COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

CHARLES WILLIAM HURT 

v. Record No. 0111-96-2 

 

CATHERINE C. HURT MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

CATHERINE C. HURT JANUARY 21, 1997 

v. Record No. 0130-96-2 

CHARLES WILLIAM HURT 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Peter L. McCloud; Ronald R. Tweel (William C. 

Scott IV; Boyle & Bain; Michie, Hamlett, 

Lowry, Rasmussen & Tweel, on briefs), for 

Charles William Hurt. 

 Robert C. Rice (Carrell & Rice, on brief), 

for Catherine C. Hurt. 

 Charles William Hurt (husband) and Catherine C. Hurt (wife) 

separately appeal the trial court's award of spousal support, 

each contending that the trial court made numerous errors in the 

trial requiring a reversal of the court's order. We address 

seriatim each issue raised in both appeals. We affirm in part 

and reverse in part and remand for a modification of the spousal 

support order. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 I. Background

 Charles W. Hurt and Catherine C. Hurt were married on May 

20, 1984, and separated on March 31, 1986, a marriage of 

twenty-two (22) months. Husband filed for a divorce upon a 

charge of desertion on April 11, 1986. Wife filed a cross-bill 

alleging cruelty and desertion on husband's part. The parties 

were divorced by a final divorce decree entered June 17, 1987, on 

the ground of one year separation. 

 After several years of hearings, the trial court awarded 

wife the sum of three hundred and fifty thousand dollars 

($350,000) as equitable distribution to be paid in seven annual 

installments of fifty thousand dollars ($50,000) without 

interest. By letter opinion dated February 21, 1991, the trial 

court found that wife was barred from receiving spousal support 

based upon her desertion of husband, even though the divorce had 

already been granted based upon a one year separation. Wife 

appealed the equitable distribution award, the finding that she 

deserted husband, and the bar of spousal support. 

 In Hurt v. Hurt, 16 Va. App. 792, 433 S.E.2d 493 (1993), 

this Court upheld the equitable distribution award. We further 

held that spousal support was barred only "if there exists in 

such spouse's favor a ground of divorce under the provisions of 

Code § 20-91(1), (3) or (6)." Id. at 801, 433 S.E.2d at 499. 

See Code 20-107.1 (Supp. 1986). This decision found that husband 

failed to corroborate his allegation that wife deserted the 
 3 

marriage, that husband's testimony alone was "insufficient as a 

matter of law to establish a ground of divorce [and] . . . it 

cannot operate to bar permanent spousal support to wife." Hurt, 

16 Va. App. at 801, 433 S.E.2d at 499. The trial court's 

decision on spousal support was reversed and remanded. 

 On August 3, 1995, the issue of spousal support was heard in 

the trial court. In a letter opinion dated August 16, 1995, 

embodied in an order entered on December 12, 1995, the trial 

court awarded wife spousal support in the amount of one thousand 

five hundred dollars ($1,500) per month retroactive to May 1, 

1991. The retroactive award created an immediate arrearage of 

seventy-eight thousand dollars ($78,000) for the period from May 

1, 1991 to August 1, 1995. Husband was ordered to pay one-half 

of the arrearage by December 1, 1995, and the balance by March 1, 

1996, carrying interest at nine percent annually. 

 Both parties separately appealed the decision of the trial 

court, each asserting numerous errors of the trial court. We 

shall discuss each issue in the order presented. 

II. Charles W. Hurt v. Catherine C. Hurt

 At the beginning of the hearings, husband moved the trial 

judge to recuse himself from conducting the hearings because the 

judge had formerly represented wife in a prior domestic relations 

matter. Husband contends that this created a conflict of 

interest demanding that the judge recuse himself from hearing the 

matter. 
 4 

 The record proves that in 1978, fourteen years prior to the 

1992 hearing, the trial judge represented the wife (then 

Catherine Kirtley) in a child support matter in a juvenile and 

domestic relations court. After their divorce was granted in 

1978, Mr. Kirtley filed a petition in a juvenile and domestic 

relations court to decrease the amount of child support. Mrs. 

Kirtley, represented by the trial judge, filed a petition asking 

for an increase. The trial judge indicated that he did not 

recall anything that wife told him in confidence and that he had 

"absolutely no knowledge of her current circumstances." He 

stated that "I don't know of anything that's pertinent in what I 

would hear today that relates back to 1978 that tells me anything 

about her current circumstances and need for support, or her 

current medical condition." He refused to disqualify himself. 

 "It is within the trial judge's discretion to determine 

whether he harbors bias or prejudice which will impair his 

ability to give the defendant a fair trial." Terrell v. 

Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991). 

Exactly when a judge's impartiality might reasonably be called 

into question is a determination to be made by that judge in the 

exercise of his or her sound discretion. Justus v. Commonwealth, 

222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), cert. denied, 455 

U.S. 983 (1982). See also Stamper v. Commonwealth, 228 Va. 707, 

714, 324 S.E.2d 682, 686-87 (1985). 

 There is no indication in the record that the trial judge 
 5 

abused his discretion, and we find no merit to this contention. 

 The husband alleges that the trial judge determined the 

issue of spousal support under Code § 20-107.1 in effect at the 

date of hearing instead of the statute in effect when the case 

was filed in 1986. In its letter opinion, the trial judge did 

state that the trial court was governed by Code § 20-107.1 in 

effect in 1991. Both parties agree that this was error and that 

statutes are prospective in the absence of an express provision 

to the contrary, and that the case is governed by the law in 

existence in 1986 when the action was commenced. 

 However, the provisions of Code § 20-107.1 governing the 

trial court's determination of the amount of spousal support are 

the same in both versions of the statute. It is of no 

consequence that the trial judge referred to the 1991 statute in 

his letter opinion. The error is harmless and furthermore, it 

can be easily corrected on remand. 

 Husband contends that the trial court erred when it failed 

to consider all of the factors and circumstances enumerated in 

Code § 20-107.1 which contributed to the dissolution of the 

marriage, including wife's desertion. 

 In his letter opinion dated August 16, 1995, the trial judge 

discussed the factors to be considered in determining the amount 

of spousal support. He stated: 

 The other factor to be considered is the 

uncorroborated finding of desertion by this 

Court previously. The legal effect of this 

factor has been discussed based on the 

guidance of Barnes v. Barnes, [16 Va. App. 
 6 

98, 428 S.E.2d 294 (1993),] supra. 

 It is clear from this statement that the trial court did 

consider fault under Code § 20-107.1(9) in determining the amount 

of the spousal support. The only "uncorroborated finding of 

desertion" was the alleged desertion by wife, not any fault on 

the part of husband. Thus, the trial court may have improperly 

considered evidence of the wife's desertion, but did not commit 

any error with respect to the husband. The trial court did not 

commit reversible error with respect to the husband's case. We 

will further discuss this issue in wife's case against husband. 

 Husband claims that the trial court erred when it considered 

only wife's income and expense statement without giving effect to 

her testimony, which contradicted the income and expense shown 

thereon. Wife asserts that her monthly expense statement 

establishes her expenses to be $9,883 monthly. Since the court 

only awarded $1,500 monthly, it made a substantial reduction in 

the amounts shown on the monthly expense statement, conclusively 

showing that the trial judge did not rely only upon the expense 

statement. She further alleges that it is abundantly clear that 

the award would have been substantially higher if the trial court 

had only considered the calculations on the monthly expense 

statement. 

 The letter opinion of the trial judge dated August 16, 1995, 

shows that in determining spousal support, he considered all of 

the factors set forth in Code § 20-107.1, including earnings, 
 7 

earning capacity and financial resources, education and training 

of the parties, standard of living, duration of the marriage, age 

and health, contributions to the marriage (monetary and 

non-monetary), and equitable distribution considerations. We 

find no merit in this issue raised by husband. 

 Husband asserts that the evidence does not support the trial 

court's finding that he made two to four million dollars in the 

last two years, and the trial court was not justified in relying 

upon the 1983 prenuptial agreement in determining his present 

financial ability. 

 In its letter opinion dated August 16, 1995, the trial court 

said: 

 He has been involved in the real estate 

business since 1955 and gave his full 

attention to real estate development 

beginning in approximately 1960. Since that 

time he has acquired property appraised at 

$40,325,985.00. . . . Dr. Hurt testified 

that in the last two years he sold from two 

to four million dollars worth of property and 

that he had either borrowed or used the sale 

proceeds to pay for his living expenses. 

This Court has considered his testimony as to 

his financial holding, his obligations, and 

his assessment of the value of his property 

at present. 

 On January 1, 1994, husband prepared a financial statement 

for banking purposes showing total assets of $40,202,809, 

liabilities of $18,240,324, giving a net worth of $21,962,485. 

The statement indicated that he had "cash on hand" of $734,655 

and "accounts receivable" in the amount of $652,932. The record 

also contains a January 1, 1995 financial statement. It is 
 8 

essentially the same as the 1994 statement, except that the asset 

values have been reduced based upon seventy percent of appraised 

value due to the results of an auction in Pennsylvania he 

attended. 

 Husband testified that "I sell two to four million dollars 

worth of property a year." 

 We find credible evidence in the record to support the 

finding of the trial court. 

 Husband claims that the trial court erred in relying upon 

the 1983 prenuptial agreement to determine his present financial 

ability to pay spousal support. The prenuptial agreement was 

introduced in evidence in 1986 by the husband himself as 

Complainant's Exhibit 4. Appellate courts will not permit a 

party to use as a grounds for reversal an alleged trial court 

error which the party invited. See Commonwealth v. Kilgore, 15 

Va. App. 684, 692, 426 S.E.2d 837, 841 (1993). In addition, any 

fact, however remote, that tends to establish the probability or 

improbability of a fact in issue is admissible. Charles E. 

Friend, The Law of Evidence in Virginia, 4th ed., § 11-2, at 452 

(1993). The fact that husband admittedly had a gross income of 

approximately two million dollars in 1983 is part of his history 

of earnings and earning capacity and, therefore, is relevant in 

some degree to prove current earning capacity. The record does 

not support the husband's allegation that the trial judge 

considered that he made two million dollars a year in fixing 
 9 

spousal support. The award of $1,500 a month negates such a 

contention. It is significant that the statement attributable to 

the trial judge is placed under the section headed "Discussion of 

Law" and not under the section where he considered the factors to 

be considered under Code § 20-107.1. We find no merit in this 

claim. 

 Husband contends that the trial judge erred in failing to 

accord meaningful, substantive consideration to the short 

duration of the marriage in determining wife's entitlement to 

spousal support. This contention is not supported by the record. 

 In his letter opinion, the trial judge stated that he considered 

that the marriage only endured from May 20, 1984 until March 31, 

1986, when the parties separated. Thus, we find no merit to this 

contention. 

 Lastly, husband asserts that the trial court erred when it 

awarded wife retroactive spousal support. He acknowledges that 

the trial court has discretion to enter an award of spousal 

support effective any time after the date of the commencement of 

the suit. The trial judge commented that the temporary support 

order in the amount of $2,600 monthly was terminated at the end 

of April 1991. He commenced the final order of permanent spousal 

support on May 1, 1991. Husband claims only that the spousal 

support award was not "fair and just" and operates as an 

"injustice" to him. He has not identified any unfairness and 

simply complains that he has paid enough in temporary support. 
 10 

We do not find that the trial judge abused his discretion. 

III. Catherine C. Hurt v. Charles W. Hurt

 In her separate appeal, wife raises the following issues: 

First, she asserts that the trial court erred when it improperly 

considered evidence of her desertion in determining the amount of 

spousal support. She contends that the trial court, once it 

concluded that spousal support should be awarded, was obligated 

to determine the amount of spousal support based upon the nine 

factors enumerated in Code § 20-107.1. In its letter opinion 

dated August 16, 1995, the trial court properly discussed the 

first eight factors and further considered the following evidence 

under paragraph nine (9) of that section: 

 The other factor to be considered is the 

uncorroborated finding of desertion by this 

Court previously. 

 It is clear from this statement that the trial court 

considered fault in determining the amount of spousal support 

under Code § 20-107.1(9). The only "uncorroborated finding of 

desertion" was the alleged desertion by wife and not any fault on 

the part of husband. Thus, the trial court may have improperly 

considered wife's desertion, and committed error with respect to 

the wife's case against her husband. 

 Is fault a factor to be considered under Code § 20-107.1(9) 

(Supp. 1986) in effect at the time this case was commenced? We 

find no Virginia law expressly addressing this issue. The 

statute provides: 

 Any maintenance and support shall be subject 
 11 

to the limitations set forth in § 20-109, and 

no permanent maintenance and support shall be 

awarded from a spouse if there exists in such 

spouse's favor a ground for divorce under any 

provision of § 20-91 (1), (3) or (6) or 

 § 20-95. . . . 

 The court, in determining support and 

maintenance for a spouse, shall consider the 

following: 

* * * * * * * 

 (9) Such other factors, including the tax 

consequences to each party, as are necessary 

to consider the equities between the parties. 

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

this Court explained the statutory scheme of Code § 20-107.1 as 

follows: 

 The determination of spousal support is a 

two-step process: first, the court must 

determine whether either of the parties is 

barred from receiving support due to the 

existence of a marital fault amounting to a 

statutory ground for divorce; and, second, if 

no fault ground exists, then the court must 

weigh the relative needs and abilities of the 

parties in accordance with the statutory 

factors enumerated in Code § 20-107.1. 

Id. at 26, 341 S.E.2d at 210. Thus, once the trial court has 

determined that a spousal support award is appropriate, the only 

factors the trial court may consider in determining the amount of 

the award are the "relative needs and abilities of the parties in 

accordance with the statutory factors enumerated in Code 

§ 20-107.1." Id.

 Wife alleges that the trial court gave improper 

consideration to marital fault (her uncorroborated desertion) 
 12 

under paragraph nine (9) in Code § 20-107.1, which resulted in an 

award to her of only $1,500 monthly. Husband argued at trial, 

and the court agreed, that evidence of marital fault and the 

circumstances contributing to the dissolution of the marriage 

were proper considerations under paragraph nine (9) of Code 

§ 20-107.1. 

 We find that marital fault is not a factor to be considered 

under paragraph nine (9) of Code § 20-107.1. If the General 

Assembly intended for a court to consider circumstances and 

factors contributing to the dissolution of the marriage in 

determining the amount of the award, it would have stated so 

expressly in the enumerated factors. In Code § 20-107.3 the 

General Assembly intended for a court to consider the 

circumstances contributing to the dissolution of the marriage in 

determining the division of the marital property. The statute 

expressly includes in the enumerated factors the court must 

consider, "[t]he circumstances and factors which contributed to 

the dissolution of the marriage . . . ." Code § 20-107.3(E)(5) 

(emphasis added). It chose not to do so with respect to the 

amount of spousal support. 

 Without attempting to envision all of the factors that might 

be included in paragraph nine (9), we conclude that paragraph (9) 

refers to economic and financial factors and not to factors that 

contributed to the dissolution of the marriage. As stated in 

Dukelow, upon the determination that a wife is entitled to 
 13 

spousal support, "the only question was the extent of her need 

for support when balanced against her husband's ability to pay." 

Dukelow, 2 Va. App. at 26, 341 S.E.2d at 211. The trial court 

erred in considering marital fault as a factor under paragraph 

nine (9). 

 Wife claims that the trial court improperly relied upon 

evidence of the value of husband's assets based on auction prices 

he observed in Pennsylvania. Husband testified that he "attended 

an auction for forty million dollars worth of property, similar 

to my own property. At the auction sale the properties did not 

bring half of the county appraised value . . . ." As a result of 

this sale, husband reduced the value of his real estate to 

seventy percent of its assessed value. He inserted this reduced 

value in a financial statement and the statement was introduced 

in evidence. Husband's testimony and the financial statement 

showing the seventy percent reduction in value of the assets were 

introduced in evidence without objection. 

 The trial court in its August 16, 1995 letter opinion stated 

"[t]he Court has also considered . . . all of the stipulated 

exhibits regarding [husband's] financial resources and 

obligations, and the testimony and exhibit concerning his opinion 

as to the value of his current assets based upon 70% of appraised 

value due to an auction he recently attended in Pennsylvania." 

 We do not address the admissibility and weight to be 

attached to this evidence. It was introduced without objection. 
 14 

 No ruling of the trial court will be considered as a basis for 

reversal unless the objection was stated together with the 

grounds therefor at the time of the ruling, except for good cause 

shown or to enable this Court to attain the ends of justice. 

Rule 5A:18. This rule applies to law and equity cases, including 

divorce. See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 

737 (1991) (en banc). A claimed error must be brought to the 

trial court's attention so that the court may consider the issue 

and take corrective action to avoid unnecessary appeals, 

reversals and mistrials. A matter not in dispute before the 

trial court will not be considered for the first time on appeal. 

Connelly v. Commonwealth, 14 Va. App. 888, 891, 420 S.E.2d 244, 

246 (1992). While this Court will take notice of error when 

necessary to satisfy the "ends of justice" exception to the rule, 

our review of the record in this case does not disclose any 

miscarriage of justice. Id.

 Wife asserts that the trial court erred in allowing the 

testimony of Frank Kessler over her objection. Wife never 

objected to the entire testimony of Frank Kessler. She did 

object at trial to specific questions propounded to Kessler, but 

in her brief she has not identified or alluded to specific 

questions and answers which she considers to be objectionable. 

 She states that Kessler "testified as to the loss [husband] 

would suffer if he were forced to sell his real estate holdings 

in a quick liquidation sale," citing the appendix pages 254-260. 
 15 

 Within these pages the trial judge twice sustained objections to 

this type of testimony, once based upon lack of a proper 

foundation and once upon relevance. Wife has not referred to 

specific objectionable testimony within these seven pages. No 

argument and no authorities have been given in accord with Rule 

5A:20. Wife alleges that Kessler's testimony was in the nature 

of expert testimony, yet he was never qualified as an expert and 

his area of expertise was never identified, citing appendix 

251-263. She did not point out in her brief the specific 

testimony to which she was referring and has given no argument or 

authority to support the same. 

 Wife further alleges that the trial court refused to permit 

her counsel to cross-examine Kessler with respect to husband's 

success in the real estate business, citing appendix pages 

267-268. We have reviewed these pages and do not find that the 

trial judge refused to permit wife's counsel to cross-examine 

Kessler. We find the following: 

 Q. And, Charlie Hurt has done very well here since 

you have known him, hasn't he? 

 Mr. Tweel: Objection, Your Honor. No 

foundation. 

 A. I don't know how Charlie Hurt has done. I 

know what I have done. 

 Court: calls for hearsay unless it's 

something [husband] has told you. Sustain 

it. Let's go to the next question. 

 From this record, we find no merit to the wife's assertions 

concerning the testimony of Kessler. "Statements unsupported by 
 16 

argument, authority, or citations to the record do not merit 

appellate consideration. We will not search the record for 

errors in order to interpret [a party's] contention and correct 

deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 

56, 415 S.E.2d 237, 239 (1992). 

 Several of the wife's remaining contentions will be 

considered together. She contends that the trial court failed to 

determine and accord meaningful, substantive consideration to 

husband's earning capacity, to her earning capacity, to her 

standard of living established during the marriage, and to her 

financial needs in determining the amount of the spousal support 

award. 

 In awarding spousal support, the trial 

judge has broad discretion. . . . The trial 

judge must consider all the factors 

enumerated in Code § 20-107.1. Consideration 

entails more than a recitation in the record 

or decree that all factors have been 

considered. We believe that the 

legislature's inclusion in 1982 of specific 

factors in the statute envisioned meaningful 

substantive consideration in the decisionmaking process. When the court does not 

quantify or elaborate on what weight or 

consideration it has given each factor, we 

must examine the record to determine if the 

award is supported by evidence relevant to 

those factors. 

Gibson v. Gibson, 5 Va. App. 426, 434-35, 364 S.E.2d 518, 523 

(1988). 

 The transcript of the evidence and the exhibits are replete 

with substantial evidence relating to all of the factors 

enumerated in Code § 20-107.1. The trial judge outlined in 
 17 

detail much of the evidence in support of his opinion and stated 

that he considered all of the factors enumerated in Code 

§ 20-107.1. 

 The statute requires that the trial judge consider "[t]he 

earning capacity, obligations, needs and financial resources of 

the parties." Husband argued before the trial court and this 

Court that the trial judge could consider only income and 

earnings in determining spousal support. The argument is not 

sound. The word "resources" encompasses money, property, wealth 

and assets of all kinds. Therefore, it was proper for the trial 

court to consider the husband's net worth as shown in the 

financial statements in evidence, which ranged from a low of 

approximately six million dollars to a high of twenty million 

dollars. 

 The trial court imputed to wife an annual income of $53,460, 

after reviewing in its letter opinion her prior earnings, her 

equitable distribution and real estate holdings. Although the 

trial judge did not specifically state the exact amount of 

husband's earning capacity, the record contains ample evidence of 

earning capacity to support his award of spousal support. 

 In its letter opinion, the trial court reviewed the evidence 

concerning the standard of living of the parties during the 

marriage, and wife's financial needs as shown in the record. The 

judge discussed these factors in his letter opinion and obviously 

considered them in reaching his decision. 
 18 

 We conclude that there is meaningful substantive evidence in 

the record to support each factor set forth in Code § 20-107.1 

and that the trial court did consider all of the factors and 

accorded them proper weight within the bounds of his discretion. 

 Lastly, wife contends that the trial court erred when it 

failed to order a lump sum spousal support award. Code 

§ 20-107.1 provides that "[t]he Court, in its discretion, may 

decree that maintenance and support of a spouse be made in 

periodic payments, or in a lump sum award, or both." Although 

the statute grants the trial judge discretion in deciding whether 

to order periodic or lump sum payments, periodic payments are 

generally the preferred form. See Blank v. Blank, 10 Va. App. 1, 

5, 389 S.E.2d 723, 725 (1990). As we stated in Blank, "when 

courts do make lump sum spousal support awards they do so because 

of special circumstances or compelling reasons." Id. See also

Mosley v. Mosley, 19 Va. App. 192, 197, 450 S.E.2d 161, 164 

(1994). We find no abuse of discretion in the award of periodic 

spousal support. 

 In summary, whether spousal support should be paid is 

largely a matter within the sound discretion of the trial court, 

but it is a discretion to be exercised with reference to Code 

§ 20-107.1 and established guidelines. The record in this case 

discloses that the trial court considered all of the factors 

enumerated in the statute, except it should not have included the 

wife's marital fault as a consideration under paragraph nine (9). 
 19 

 We remand this case to the trial court with instructions that it 

reconsider the $1,500 per month award of spousal support and 

modify the award to the extent that the wife's "uncorroborated 

desertion" may have affected the amount of the award. In all 

other respects, the decision of the trial court is affirmed. 

 Affirmed in part,

reversed and remanded

in part.