                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, AtLee and Senior Judge Haley
UNPUBLISHED


              Argued at Richmond, Virginia


              OSCAR O. OZFIDAN
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 1265-14-2                                   JUDGE RANDOLPH A. BEALES
                                                                                    MAY 5, 2015
              PAMELA L. OZFIDAN


                                     FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                               Catherine C. Hammond, Judge

                                A. Russell Watson (Hairfield Morton, PLC, on briefs), for
                                appellant.

                                Misty D. Evans (Law Office of M.D. Evans, PLLC, on brief),
                                for appellee.


                      The circuit court entered a final decree on June 9, 2014 granting Pamela L. Ozfidan (wife) a

              divorce from Oscar O. Ozfidan (husband). Husband appeals several rulings from the final decree

              relating to equitable distribution and spousal support. For the following reasons, we affirm in part,

              reverse in part, and remand the matter to the circuit court for further proceedings consistent with this

              opinion.

                                                         I. BACKGROUND

                      Under settled principles of appellate review, we view the evidence in the light most

              favorable to wife, as the party prevailing below, Chretien v. Chretien, 53 Va. App. 200, 202, 670

              S.E.2d 45, 46 (2008), and we grant to wife “all reasonable inferences fairly deducible

              therefrom,” Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). The

              parties were married in Texas in 1998, when husband was pursuing his doctorate in economics.

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Wife worked in an advertising position for a local newspaper at that time, while husband earned

some additional income as a teaching assistant. The parties moved to Richmond when husband

accepted a position as an economist for the Commonwealth of Virginia. Wife worked as a flight

attendant until her pregnancy with the parties’ twin children, who were born in November 2005.

Wife was put on bed rest for nine weeks prior to giving birth, and the children were born

premature. The parties agreed that wife would be a stay-at-home mother until the children

started school.

       The parties encountered financial difficulty during the marriage, requiring husband at

times to take a second job. The record on appeal discloses a significant amount of marital credit

card debt. In addition, the parties owed the lender more money than the marital home’s assessed

value. Wife testified that husband handled the family’s finances. She testified that, while she

was aware that she was an account holder for “a few different cards,” she did not realize until the

divorce litigation between the parties that there were other credit cards taken out in her name that

had high balances.

       According to wife’s testimony, husband committed acts of physical abuse against her

“every couple of years” from the start of the marriage, including a time when their children were

three when “he beat me up” and their “daughter walked in on that.” Wife testified that she told

husband that she would leave if he abused her again. Wife testified that she was again physically

abused about two years later, during the overnight hours of March 3-4, 2012. Wife testified:

                  [Husband] [k]nocked me out of the bed at night, I was asleep. I hit
                  the wall. He poured wine all over me. . . . I was on the other side
                  of the bed and I tried to run around to get out. And then he started
                  to hit me in, I guess, my face and I put my arms up and that’s when
                  he broke my arm. And then I fell to the ground and he was kicking
                  and kicking me a long time. And then he just gave up and passed
                  out pretty much.




                                                 -2-
A friend took wife to the hospital, where she was diagnosed with an ulnar fracture. Wife

obtained a two-year protective order against husband and was granted exclusive possession of

the marital home.

       Wife soon discovered while at a restaurant with the parties’ children that she could no

longer use the credit card or the debit card that she used for everyday expenses. She learned that

husband had closed certain accounts to which wife had access during the marriage. He brought

$200 to $300 in cash to wife at the friend’s house where wife was staying temporarily. Husband

paid the marital home’s mortgage and utilities for a short time until wife assumed possession of

it.

       Wife sought and began receiving spousal support after filing a petition for maintenance in

the Henrico County Juvenile and Domestic Relations District Court (JDR court) following the

parties’ separation. See Code § 16.1-241(L). Wife also sought child support in the JDR court.1

She later testified during the evidentiary hearing of the parties’ divorce case in circuit court that

she received $2,500 per month of “support” under the JDR court’s order – although she was

unsure how much of that amount was for spousal support and how much was for child support.2

       Wife filed a divorce complaint in the circuit court on April 30, 2012, alleging that

husband had committed the fault ground of cruelty. See Code § 20-91(A)(6). Wife did not seek

an award of spousal support in the divorce complaint. She instead requested in her complaint

that spousal support and matters relating to the custody and support of the children remain in the

JDR court. The circuit court conducted an evidentiary hearing on November 25, 2013 that



       1
           Child support is not a contested issue on appeal to this Court.
       2
         While the circuit court did hear husband’s de novo appeal from the JDR court’s award
of spousal support to wife, neither the transcript of the circuit court’s March 10, 2014 hearing
pertaining to that spousal support litigation nor any order entered memorializing its rulings from
that March 10 hearing has been included in the record on appeal to this Court.
                                                 -3-
addressed the grounds for divorce and equitable distribution.3 Husband appeared pro se at the

evidentiary hearing, although he had been represented by an attorney earlier in the divorce

litigation and later would retain a different attorney (his current counsel) after the evidentiary

hearing.

       On December 11, 2013, the circuit court issued a letter opinion finding that the divorce

“will be entered on the grounds of cruelty.”4 The circuit court also found as fact that “the parties

did not live within their means”; that they “have substantial debt”; that the marital residence “is

worth less than the deed of trust note”; that wife’s mortgage payments “since separation have

reduced the principal debt by $4,000”; and that wife sought to sell the residence whereas

husband wanted to be awarded it (although he planned to sell it immediately after receiving it in

equitable distribution). After itemizing the marital property and marital debt and their respective

values,5 the circuit court found:


       3
         The circuit court raised the issue of spousal support sua sponte near the conclusion of
the November 25, 2013 evidentiary hearing. However, the circuit court then noted that wife’s
claim for spousal support in the JDR court was brought as an independent action under Code
§ 16.1-241(L). See, e.g., Martin v. Bales, 7 Va. App. 141, 145-46, 371 S.E.2d 823, 826 (1988)
(“Orders of the district court requiring support of a spouse remain in full force and effect until
reversed or modified by the court to which an appeal has been perfected, or until the entry of a
decree in a suit for divorce instituted in a circuit court, in which decree provision is made for
spousal support.”).
       4
         Husband has not appealed the circuit court’s finding that husband was guilty of cruelty
against wife.
       5
          By far the most valuable asset considered was husband’s state government “457”
deferred compensation retirement account, which was valued at $55,517. The next most
valuable asset was a 2003 BMW driven by wife, which was valued at $7,000. The value of the
marital residence was $197,000, but the amount owed on its deed of trust note was $198,342.
Credit card debt totaled $36,606. The circuit court apportioned $3,500 of that credit card debt to
wife, while holding husband responsible for the remainder of the credit card debt. The circuit
court also referred in its letter opinion to a diamond ring (which the parties purchased as an
investment) and to some gold (which was a gift from husband’s mother in Turkey). Wife
testified that the ring and the gold were missing when she returned to the marital residence after
permitting husband to get some belongings from there. Prior to trial, husband initially denied
taking the ring and the gold, but he then conceded that he might have inadvertently taken the ring
                                                  -4-
               There were marital assets in existence at separation that are no
               longer available for distribution. Husband kept a Ford truck that
               was worth $4,900. There were three VACU accounts, including
               two for the children, with $3,663 in cash. Husband took that
               money. There was gold worth $9,000. Husband took the gold. He
               also took the diamond ring. There was an Ameritrade account with
               a $4,053 balance. Husband took that money.

               All of the factors in Va. Code § 20-107.3 have been considered.
               There is very little property to divide. Husband made the majority
               of the positive monetary contributions, but these are negated by the
               installment debt of more than $35,000. Husband committed waste
               of marital property after separation. Husband’s misconduct led
               directly to the dissolution of the marriage.

               The assets and debts are distributed as follows. The house will be
               listed for sale. If any profit is obtained it is distributed to Wife.
               Wife will continue to make the payments on the note up until the
               date she moves out. The furnishings and the diamond ring are
               distributed to Wife. The BMW is distributed to Wife. The Wife’s
               IRA is distributed to Wife. The Husband’s IRA ($3,082) will be
               rolled over to an IRA for Wife. The marital portions of Husband’s
               VRS pension and his 457 plan and 401 plan will be divided with
               60% to Wife,6 by an Order acceptable to the VRS plan
               administrator. The Ameritrade account is distributed to Husband.
               Husband will make a lump sum payment to Wife of $12,000 to
               restore to her a part of the marital funds depleted by his waste.
               The Citibank credit card account no. 2677 is distributed to Wife.
               The remaining debts are distributed to Husband.

       Husband, through counsel, filed a motion to reconsider. The circuit court held a hearing

on that motion on February 18, 2014. At that hearing, the circuit court noted husband’s

argument that the court “didn’t give good reasons” when it explained its equitable distribution

rulings in the letter opinion. The circuit court said, “Here’s the thing that I think you should



when wife presented evidence that he had attempted to sell the ring on the internet. Husband
maintained that he did not take the gold, valued at $9,000, even though he acknowledged loaning
a friend $10,000 to assist with that friend’s business venture.
       6
        At a hearing on February 18, 2014, the circuit court stated that the letter opinion
contained a clerical error to the extent it awarded wife more than half of the marital share of
husband’s retirement accounts. See Code § 20-107.3(G). In the final divorce decree, wife was
awarded fifty percent of the marital share of husband’s retirement assets.

                                                -5-
understand is; I gave some reasons. There was more, but sometimes it’s like throwing gas on a

fire when you write these letters.” The circuit court stated that it did not mention in the letter

opinion that husband had loaned $10,000 to his roommate “without a note, without any reason

for doing it.” The circuit court also said later in the hearing that it would “amplify the findings

of fact to say that the evidence at trial showed that the husband’s conduct caused a dissipation in

the marital funds in anticipation of the divorce and there was waste.”

       At the February 18, 2014 hearing, husband’s counsel also asked the circuit court to

re-open the issue of spousal support. He indicated that husband sought to argue that wife’s

spousal support award should be limited to a defined duration. See Code § 20-107.1(C) (“The

[circuit] court, in its discretion, may decree that maintenance and support of a spouse be made in

periodic payments for a defined duration, or in periodic payments for an undefined duration, or

in a lump sum award, or in any combination thereof.”). The parties’ attorneys informed the

circuit court that husband’s de novo appeal from the JDR court’s award of spousal support to

wife had been docketed for a hearing in the circuit court on March 10, 2014. The circuit court

stated, “All right. Well, I’m persuaded that this is a valid objection. I think that should be set

back on the docket for determination of spousal support to be included in the final decree.”

Thus, the circuit court essentially continued the divorce matter pending that hearing on March

10, 2014. However, the record does not include the transcript of the March 10 hearing or any

written orders from the circuit court that arose from that March 10 hearing.7




       7
          The record does contain a June 4, 2014 order to show cause directing husband to “show
cause, if any there be, why he should not be adjudged in contempt for his alleged failure to
comply fully with the order of this Court entered on March 10, 2014.” It appears from wife’s
March 16, 2014 “Motion for Order to Show Cause” and from the circuit court’s June 9, 2014
final decree that the show cause order arose from husband’s failure to satisfy certain terms of the
December 11, 2013 letter opinion, including the payment of wife’s attorneys’ fees and costs.

                                                 -6-
         On May 19, 2014, husband filed a “Motion to Decree Spousal Support” in the circuit

court.

         On June 9, 2014, the circuit court entered its final divorce decree. Among its rulings, the

circuit court judge wrote by hand on the final decree, “Defendant [i.e., husband] moved for an

award of spousal support which motion was overruled as Plaintiff’s pleadings never requested

spousal support. Defendant objects.”

                                            II. ANALYSIS

         Husband initially raised ten assignments of error on appeal to this Court. On brief, husband

has withdrawn four of his assignments of error. Husband’s remaining assignments of error allege:

                1. The Court erred by failing to determine legal title of the
                property of the parties in accordance with Va. Code § 20-107.3(A)
                and as a consequence ordered, among other things, that the
                defendant transfer an individual retirement account, marital
                property which is not jointly owned, to the plaintiff in violation of
                Va. Code § 20-107.3(C).

                4. The Court erred by failing to articulate any reasons under the
                statutory factors to justify awarding the plaintiff approximately
                75% of the marital property (exclusive of deferred compensation
                and retirement benefits).

                5. The evidence failed to support and the Court abused its
                discretion by awarding the plaintiff approximately 75% of the
                marital property (exclusive of deferred compensation and
                retirement benefits) in light of its finding that the defendant made
                the majority of the positive monetary contributions during the
                marriage, by erroneously placing too much emphasis on the
                installment debt of more than $35,000 incurred by the defendant
                when it also apportioned the aforesaid debt to the defendant, and
                by erroneously placing too much emphasis on the defendant’s
                misconduct leading to the dissolution of the marriage which was
                not shown to have an economic impact on the value or the identity
                of the property or directly affect the nonmonetary factors of the
                statute.

                6. The Court erred by failing to articulate any reasons under the
                statutory factors to justify apportioning to the defendant nearly
                90% of the marital debt.

                                                 -7-
                  8. The evidence failed to support and the Court abused its
                  discretion by apportioning to the defendant nearly 90% of the
                  marital debt in light of its finding that the defendant made the
                  majority of the positive monetary contributions during the
                  marriage and by failing to consider the purposes for which the debt
                  was incurred.

                  10. The Court erred in finding that it lacked authority to decree
                  spousal support because the plaintiff did not request it in her
                  pleadings.

                                      A. EQUITABLE DISTRIBUTION

        “In reviewing an equitable distribution award on appeal, we have recognized that the trial

court’s job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the

many considerations and circumstances that are presented in each case.” Klein v. Klein, 11

Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). This Court will not reverse an equitable

distribution award “[u]nless it appears from the record that the [trial court] has abused [its]

discretion,” that the trial court “has not considered or misapplied one of the statutory mandates,” or

“that the evidence fails to support the findings of fact underlying [the] resolution of the conflict.”

Keyser v. Keyser, 7 Va. App. 405, 410, 374 S.E.2d 698, 701 (1988) (quoting Brown v. Brown, 5

Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987)).

                                       Transfer of Husband’s IRA

        In his first assignment of error, husband argues that the circuit court erred when it ordered

the transfer of husband’s IRA. The record establishes that, while this IRA is marital property, it is

titled solely in husband’s name. During oral argument before this Court, wife’s counsel conceded

that the decision to order a “rollover” of husband’s IRA into an IRA owned by wife was reversible

error under Code § 20-107.3(C) because husband’s IRA is not jointly titled property.8 We accept


        8
            Code § 20-107.3(C) states, in pertinent part:

                  Except as provided in subsection G, the court shall have no
                  authority to order the division or transfer of separate property or
                                                   -8-
wife’s concession as appropriate under the circumstances of this case. See Linton v. Linton, 63

Va. App. 495, 500, 759 S.E.2d 14, 16 (2014) (“Code § 20-107.3(C) specifically prohibits the

[circuit] court from dividing or transferring property which is not jointly owned.”).

        Therefore, we must reverse the circuit court’s order to transfer the IRA that is titled solely

in husband’s name. Accordingly, we remand the matter to the circuit court for it to reconsider

the equitable distribution of this marital asset.

                          Consideration of the Code § 20-107.3(E) Factors

        Husband next argues on appeal that the circuit court failed to consider or failed to explain

how it considered the equitable distribution factors set forth in Code § 20-107.3(E).9 Husband

argues that the circuit court’s decision to award a higher percentage of the marital assets to wife10

and to apportion a higher percentage of the marital debt to husband was not supported by the Code

§ 20-107.3(E) factors.



                marital property, or separate or marital debt, which is not jointly
                owned or owed. The court may, based upon the factors listed in
                subsection E, divide or transfer or order the division or transfer, or
                both, of jointly owned marital property, jointly owed marital debt,
                or any part thereof.

See also Broom v. Broom, 15 Va. App. 497, 505, 425 S.E.2d 90, 94 (1992) (holding that an IRA
is not a pension, profit-sharing or deferred compensation within the meaning of Code
§ 20-107.3(G)(1)”). While Code § 20-107.3(D) also gives circuit courts “the power to grant a
monetary award, payable either in a lump sum or over a period of time in fixed amounts, to
either party,” the provisions of Code § 20-107.3(C) apply to the circuit court’s decision to order a
transfer of husband’s IRA.
        9
          This argument pertains to husband’s fourth assignment of error concerning the division of
marital assets and portions of his fifth, sixth, and eighth assignments of error addressing the
allocation of marital debt.
        10
          On brief, husband argues that the circuit court awarded either 75% or 99.84% of the
marital assets to wife. Husband explains on brief that the higher 99.84% figure does not take
into account the marital assets the circuit court found that he wasted and used for non-marital
purposes following the separation of the parties. Husband acknowledges that both calculations
are “exclusive of deferred compensation and retirement benefits.” Husband was awarded
one-half of the marital share of those retirement assets.
                                                 -9-
       Husband acknowledges, as he must, that the circuit court expressly stated in its December

11, 2013 letter opinion that it considered all of the Code § 20-107.3 factors. Relying on this Court’s

decision in Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 578 (1992), husband argues

that there must be “more than a mere recitation in the record or decree that all the statutory

factors have been considered or reviewed.” However, the circuit court in this case did more than

simply state that all of the statutory factors had been considered. It then made findings from the

evidence that related to several statutory factors – both in its December 11, 2013 letter opinion and

from the bench during the February 18, 2014 hearing addressing husband’s motion for

reconsideration.

       Specifically, the circuit court found in the letter opinion, “Husband made the majority of

the positive monetary contributions, but these are negated by the installment debt of more than

$35,000. Husband committed waste of marital property after separation. Husband’s misconduct

led directly to the dissolution of the marriage.” These findings touch on such factors as the

“contributions, monetary and nonmonetary, of each party in the acquisition and care and

maintenance of such marital property of the parties,” Code § 20-107.3(E)(2); the circumstances

and factors which contributed to the dissolution of the marriage, specifically including any

ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95,”

Code § 20-107.3(E)(5); the “debts and liabilities of each spouse, the basis for such debts and

liabilities, and the property which may serve as security for such debts and liabilities,” Code

§ 20-107.3(E)(7); and the “use or expenditure of marital property by either of the parties for a

nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation

of divorce or separation or after the last separation of the parties,” Code § 20-107.3(E)(10).

       In its February 18, 2014 bench ruling, the circuit court again emphasized husband’s waste

of marital assets. The circuit court also noted that husband had loaned a friend $10,000 – even

                                                - 10 -
though the parties had substantial debt – which constituted a loan of an especially suspicious

nature, given the circuit court’s findings that husband took from wife a diamond ring valued at

$1,795 and also took gold valued at $9,000. See Code § 20-107.3(E)(11) (stating that the circuit

court may consider “[s]uch other factors as the court deems necessary or appropriate to consider

in order to arrive at a fair and equitable monetary award”).

       Case law is clear that, although the trial court must consider all factors set out in Code

§ 20-107.3(E), it “need not quantify or elaborate exactly what weight was given to each of the

factors” as long as its findings are “based upon credible evidence.” Taylor v. Taylor, 5 Va. App.

436, 444, 364 S.E.2d 244, 249 (1988); see also, e.g., Judd v. Judd, 53 Va. App. 578, 592-93, 673

S.E.2d 913, 919 (2009). “Virginia law does not establish a presumption of equal distribution of

marital assets. It is within the discretion of the court to make an equal division or to make a

substantially disparate division of assets as the factors outlined in Code § 20-107.3(E) require.”

Matthews v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998). “A circuit court,

therefore, need not start off at the 50-yard line and then look to the discretionary factors of Code

§ 20-107.3(E) to move the ball marker up or down the sidelines.” Robbins v. Robbins, 48

Va. App. 466, 480, 632 S.E.2d 615, 622 (2006). Viewing the record in the light most favorable

to wife, as we must since she was the prevailing party below, the circuit court’s consideration of

the Code § 20-107.3(E) factors and the evidence in this case satisfied these principles of

equitable distribution.

       Husband contends that the circuit court assigned excessive or arbitrary weight to

husband’s misconduct – his cruelty toward wife – since husband claims that his misconduct did

not affect the identity or value of the marital property. However, this Court has held:

               [A]lthough circumstances “that lead to the dissolution of the
               marriage but have no effect upon marital property [or] its value
               . . . need not be considered” under Code § 20-107.3(E)(5), Aster v.
               Gross, 7 Va. App. 1, 5-6, 371 S.E. 2d 833, 836 (1986) (emphasis
                                               - 11 -
               added), a trial court does not automatically abuse its discretion if it
               takes those factors into account. As we explained in O’Loughlin v.
               O’Loughlin, 20 Va. App. 522, 458 S.E. 2d 323 (1995), factors and
               circumstances leading to the dissolution of the marriage may be
               considered during equitable distribution – even if those factors
               have no financial impact on the marriage – as long as those factors
               detracted from the overall “marital partnership.” Id. at 528, 458
               S.E. 2d at 326 (holding that long-term infidelity and abusive
               behavior could be considered, in the court’s discretion, “under any
               of the factors of Code § 20-107.3”); see also Budnick v. Budnick,
               42 Va. App. 823, 595 S.E. 2d 50 (2004) (trial court did not err in
               considering criminal business activities under Code
               § 20-107.3(E)(1)); Watts v. Watts, 40 Va. App. 685, 581 S.E.2d
               224 (2003) (trial court did not err in considering husband’s
               adultery under Code § 20-107.3(E)(1) and former
               § 20-107.3(E)(10)).

Ranney v. Ranney, 45 Va. App. 17, 46-47, 608 S.E.2d 485, 499 (2005). Here, the circuit court

clearly found that husband’s cruelty to wife caused the dissolution of the marriage and obviously

detracted from the overall marital partnership. Id. Thus, the circuit court here could, in a valid

exercise of its discretion, consider husband’s cruelty and assign it appropriate weight among the

totality of the circumstances.

       Therefore, we conclude that the circuit court adequately explained how it considered and

applied the equitable distribution factors set forth in Code § 20-107.3(E), and we affirm the

circuit court’s decision in doing so.

                            Apportionment of Marital Credit Card Debt

       The record indicates that there was $36,606 in marital credit card debt. Husband was

apportioned $33,106 of this debt, whereas wife was apportioned $3,500. In portions of his sixth

and eighth assignments of error, husband argues that the circuit court held husband responsible

for a greater portion of the marital credit card debt than wife had even claimed in the circuit

court. Husband notes that, prior to the November 25, 2013 evidentiary hearing, wife submitted a

“Proposed Scheme of Equitable Distribution” in which wife indicated that husband should

receive an approximately $9,900 credit toward apportionment of credit card debt.
                                               - 12 -
        In addition, husband notes that wife’s counsel made the following statement during

closing argument at the November 25, 2013 evidentiary hearing:

                The debts [our] distribution laid out very clearly, Your Honor. I
                think it’s very fair we gave him credit for the debt that he did pay
                down. And acknowledge that according to our distribution he
                should receive a credit of approximately $9,000 towards her total
                award.

(Emphasis added). However, the circuit court declined to give husband this approximately

$9,000 credit, as its letter opinion and final decree show.

        During oral argument before this Court, wife’s counsel acknowledged that, by not giving

this credit to husband, the circuit court entered a larger award for wife than even wife had sought

at the close of the evidentiary hearing. Nevertheless, wife contended that the generalized request

for relief in her divorce complaint enabled the circuit court to deny the approximately $9,000

credit to husband. In the divorce complaint, wife requested “all rights and remedies afforded by

Section 20-107.3 of the Virginia Code” and “such other and further relief as the nature of this

case may require.”11 However, wife’s closing argument during the November 25, 2013

evidentiary hearing placed a specific limitation on the generalized relief she had sought – at least

with respect to the apportionment of marital debt. See Johnson v. Buzzard Island Shooting Club,

Inc., 232 Va. 32, 36, 348 S.E.2d 220, 222 (1986) (“The only limitation placed on a grant of

general relief is that it not be inconsistent with the . . . relief specifically sought.”).

        The Supreme Court’s decision in Carter v. Lambert, 246 Va. 309, 435 S.E.2d 403 (1993),

is instructive. In Carter, the plaintiff initially sued the defendants for $58,500. However, at trial,


        11
           On appeal, wife also argues that her “Proposed Scheme of Equitable Distribution”
(proposed scheme) was not a pleading that should be considered binding on her. She contends
that the proposed scheme was only offered as a tool to assist the circuit court’s consideration of
equitable distribution. We do not hold in this case in any way that wife was bound by her
proposed scheme of equitable distribution – which was submitted before the November 25, 2013
evidentiary hearing and, therefore, before any evidence was taken by the circuit court.

                                                  - 13 -
the plaintiff requested that the trial court reduce the amount the defendants were being sued for

to $45,000. Id. at 313, 435 S.E.2d at 405. The jury returned a verdict finding the defendants

liable and awarding the plaintiff $58,500 – the amount initially requested in the plaintiff’s

pleadings. Id. While the jury’s finding of the defendants’ liability was upheld on appeal, the

Supreme Court reversed the jury’s decision to award the plaintiff $58,500. The Supreme Court

explained, “Because the jury’s verdict was greater than the amount sued for, we will enter

judgment for Carter in the amount of the relief he requested.” Id. at 315, 435 S.E.2d at 406.

       Similarly, by asserting during closing argument of the November 25, 2013 evidentiary

hearing that it would be fair to credit husband an approximately $9,000 credit toward his share of

the marital debt and that husband should be awarded this credit, wife placed a specific limitation

on the generalized relief that she had sought in her divorce complaint. See Johnson, 232 Va. at

36, 348 S.E.2d at 222; see also Brown v. Brown, 5 Va. App. 238, 245, 361 S.E.2d 364, 368

(1987) (holding that the wife’s counsel’s statement to the trial court that the wife was “not

seeking spousal support” and the wife’s reiteration of that position from the witness stand

constituted a waiver of the wife’s right to any spousal support).12 Therefore, the circuit court

erred when it declined to award husband this credit that had essentially been agreed upon by the

parties. Accordingly, we reverse the circuit court’s apportionment of the marital credit card debt

on this basis and remand the matter to the circuit court for reconsideration of the marital debt.




       12
          This Court’s decision in Rosedale v. Rosedale, No. 2414-07-4, 2008 Va. App. LEXIS
341 (Va. Ct. App. July 22, 2008), although it is unpublished, is also instructive. In Rosedale, the
wife made a generalized request for equitable distribution in her divorce pleadings. She then
sought fifty percent of a certain marital asset at the evidentiary hearing, yet the circuit court
awarded her a greater percentage of that asset. On appeal, this Court held that the wife
“effectively limited the scope of her request for relief and, thus, waived her right to any more”
than half of that marital asset. Id. at *11.

                                               - 14 -
                                      B. SPOUSAL SUPPORT

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

trial court.” Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). A circuit

court’s decision regarding spousal support “will not be disturbed on appeal unless there has been

a clear abuse of discretion.” Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644

(1992). A court “‘by definition abuses its discretion when it makes an error of law. . . . The

abuse-of-discretion standard includes review to determine that the discretion was not guided by

erroneous legal conclusions.’” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445

(2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

       In his tenth assignment of error, husband argues that the circuit court committed an error

of law in the June 9, 2014 final decree when it overruled husband’s motion to address spousal

support because “Plaintiff’s [i.e, wife’s] pleadings never requested spousal support.” On brief,

the parties both rely on language from Code § 20-79(b), which states:

               In any suit for divorce, the court in which the suit is instituted or
               pending, when either party to the proceedings so requests, shall
               provide in its decree for the maintenance, support, care or custody
               of the child or children in accordance with Chapter 6.1 (§ 20-124.1
               et seq.), support and maintenance for the spouse, if the same be
               sought, and counsel fees and other costs, if in the judgment of the
               court any or all of the foregoing should be so decreed.

Husband focuses on the words “either party” – i.e., either party in the suit for divorce may

request for the decree to include a provision addressing, inter alia, spousal support. Wife

focuses on the words “the spouse” – which, according to wife, indicates that only a request from

the spouse seeking spousal support triggers the circuit court’s duty to address spousal support in

the final decree.

       The Supreme Court’s decision in Werner v. Commonwealth, 212 Va. 623, 186 S.E.2d 76

(1972), controls our analysis of this assignment of error. In Werner, the Supreme Court held:

                                               - 15 -
                 [A] support order of a juvenile and domestic relations court
                 continues in full force and effect notwithstanding the entry by a
                 court of record of a divorce decree that is silent as to support.
                 Either Werner or his wife could have asked the Circuit Court to
                 make specific provision in the final divorce decree for allowance
                 or denial of alimony. If such a provision had been included in the
                 decree, the jurisdiction of the Juvenile and Domestic Relations
                 Court would have ceased under § 20-79(a). But neither party
                 sought to have such provision made.

Id. at 625, 186 S.E.2d at 78 (emphasis added). Therefore, the Supreme Court held in Werner that

either spouse could have petitioned the circuit court for a provision in the final decree awarding

or denying spousal support (or, as it was called at that time, alimony). Id.

       Furthermore, we observe that the Supreme Court in Werner interpreted a version of Code

§ 20-79(b) that was very similar to the current version of that statute.13 Pertinent to this appeal,

the legislature since the decision in Werner has replaced the word “alimony” in Code § 20-79(b)

with the phrase “support and maintenance for the spouse.”14 Following that change to Code

§ 20-79(b), however, this Court has already explained that the Supreme Court’s holding in

Werner also applies in the context of spousal support:

                 As the Court instructed in Werner, either party, by proper pleading,
                 “could have asked the Circuit Court to make specific provision in
                 the final divorce decree for allowance or denial of [spousal
                 support]. If such a provision had been included in the decree, the
                 jurisdiction of the [district court] would have ceased under
                 § 20-79(a).” Werner, 212 Va. at 625, 186 S.E.2d at 78; see also
                 Code § 16.1-244(A). However, because “neither party sought to

       13
            At the time of the decision in Werner, Code § 20-79(b) provided:

                 In any suit for divorce the court in which same is instituted or
                 pending, when either party to the proceedings so requests, shall
                 provide in its decree for the maintenance, support, care or custody
                 of the child or children, alimony if the same be sought, and counsel
                 fees and other costs, if in the judgment of the court any or all of the
                 foregoing should be so decreed.
       14
          Alimony, by definition, is an award directed to the wife. See Eaton v. Davis, 176 Va.
330, 338, 10 S.E.2d 893, 897 (1940). Either spouse can request and receive spousal support.

                                                 - 16 -
                have such provision made,” the preexisting support order
                “continued in full force and effect.” Werner, 212 Va. at 625, 186
                S.E.2d at 78.

Reid v. Reid, 24 Va. App. 146, 151, 480 S.E.2d 771, 773 (1997) (alterations in Reid).

        Therefore, it is clear that Werner applies to the analysis here. Under the Supreme Court’s

decision in Werner (and this Court’s decision in Reid), either party can request the circuit court

for a provision in a final divorce decree awarding or denying spousal support. A party seeking

spousal support, of course, would not seek an order denying spousal support. Thus, Werner

permits one party to request a provision in the final decree denying an award of spousal support

to the other party (as in Werner) or limiting the other party’s spousal support award to a defined

duration (as here).

        Consequently, we agree with husband that it was error for the circuit court to base its

decision on spousal support solely on the fact that wife did not request spousal support in her

circuit court divorce pleadings. We remand the matter to the circuit court for reconsideration of

this issue.15

                                         III. CONCLUSION

        For the foregoing reasons, we affirm the circuit court’s decision on the assessment of the

Code § 20-107.3(E) equitable distribution factors. We reverse the circuit court’s decision to

transfer title of husband’s IRA to wife, the circuit court’s apportionment of marital credit card

debt to husband without giving husband a credit for the approximately $9,000 that wife’s counsel


        15
           Moreover, we observe that husband raised the issue of spousal support in a pleading in
the divorce case – when he filed his “Motion to Decree Spousal Support” on May 19, 2014.
While wife argues on appeal that husband’s motion came too late in the proceedings, the circuit
court stated at the February 18, 2014 hearing that husband had raised a “valid objection”
concerning spousal support and ruled that the matter “should be set back on the docket for
determination of spousal support to be included in the final decree.” The record on appeal
indicates that the circuit court ultimately declined to include a spousal support provision in the
June 9, 2014 final decree because wife never requested spousal support in the divorce case – not
because husband requested addressing the issue of spousal support too late in the proceedings.
                                                 - 17 -
stated was appropriate during closing arguments at the November 25, 2013 evidentiary hearing,

and the circuit court’s ruling that it would not consider the issue of spousal support despite

husband’s request that the circuit court do so. We remand the matter for further proceedings

consistent with this opinion.



                                                                                   Affirmed in part,
                                                                                    reversed in part
                                                                                     and remanded.




                                               - 18 -
