                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick


TIMOTHY G. BROOKER
                                                                    MEMORANDUM OPINION*
v.     Record No. 2445-06-1                                             PER CURIAM
                                                                        JULY 10, 2007
JUDI E. BROOKER


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                               Christopher W. Hutton, Judge

                 (Kevin P. Shea; Charles E. Haden, on brief), for appellant.

                 (Joseph W. Hood, Jr.; Shannon Dee Lemm, on brief), for appellee.


       Timothy G. Brooker, husband, appeals from the trial court’s final decree granting Judi E.

Brooker, wife, a divorce. On appeal, husband contends the trial court erred by: (1) considering

evidence of an alleged affair that was irrelevant to the equitable distribution and spousal support

awards; (2) employing the equitable distribution statute to punish him economically; (3) granting

wife a spousal support award of $1,000 per month; and (4) ordering him to pay wife’s attorney’s

fees. In addition, wife moves for an award of attorney’s fees and costs incurred on this appeal.

Upon reviewing the record and briefs, we conclude that this appeal is without merit. Accordingly,

we summarily affirm the decision of the trial court. See Rule 5A:27. We remand for the trial court

to enter an award of appellate attorney’s fees and costs to wife.

                                             Background

       “On appeal, we construe the evidence in the light most favorable to wife, the prevailing

party below, granting to her evidence all reasonable inferences fairly deducible therefrom.” Donnell


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing McGuire v. McGuire, 10

Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).

       The parties married in 1982 and separated in 2003. They had five children during the

marriage, one of whom was a minor at the time of the entry of the final decree of divorce.

       The trial court held a hearing on spousal support and equitable distribution issues on June

15, 2006. The parties presented evidence showing that, during the last ten years of the marriage,

their relationship began to decline. Wife had worked and provided monetary support for the family

until 1998. Wife began to experience depression and anxiety and was hospitalized for the treatment

of depression on several occasions. Wife testified that husband’s controlling conduct toward her

and his repeated threats to take the children away from her contributed to her emotional issues. She

also stated that husband was controlling the family’s finances and she suspected husband of having

an affair in 1991. Wife’s psychotherapist testified that wife suffered psychological abuse from

husband.

       A vocational counselor testified that wife was currently “not ready” for employment based

upon her emotional and psychological issues. Wife’s psychotherapist also testified that wife could

not enter the work force “in the immediate future.”

       At the time of the hearing, husband was paying wife $150 per month in pendente lite

spousal support and she was receiving $875 per month in social security disability benefits. During

the separation, wife received $25,000 from husband for her interest in the former marital home. She

testified she had spent most of that money on living expenses, repayment of loans, and a used car,

and she had $2,000 of that money remaining. At some point after the separation, wife received a

lump sum social security award, but she could not recall the amount of that award. Wife testified

she found it difficult to live on $1,025 per month and she requested spousal support in part so that




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she could move from a small one-bedroom apartment to a two-bedroom apartment and have

overnight visitation with her son.

       Husband worked during the marriage, and he completed a nursing degree in 1998. At the

time of the hearing, he earned about $5,100 per month. He testified he has $1,550 in outstanding

medical bills, and he receives $241 per month from wife’s social security disability payment for

their son. Husband owns two boats and makes a monthly payment for one of them. In addition, he

pays monthly boat slip rental fees for each boat. Husband testified he was supportive of wife during

her struggles with emotional matters.

       In its final decree of divorce entered on August 25, 2006, the trial court stated “it is

absolutely certain that [husband]’s actions over the past ten years or more have exacerbated [wife’s

emotional] problems.” The court also found that husband had “taken advantage of [wife]’s fragile

condition to his financial and economic advantage.” The trial court ordered husband to pay wife

monthly spousal support of $1,000. The court also awarded husband the two boats and wife a

dining room table, yet further decreed that, with exception of those awards, “the parties are hereby

denied equitable distribution.” The trial court ordered husband to pay wife’s attorney’s fees in the

amount of $7,174.

                                               Analysis

                                                   I.

       Husband argues the trial court improperly considered evidence of an alleged affair in

making the equitable distribution and spousal support awards.

       Code §§ 20-107.1(E) and 20-107.3(E)(5) require a trial court to consider “the circumstances

and factors which contributed to the dissolution of the marriage” in determining equitable

distribution and spousal support. See also Cousins v. Cousins, 5 Va. App. 156, 158-59, 360 S.E.2d




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882, 884 (1987) (finding trial court properly considered evidence of husband’s adultery when

making an award, even though divorce was not awarded on those grounds).

        As part of her explanation as to why the marriage began to unravel, wife testified she only

suspected “something was going on” when her husband studied with an unmarried woman during

nursing school. Pursuant to Code §§ 20-107.1(E) and 20-107.3(E)(5), the trial court did not err in

admitting this evidence and considering it when making the equitable distribution and spousal

support awards.

                                                    II.

        Husband contends the trial court improperly used the equitable distribution statute to

“punish” him economically. The trial court awarded husband the two boats and awarded wife a

dining room table. The court specifically declined to make any further equitable distribution award.

Nothing in the trial court’s rulings indicates an intent to punish husband. Furthermore, “[a] decision

regarding equitable distribution . . . will not be reversed unless it is plainly wrong or without

evidence to support it.” Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139 (1997).

On this record, we cannot say the trial court abused its discretion.

                                                    III.

        Husband argues the trial court erred by awarding wife $1,000 per month in spousal support.

        “In awarding spousal support, the [trial court] must consider the relative needs and abilities

of the parties. [The trial court] is guided by the . . . factors that are set forth in Code § 20-107.1.”

Joynes v. Payne, 36 Va. App. 401, 419, 551 S.E.2d 10, 19 (2001). “‘In fixing the amount of the

spousal support award, . . . the 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)).

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        “The amount of temporary support is not a factor under Code § 20-107.1 that the [trial

court] must consider when determining the appropriate amount of spousal support.” Holmes v.

Holmes, 7 Va. App. 472, 484, 375 S.E.2d 387, 394 (1988). Furthermore, as stated above, the trial

court may consider the circumstances and factors which contributed to the dissolution of the

marriage when awarding spousal support. Code § 20-107.1(E).

        Based on the evidence presented, the trial court found that wife has “a dire need for spousal

support” and husband has “an ability to pay it.” Indeed, the evidence showed husband’s monthly

income is more than $5,000, whereas wife’s monthly income is $875, without the pendente lite

support. In addition, evidence was presented that wife is unable to resume employment at this time

and that husband’s conduct during the marriage contributed to wife’s emotional and financial

challenges and the dissolution of the marriage. Thus, the evidence established a foundation

supporting the trial court’s award of spousal support, and the trial court did not abuse its discretion

in making the award.

                                                  IV.

        Husband argues the trial court erred by awarding wife attorney’s fees. An award of

attorney’s fees is a matter within the sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. See Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558

(1987). “The key to a proper award of counsel fees is reasonableness under all the circumstances.”

Joynes, 36 Va. App. at 429, 551 S.E.2d at 24. Upon review of this record, we cannot say that the

trial court abused its discretion in awarding wife attorney’s fees.

                                                   V.

        Finally, wife has moved for an award of attorney’s fees and costs incurred during this

appeal. Upon a review of the record in its entirety, we find an award is appropriate and grant the




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request for her attorney’s fees and costs. We remand the case to the trial court to fix a reasonable

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

          Accordingly, we affirm but remand for an award to wife of attorney’s fees and costs on

appeal.

                                                                       Affirmed and remanded.




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