Pamela S. Cleary v. Thomas C. ClearyPamela S. Cleary v. Thomas C. Cleary
Beth A. Bittel (Joshua R. Anthony; Law Offices of Beth A. Bittel, P.C., Fairfax, on brief), for appellee.
Present: BEALES, DECKER, JJ., and CLEMENTS, S.J.
DECKER, Judge.
Pamela S. Cleary (the wife) appeals a final order of the circuit court awarding spousal support. On appeal, she argues that the court erred by awarding her spousal support for a defined duration without written findings identifying the basis for the specific duration of the award. The wife also argues that the circuit court abused its discretion in limiting her spousal support award to five years and in not making the award for an undefined duration. The husband counters that the court provided sufficient written findings and is not required to provide a justification for the specific duration. He also suggests that the circuit court did not abuse its discretion in limiting support to a defined duration. Both parties request an award of appellate attorneys’ fees and costs.
We hold that the circuit court erred by failing to make written findings sufficient to comply with
I. BACKGROUND
The parties married on August 27, 1994, and had three children together. During the marriage, the husband worked as a financial advisor. The wife worked as a pharmaceutical sales representative for part of the marriage, and then she independently contracted for a weight-loss business.
The parties separated after approximately seventeen years of marriage, and the wife filed for divorce. The circuit court awarded the wife a divorce on the grounds of adultery. The court made awards of equitable distribution, spousal support, child support, and attorneys’ fees. The circuit court specifically awarded the wife spousal support of $5,000 per month for a period of sixty months.1
In determining the spousal support award, the circuit court made detailed factual findings. The court specifically considered the parties’ needs, financial resources, ability to work, and earning capacities. The court recognized that the wife had “the ability to work.” It noted that “[t]here was an expert who testified that she could make between [$]50[,000] and [$]60,000 a year as a general salesperson.” The court also considered the high standard of living established during the marriage, the seventeen-year duration of the marriage, the parties’ physical and mental conditions, each party‘s contributions to the well-being of the family, the property interests of the parties, and the court‘s own equitable distribution rulings. The court additionally noted that the wife helped the husband when he obtained his brokerage license as well as when he first started his business.
The wife made a motion for the court to reconsider its decision regarding spousal support, arguing in part that the court did not make any written findings and provided “no explanation as to why spousal support was to end at 5 years.” The court summarily denied the wife‘s motion without any further analysis or findings.
The wife appeals the defined duration and length of the spousal support award.
II. ANALYSIS
The issues before this Court are whether the circuit court failed to make written findings justifying the basis for the nature, amount, and duration of the award; and abused its discretion in limiting the wife‘s
A. Sufficiency of the Written Findings
The wife argues that the circuit court did not identify the basis for the nature and duration of the award and thus failed to comply with
The resolution of this appeal requires this Court to interpret the “written findings” provisions of
[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature‘s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted); see also Wright v. Wright, 61 Va.App. 432, 452, 737 S.E.2d 519, 529 (2013) (interpreting
In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court‘s order. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.
(Emphasis added).
This Court has held that “to comply with
In drafting the statute, the legislature clearly provided both that (1) in all contested spousal support cases, the circuit court shall provide written findings specifying factors under subsection (E) relevant to the award, and (2) in making an award for a defined duration, “such findings shall identify the basis for the nature, amount, and duration of the award.”4
The statute‘s requirement that the written findings include the basis for an award of defined duration serves a practical purpose in the event of future litigation. If a party petitions for a spousal support award modification based on a change of circumstances or petitions for an additional award of spousal support at the end of a defined duration, the circuit court‘s determination will be aided by the previous identification of the basis for the nature, amount, and duration of the original reward.5 Cf. Herring v. Herring, 33 Va.App. 281, 288-89, 532 S.E.2d 923, 927 (2000) (noting that an inadequate explanation of a child support award would “handicap a court overseeing future modification proceedings because that court would have an insufficient understanding of the manner in which the existing award was set and the extent to which a change in circumstances might warrant a change in the amount of support“); Foster-Gross v. Puente, 656 A.2d 733, 737 (D.C. 1995) (noting that one purpose of the rule requiring “written findings of fact and conclusions in cases involving custody and support... is ‘to prevent the relitigation of facts and issues in the future‘” (quoting Tennyson v. Tennyson, 381 A.2d 264, 267 (D.C.1977))).
In sum,
The wife argues that regardless of whether the circuit court made findings sufficient to comply with
In short, “where a trial court is required to make written findings supporting its decision, its failure to do so constitutes reversible error.” Robinson v. Robinson, 50 Va.App. 189, 194, 648 S.E.2d 314, 316 (2007). When this occurs, we “remand this matter to the trial court with instructions to provide an explanation in compliance with the statute.” Kane [v. Szymczak], 41 Va.App. [365,] 376, 585 S.E.2d [349,] 355 [(2003)]. This remedy precisely reflects the nature of the trial court‘s error. We do not address, much less hold, that the support award should not have been made at all or that the amount of the award was too high or too low.... The error we reverse is not the fact or the amount of the award, but the absence of a sufficient explanation accompanying it. Pilati, 59 Va.App. at 184-85, 717 S.E.2d at 811. This logic applies equally to the situation here involving the defined duration of the spousal support award.
Based upon the failure to provide written findings identifying the basis for the duration of the award pursuant to
B. Attorneys’ Fees and Costs
Both parties ask for an award of attorneys’ fees and costs associated 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). The wife‘s appeal was not frivolous and addressed “appropriate and substantial issues.” See Estate of Hackler v. Hackler, 44 Va.App. 51, 75, 602 S.E.2d 426, 438 (2004). Consequently, we do not award the husband fees or costs. Further, the errors requiring appeal were not the fault of the husband, and the record contains no indication that he “generated unnecessary delay or expense in pursuit of [his] interest.” Id. Thus, we do not award the wife fees or costs.
We hold that the trial court erred by failing to make written findings identifying the basis for the nature, amount, and duration of the defined duration award, as required by
Reversed and remanded.