COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

SYLVIA D. ROSS MEMORANDUM OPINION  BY v. Record No . 0748-17-4 JUDGE W ILLIAM G. PETTY DECEMBER 19, 2017 DONALD M. ROSS

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge Richard F. MacDowell, Jr. (MacD owell Law Group, P.C., on brief s), for appellant. Ilona Ely Grenadier (Carole A. Rubin; Elizabeth M. Bookwalter; Grenadier, Starace, Duffett & Le vi, P.C., on brief), for appell ee.
Sylvia D. Ross (wife) assigns s ix errors to the trial court’s decisions regarding spousal support and equitable distribu tion in her divorce from Donald M . Ross (husband). For the reasons below, we affirm in part and reverse and remand in part the trial court’s decisions.
B ACKGROUND Because the parties are fully c onversant with the record in thi s case and this memorandum opinion carries no preced ential value, we recite onl y those facts and incidents of the proceedings as are necessar y to the parties’ understanding of the disposition of this appeal. We view the evidence in the l ight most favorable to husband, th e prevailing party below, granting to him the benefit of a ny reasonable inferences. Cong don v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - The trial court issued a l etter opinion on February 17, 2017, in which it made findings of fact regarding its decisions i n its final order dated March 3, 2017. The trial court issued a second letter opinion dated March 21, 2017, a fter wife filed a motion to reconsider. Both letter opinions were incorporated into the ame nded final order of divorce dated April 7, 2017. Wife now appeals the ame nded final order.
A NALYSIS A. Spousal Support Award Wife argues that the trial cour t erred in faili ng to make suff icient findings 1 to support the amount and defined duration of the spousal support award and th at there was insufficient evidence to support the trial court’s award. “A trial court has broad disc retion in setti ng spousal support and its determination will not be disturbed except for a clear abuse of discretion.” Robi nson v. Robinson, 50 Va. App. 189, 194, 648 S.E.2d 314, 316 (2007) (quoting Brooks v. Brooks, 27 V a. App. 314, 317, 498 S.E.2d 461, 463 (1998)). “Reviewing for a n abuse of discretion does n ot simply mean that a circuit court ‘may do whatever pleases it.’” Shebelskie v. Brown, 287 Va. 18, 26, 752 S.E.2d 877, 881 (2014) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)). Rather, “whe n a decision is discretio nary . . . the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within tha t range and is not influenced by any mistake of l aw.” Lawlor v. Commonwealth, 285 Va. 187, 212-13, 738 S.E.2d

1 “Code § 20-107.1(F) required the ci rcuit court to provide writ ten findings both specifying factors under subsecti on (E) relevant to the award a nd identifying [in the case of a defined duration award] ‘the basi s for the nature, amount, and duration of the award.’” Cleary v. Cleary, 63 Va. App. 364, 372, 757 S.E.2d 588, 591 (2014). Wife did not assign error to the trial court’s failure to specify whic h factors were relevant to each of the two distinct requirements under Code § 20-107.1(F). Therefore, w e consider the trial cou rt’s written findings as applicable to both requirements.- 3 - 847, 861 (2013) (alterations in origin al) (quoting Landrum, 282 Va. at 352, 717 S.E.2d at 137). There are “three principal ways” by whic h a court abuses its discretion: “when a relevant factor that s hould have been given significant weight is not considered; whe n an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, a re considered, but the court, i n weighing those factors, commits a clear error of judgment.” Lawlor, 285 Va. at 213, 738 S.E.2d at 861 (quoting Landrum, 282 Va. at 352, 717 S.E.2d at 137). “Where the trial court has considered all of the statuto ry factors, and has provided written findings and conclusions identif ying the statutory factors that support its ruling, we will not disturb that decision on appeal a bsent a clear abuse of discret ion.” McKee v. McKee, 52 Va. App. 482, 494, 664 S.E.2d 505, 511 (2008) ( en banc ). A trial court may award period ic support for a defined duratio n pursuant to Code § 20-107.1(F). 2 In contested cases, a trial court must make written findings and conclusions identifying the factors in C ode § 20-107.1(E) that support the court’s award. Code § 20-107.1(F). Additionally, “[i]f the court awards periodic s upport for a defined duration, such findings shall identify the basis for the nature, amount and du ration of the award and, if appropriate, a specification of the events and circumstances re asonably contemplated by the court which support the award.” Id.; see Cleary v. Cleary, 63 Va. App. 364, 372, 757 S.E.2d 588, 591 (2014). Periodic support fo r a defined duration is often based upon a finding that a specific future increase i n the recipient’s income is reasonabl y likely. If the court does not state the basis for that assumption on t he record, the appellate cour ts

2 “This has generally been referre d to in other states as an awa rd of rehabilitative alimony.” 9 Peter N. Swisher, Lawre nce D. Diehl, & James R. Co ttrell, Virginia Family Law: Theory, Practice & Forms § 9:7 ( 2017). Rehabilitative alimony has been defined as alimony that ends “after a specified peri od of time or upon the occurrence o f a specified event.” Cleary v. Cleary, 63 Va. App. 364, 371 n.5, 757 S.E.2d 588, 591 n.5 (2014 ) (quoting Family Law Section, Va. State Bar, Rehabilitative Al imony & the Reservation of Spou sal Support in Divorce Proceedings, H. Doc. No. 55 at 15 (1997)).- 4 - cannot review the correctness of the assumption, and there is n o way to test whether future circumstances have made the assumption inaccurate. Cleary, 63 Va. App. at 371 n.5, 757 S.E.2d at 591 n.5 (quoting Family Law Section, Va. State Bar, Rehabilitative Alimony & t he Reservation of Spousal Suppor t in Divorce Proceedings, H. Doc. No. 55 at 15 (1997)). In s ummary, a court may base its award on circumstances reasonably contemplated to occur as long as those events are in cluded in the court’s written findings and supported by the evidence. Here, in determining spousal suppor t, the trial court made fac tual findings in its letter opinions related to the statut ory factors from Code § 20-107.1( E). The duration of the marriage was just over twenty-two years. “ [Husband] made a majority of the monetary contributions [and wife] made the majority of the non-monetary contributions to th e well-being of the family” and “[b]y agreement of the parties, [ wife] was out of the work forc e for most of the marriage raising the parties’ two child ren.” Wife “sustained injuries in accide nts during 2013, 2014, and 2015, and has been diagnosed with post-co ncussive syndrome.” Husband had substantial income from employment while wife was “not c urrently employed.” The trial court further stated, The [c]ourt declines to impute income to [wife]. Both parties presented testimony and evidence of vocational experts in this regard. The [c]ourt finds that [wife] has not been gainfully employed outside the home s ince 1997. Although [wife] provides volunteer legal services to va rious groups, the [c]ourt finds t hat [wife]’s current physical and cogni tive disabilities prevent he r from working as an attorney, wit h the ethical obligations this requires, at this time. The [c]ourt further finds that [husban d]’s evidence was insufficient to s how the availability of jobs othe r than attorney jobs or [wife]’s sa lary potential at jobs other t han attorney jobs. See D ecamp v. Decamp, 64 Va. App. 137 (2014) and McKee v. McKee, 52 Va. App. 482 (2008). However, the [c]ourt believes that [wife] is capable of re-entering the work force within the next 12-18 months. [Wife ] presented herself as a ve ry intelligent and articulate [sic ] who with time should be able t o find gainful employment. Given that there was no credible evidence presented by the parties as t o other employment opportunities commensurate with her skills, the [c]ourt is unable to impute a ny- 5 - income to [wife] at this time . Even taking into consideration the post-concussive syndrome that [ wife] may be experiencing, there was evidence presented that this injury may resolve in the very near future. Add itionally, post-concussi ve syndrome does not prevent [wife] from all gain ful employment but there is no evidence that the [c]ourt has t o make a determination as to wha t employment she may be suited. The trial court awarded wi fe $5,000 per month for a period of f our years and granted wife a reservation of spousal support fo r a period of ten years. Upon wife’s motion for reconsideration, the trial court adjusted the duration of the award to five year s and extended the reservation to eleven years. “Where the trial court has cons idered all of the statutory fac tors, and has provided written findings and conclusions identif ying the statutory factors that support its ruling, we will not disturb that decision on appeal a bsent a clear abuse of discret ion.” McKee, 52 Va. App. at 494, 664 S.E.2d at 511. Simply put, here the trial court has not id entified the findings that provide “the basis for the nature, am ount, and duration of the award” a s required for periodic support payments of a defined durat ion. See Code § 20-107.1(F). Furth ermore, the findings the trial court made were somewhat incon sistent. The trial court found t hat wife is licensed as an attorney; but the trial court specifically found that at this t ime wife cannot ethically perform the duties of an attorney. The t rial court found that wife had not been employed outside the home since 1997; but it found she “shoul d be able to find gainful em ployment.” The trial court found wife’s injury “does not prevent [ wife] from all gainful employm ent, but there is no evidence that the [c]ourt has to make a determination as to what employment [ wife] may be suited.” The trial court initially determined that four years of spousal support p ayments were appropriate; but it did not identify the basis upon whic h it adjusted the duration of t he payments from four years to five years after the motion to recons ider. Although the trial court stated that vocational experts had testified, it also sta ted that “there was no credible evidence presented by the parties as to other- 6 - employment opportunities commensur ate with [wife’s] skills.” I ndeed, the trial court found it had insufficient evidence from which to deduce wife’s earning c apacity. Thus, although the trial court found wife to be “intel ligent and articulate” and found s he was “capable of re-entering the workforce within the next 12-18 months,” the tr ial court did not identify the factors it relied upon to determine that a specific future increase in wife’s income is reasonably likely. See Cleary, 63 Va. App. at 371 n.5, 757 S.E.2d at 591 n.5. A periodic award for a define d duration may be appropriate whe re the trial court makes written findings that a specific future increase in the recipie nt’s income is reasonably likely. Id. at 371, 757 S.E.2d at 591. The writte n findings by the trial c ourt here do not sufficiently state on the record the basis for its assumption that spousal support wi ll no longer be appropriate after five years; we consequently ca nnot review the correctness of th e assumption. Id. On remand, and based on the existing record, the trial court may provide a dditional written findings pursuant to Code § 20-107.1(F) to identify t he factors which support its award of defined-duration spousal support or it may reconsider its award. 3
B. Navy Federal Credit Union Account Wife argues that the trial cour t erred in class ifying the cont ents of Navy Federal Credit Union account –4078 (“NFCU account”) as husband’s separate prop erty. She argues that husband withdrew funds totali ng approximately $44,000 on Novemb er 16, 2015, the date of separation, from joint accounts containing marital property and deposited the funds into the NFCU account which was titled solely in husband’s name. She ar gues that either the original $44,000 or the balance of $16,758 remaining in the NFCU account on the valuation date should

3 We express no opinion as to whether the evidence presented wou ld support a defined-duration award pursu ant to Code § 20-107.1(F). We dete rmine today only that the findings made by the trial court in the record before us were n ot sufficient to support a defined-duration award.- 7 - be classified as marital propert y. In the alter native, wife ar gues that the trial court erred in denying wife’s motion for an alter nate valuation date of the ac count from which the funds were withdrawn, contending that hus band wasted the $44,000 of marita l funds withdrawn from the joint account and deposited into the NFCU account. The trial c ourt’s classifica tion of the NFCU account as husband’s separate pr operty was predicated on the tr ial court’s finding that the parties had stipulated that the account w as husband’s separate property

. 4
“Because the trial court’s cla ssification of property is a fin ding of fact, that classification will not be reversed on appeal unl ess it is plainly wrong or wi thout evidence to support it.” Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2 005). Property acquired by either spouse “during the marriage, and before the last separation of t he parties,” is presumed to be m arital property[, and] . . . the presumpti on that property is marital ceases on the date of the de facto dissolution of the m arital partnership. . . . Generally, property acquire d by one partner after the la st separation when “at least one of t he parties intends that the separation be permanent” is not “acquired . . . during the marr iage” or as part of the marital partnership and will not be marital property, unless it was obtained, at least in part, with marita l funds. . . . The presumption is not simpl y an evidentiary tool that a ssigns the burden of proof or burden of goi ng forward with the evidenc e to a particular party. Rather, t he presumption is substantive, in that it delineates when the marriage or partnership will be presumed to have ended for purposes of cla ssifying property as marital (partnership) or sep arate (individual). Dietz v. Dietz, 17 Va. App. 203, 208-11, 436 S.E.2d 463, 467-68 (1993) (fourth alteration in original).

4 The trial court found, “The partie s stipulated that this accou nt is [husband]’s separate property and that it had a va lue of $16,758 at the time of the November hearing.” Wife objected to the trial court’s classifi cation of the account as husband’s “separate propert y, since the parties did not so stipulate.” Wife a dditionally noted in her motion t o reconsider that the trial court “stated this had been ‘stipulat ed to’ by the parties; however, there was no such stipulation made.” The trial court did not address the classificati on of the NFCU account in its amended final order or the accompanying opinion letter.- 8 - Here, the trial court’s finding t hat the parties had stipulate d that the NFCU account was husband’s separate property is w ithout evidence in the record t o support it. We decline husband’s invitation to determine i n the first instance whether the funds in the NFCU account should be classified as mar ital or separate property. 5 As this Court has “recognized, for purposes of equitable distribution, when a marital partnership begins an d ends is a more dynamic and complex concept than the day on whi ch marital vows are exchange d or a court finally dissolves a marriage that may have long before ended in fact.” Dietz, 17 V a. App. at 209, 436 S.E.2d at 467 (analyzing character of prope rty bought with funds from an acco unt titled separately and initially funded with marital funds shortly a fter separation). We cannot determine as a matter of law, based on the record before us, how the account and the funds re maining in it on the valuation date should be classified. 6 We therefore remand to the tri al court for a determination pu rsuant to Code § 20-107.3 of the classification of the account and, if ne cessary, the equitable distribution of the account funds in light of the factors in Code § 20-107.3 (E). 7

5 Husband suggests that the trial court’s erroneous finding that the account was separate property can be affirmed because the error in finding there was a stipulation was “harmless.” He suggests that even if the tria l court’s reasoning was wrong, it reached the right result because wife failed to provide sufficient evidence from which the trial court could make the factual finding in her favor. “[C]ases are only proper for application of the right result for the wrong reason doctrine when the eviden ce in the record supports the ne w argument on appeal, and the development of additional facts is not necessary.” Perry v. Co mmonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435 (2010). We decline to apply the doctrine h ere because the development of additional factual findings is necessary to the resolution of t he issue.

6 The record indicates that the f unds deposited in the NFCU acco unt on the date of separation consisted mainly of mar ital funds withdrawn from joi nt accounts. It is not clear from the record whether the account had been opened prior to the dat e of separation. Nor is it clear whether funds classified as sep arate property were commingled i n the account, or for what purposes the funds were used. A lthough the trial court found t hat some of the funds were not wasted, as they were used for a proper purpose, it did not make a factual finding as to the use of the remaining marital funds or t he classification of the accoun t.

7 Wife also assigned error to the trial court’s denial of her mo tion for an alternate valuation date for the account based on husband’s purported was te of the funds deposited in the- 9 - C. Marital Residence Wife additionally argues that the trial court erred when it co nsidered the marital residence as marital property without award ing her a “credit” for the amo unt of funds she paid on the mortgage after the parties separated. In the consent pendente lite order dated September 16, 2016, the parties agreed that wife would have the exclusive use and possession of the marital residence and that she would be s olely responsible for the fina ncial obligations related to the marital residence, except for real estate taxes. “Although the separate contribu tion of one party to the acquis ition, care, and maintenance of marital property is a factor t hat the trial court must consi der when making its award of equitable distribution, Code § 20-107.3 does not mandate that t he trial court award a corresponding dollar-for-dollar cr edit for such contributions.” von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997). Here, the trial court consider ed wife’s argument that she had made post-separation payments of $7809 on the mortgage of the marital residence. It also considered husband’s argument that the payments were made from marital funds and tha t wife had exclusive use of the residence after separation. T he trial court found that “all of the equity [in the m arital residence] is marital.” Because there is evidence in the record to suppor t the trial court’s decision, we will not reverse it on appeal.

account. “Code § 20-107.3(A) allows a court to select an alter nate valuation date ‘for good cause shown.’” David v. David, 64 Va. App. 216, 225, 767 S.E.2 d 241, 245 (2015). “One recognized justification for alt ering the evaluation date is a showing of dissipation of marital assets.” Smith v. Smith, 18 Va. App. 427, 430, 444 S.E.2d 269, 272 (1994). Because the classification of assets as marita l or separate is an integral part of the determination of dissipation, and the trial cour t did not classify the account i nto which the funds were deposited, we remand this issue to t he trial court as well.- 10 - D. Striking of Expert Testimony Wife argues that the trial cour t erred in striking an answer b y wife’s expert witness to a question posed by wife on redirect. “Given its responsibility to m anage often complex and hotly co ntested litigation, a trial court has broad discretion to dete rmine the admissibility of ev idence. Piatt v. Piatt, 27 Va. App. 426, 435, 499 S.E.2d 567, 571 (1998). Wife concedes that the trial court made a pre-trial ruling tha t limited the testimony of Dr. Peters, wife’s expert, to t hose matters disclosed to husban d before trial, with all facts relied upon by Dr. Peters highlighted on t he disclosed records. Dr. P eters was qualified as an expert in post-concussion syndrome and was also wife’s treating physician . During direct examination, Dr. Peters testified that wife was most recently seen in his of fice in November of 2016, the month before trial. Dr. Peters testified on cross-examination, however, that he had not personally seen wife in the si x months preceding the trial. Dr . Peters also testified that “most people” recover within a year of receiving a concussion. On re direct, Dr. Peters clarified that “90% of patients are likely to r ecover fully or reach a point o f maximal medical improvement within 18 to 24 months” and the r emaining 10% are considered to have a permanent injury. Wife’s counsel then asked, “And i s that where [wife] is now?” Husband’s counsel moved to strike Dr. Peters’s affirmativ e response, and the trial court g ranted the motion. We cannot say that the trial co urt abused its discretion when it sustained an objection to Dr. Peters’s testimony regarding the current condition of wife when he had not personally seen wife in six months and no evidence regarding wife’s recent medi cal prognosis had been entered into evidence. The questions asked by husband on cross-examina tion were regarding concussion patients in general. Wife sought testimony on redirect regardi ng wife’s medical prognosis. The trial court’s striking of Dr. P eters’s answer was not error.- 11 - C ONCLUSION For the reasons discussed above, w e affirm the trial court’s e quitable distribution of the equity in the marital residence and its striking of Dr. Peters’ s answer on redirect. We reverse the trial court’s award of spousal s upport and remand for the trial court to make written findings as required by Code § 20-107.1(F). S ee Cleary, 63 Va. App. at 366 , 757 S.E.2d at 589. We also reverse the trial court’s findi ng that the parties had stipulat ed that the NFCU account was husband’s separate property and remand for a determination of t he account’s classification and for equitable distribution if necessary. Additionally, we reve rse the trial court’s denial of wife’s motion for an alternate valuati on date and remand for the trial court to reconsider the motion after a classification of the N FCU account has been made. We decline husband’s request for legal fees. Affirmed in part, rever sed and remanded in part.