                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Willis


TIMOTHY W. CLARKSON
                                                                  MEMORANDUM OPINION*
v.      Record No. 0812-04-2                                          PER CURIAM
                                                                     AUGUST 31, 2004
BARBARA A. CLARKSON


                   FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                               William H. Ledbetter, Jr., Judge

                  (Thomas Woehrle; Woehrle & Franklin, on brief), for appellant.

                  (Lawrence D. Diehl, on brief), for appellee.


        Timothy W. Clarkson, husband, appeals a decision of the trial court awarding Barbara A.

Clarkson, wife, spousal support. On appeal, he contends the trial court erred by failing to consider

statutory factors in making the spousal support award and by overruling his objections to the award.

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

Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.

                                              Background

        The parties were married in 1970 and separated in December 2001. In July 2002, wife filed

a bill of complaint requesting a divorce and spousal support. There was no ore tenus hearing in the

case. The parties filed memoranda addressing the contested issues, including spousal support, and

the trial court based its decision on its review of the depositions of the parties and their witnesses

and the exhibits in the case.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        By opinion letter dated November 26, 2003, the trial court ruled that husband was to pay

wife $2,000 per month in spousal support. The opinion letter specifically stated that the trial court

considered “all the factors listed in . . . Code § 20-107.1” in making its decision. The court also

found that, for the past six years wife had earned “about $14,000 a year” as a self-employed

housecleaner. She is also trying to establish a business in landscaping. In addition, the trial court

found that husband’s annual income is $102,000 as a regional MRI specialist.

        Husband filed a motion for reconsideration regarding the spousal support award. On

January 21, 2004, the trial court issued a second opinion letter denying husband’s motion. The

final divorce decree was entered on March 3, 2004.

                                               Analysis

        “A spousal support award is subject to the trial court’s discretion and will not be

disturbed on appeal unless plainly wrong or without evidence to support it.” Howell v. Howell,

31 Va. App. 332, 351, 523 S.E.2d 514, 524 (2000).

        Husband argues the trial court failed to consider the factors of Code § 20-107.1(E) in

making the spousal support award. However, in the November 26, 2003 opinion letter, the trial

court specifically stated that it considered all of the factors of that code section. Furthermore,

                [t]he requirement that the trial court consider all of the statutory
                factors necessarily implies substantive consideration of the
                evidence presented as it relates to all of these factors. This does
                not mean that the trial court is required to quantify or elaborate
                exactly what weight or consideration it has given to each of the
                statutory factors. It does mean, however, that the court’s findings
                must have some foundation based on the evidence presented.
                Therefore, we hold that in a determination involving spousal
                support, if the court’s findings do not have evidentiary support in
                the record, then the court has abused its discretion.

Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).

        The evidence showed that wife started a housecleaning business seven years ago and

averaged an annual income of $14,000 for the past six years. Wife offered profit and loss
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statements and tax returns as exhibits in support of her deposition testimony. Furthermore, wife

introduced an income and expense statement showing that her income was about $1,050 per

month, yet her expenses were $3,114 per month. After the divorce, wife will also have to obtain

health and dental insurance coverage that was provided by husband during the marriage.

       Husband has been employed by the same company for seventeen years. He testified that

his base salary is $70,000 or $72,000 per year and he makes additional money by working

overtime. Husband’s W-2 forms were admitted into evidence showing that in 2001, husband

earned about $94,000 and in 2002 he earned about $101,000. As of March 23, 2003, husband

had earned $29,000. Husband’s expense statement showed he had monthly expenses of about

$2,900 and had a gross income of $10,000 per month. Thus, husband has the ability to pay the

spousal support award.

       In addition, wife testified that for many years of the more than thirty-year marriage and

with husband’s concurrence, she was not employed outside of the home, assuming the role of

homemaker and raising their child. Husband’s income increased greatly over the time of the

marriage, and wife testified that for the last five years of the marriage, the parties’ standard of

living was “very good.” However, since the separation, wife has been living “from one day to

the next” and she is “in the red.” “When a party to a divorce suit establishes an entitlement to

support, the law imposes upon the party liable for that support a duty to maintain the dependent

party according to the parties’ marital lifestyle.” McCombs v. McCombs, 26 Va. App. 432, 436,

494 S.E.2d 906, 908 (1998). Accordingly, ample evidence supported the amount of the trial

court’s award of spousal support.

       Husband also contends the trial court erred by making a permanent spousal support

award, particularly in light of his plan to retire in eight years. However, a trial court can only

make an award based on the circumstances in existence at the time of the award. “The statutory

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scheme [for spousal support awards] anticipates that awards will be made in light of

contemporary circumstances. When justified, support awards may be redetermined in light of

new circumstances.” Donnell v. Donnell, 20 Va. App. 37, 41, 455 S.E.2d 256, 258 (1995).

       Husband contends wife is voluntarily underemployed, yet he asserts he is not making an

argument that the trial court should have imputed income to wife. “In setting or modifying

spousal support or child support, a court may impute income to a party voluntarily unemployed

or underemployed.” Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 783 (1999).

“[T]he party moving the court to impute income has the burden of proving that the other party is

voluntarily foregoing more gainful employment.” Id. at 102, 515 S.E.2d at 784. Husband

presented no evidence indicating wife was voluntarily underemployed. Accordingly, the trial

court did not err by not finding wife was underemployed or by not imputing income to wife.

       Husband also asserts the trial court erred by not considering wife’s fault contributing to

the dissolution of the marriage. Code § 20-107.1(B) provides: “[N]o permanent maintenance

and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of

divorce under the provisions of [Code] § 20-91[(1)].” Code § 20-91(1) addresses adultery,

sodomy and buggery committed outside the marriage as grounds for divorce. In his cross-bill,

husband requested a divorce on the grounds of constructive desertion and cruelty, not any of the

fault grounds listed in Code § 20-91(1). Furthermore, the trial court granted the divorce on the

ground that the parties had lived separate and apart for one year without cohabitation and

interruption. Accordingly, husband’s argument is without merit.

       Wife requests an award of attorney’s fees incurred by her in this appeal, asserting that

husband’s appeal was without merit. Upon consideration of the entire record in this case, we

hold that wife is entitled to a reasonable amount of attorney’s fees. See O’Loughlin v.




                                               -4-
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Accordingly, we remand the

matter to the trial court for it to determine the proper amount of the award.

       For these reasons, the decision of the trial court is affirmed.

                                                                         Affirmed and remanded.




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