid.”). Despite the potentially draconian result of terminating a permanent spousal support

award, the legislature has not required the same written findings by a trial court when it makes a

decision to terminate a permanent spousal support award. Without a clear legislative direction

on this subject, the theoretical incongruity in the analytical framework between Code

§ 20-109(A) and -109(B) will undoubtedly present issues of significance for this Court to

resolve. For these reasons alone, I write separately to highlight this concern, but otherwise

unreservedly concur in the disposition of the majority.




                                               - 12 -
