COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

PHUC T. DAO 

v. Record No. 2071-95-4 MEMORANDUM OPINION*

 PER CURIAM 

NGOC THI NHU NGUYEN NOVEMBER 7, 1995 

 FROM THE CIRCUIT COURT OF 

FAIRFAX COUNTY 

Gerald B. Lee, Judge 

 (George E. Tuttle, Jr., on brief), for appellant. 

 (Thomas F. Koerner, Jr., on brief), for appellee. 

 Phuc T. Dao (husband) appeals the decision of the circuit 

court awarding spousal support to Ngoc Thi Nhu Nguyen (wife). In 

his appeal, husband raises the following issues: (1) whether the 

trial court erred in granting wife's motion for reconsideration 

and setting aside its final decree; (2) whether the trial court 

erred in awarding wife $600 in monthly spousal support; and 

(3) whether the trial court erred in admitting and relying upon 

husband's Affidavit of Support submitted to the Immigration and 

Naturalization Service (INS). Upon reviewing the record and 

briefs of the parties, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the decision of the 

trial court. Rule 5A:27. 

 

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

designated for publication. 
 2 

 I. Motion for Reconsideration

 The wife received legally sufficient notice of the 

August 3, 1994, hearing. Wife was not present at the hearing. 

The court heard husband's evidence and granted custody of the 

parties' child to husband. The court also issued a default 

judgment against wife on the issues of equitable distribution and 

spousal support. 

 Following entry of judgment on August 5, 1994, the judge 

granted a rehearing and set aside the judgment. In his ruling, 

the trial judge found the legal sufficiency of the notice to 

wife. However, the court also noted that wife did not speak 

English and at the time of the hearing was not represented by 

counsel.1

 Wife had attempted to obtain new representation prior 

to the hearing. Therefore, the trial judge elected to "us[e] my 

discretion as a Chancellor," stating that "it would not be fair 

to the parties if I were not [to] give at least [wife] the 

opportunity to present her evidence. . . ." 

 "The conduct of a trial is committed to the sound discretion 

of the trial court." Cunningham v. Commonwealth, 2 Va. App. 358, 

 

 1Husband has filed with this Court a "Motion to Amend 

Record," stating that the motion is significant to an issue in 

the case. The motion states that a complete copy of the order 

allowing wife's counsel to withdraw was not included in the 

record. The trial court's ruling recited the fact that wife's 

counsel had withdrawn. Its decision to allow wife an additional 

opportunity to present evidence was based upon wife's status as a 

pro se litigant. We do not question the fact that wife's counsel 

had withdrawn. Therefore, the motion has no bearing on our 

opinion and we need not rule on it. 
 3 

365, 344 S.E.2d 389, 393 (1986). We cannot say that the trial 

judge's decision to exercise his equitable authority and allow 

wife another opportunity to present evidence was an abuse of 

discretion. 

 II. Spousal Support

 Husband challenges the trial court's decision to award 

spousal support. He contends that the parties' marriage was a 

"green card" marriage intended by the parties only as a tool by 

which wife could enter the United States. However, the trial 

judge, who heard the witnesses and had the opportunity to judge 

their credibility, rejected husband's characterization. The 

judge found as follows: "I don't find a green-card marriage. 

Clearly, I don't think as far as they had a relationship, that 

relationship had some validity. It had some sound nature to it." 

 The evidence proved that the parties lived together, albeit 

for a short time, prior to and after the marriage. Husband 

returned to the United States when his military obligation ended. 

 Later, husband and his mother flew to Japan to see the parties' 

newborn child. Both parties provided financial assistance to 

each other before wife's arrival in the United States. 

Therefore, the record contains evidence to support the trial 

court's factual finding that there was a true marriage between 

the parties. "The judgment of a trial court sitting in equity, 

when based upon an ore tenus hearing, will not be disturbed on 

appeal unless plainly wrong or without evidence to support it." 
 4 

Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). 

 Husband also challenges the amount of spousal support 

awarded to wife. 

 In awarding spousal support, the chancellor 

must consider the relative needs and 

abilities of the parties. He is guided by 

the nine factors that are set forth in Code 

§ 20-107.1. When the chancellor has given 

due consideration to these factors, his 

determination will not be disturbed on appeal 

except for a clear abuse of discretion. 

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 

(1986). 

 The trial court found that both parties made monetary and 

non-monetary contributions to the marriage. Husband's income was 

$40,000, while wife was unemployed and lacked both language 

skills and transportation. It is manifest from the court's 

ruling that the judge considered the statutory factors before 

determining that wife was entitled to receive $600 in monthly 

spousal support. The record does not establish that the trial 

court abused its discretion in the amount of spousal support 

awarded. 

 III. INS Affidavit of Support 

 Husband argues that the trial court erred in admitting the 

INS Affidavit of Support and in placing emphasis on the 

affidavit. At trial, however, counsel did not object to the 

admission of the affidavit. Therefore, husband has waived any 

objection to the admission of the affidavit into evidence. Rule 

5A:18. 
 5 

 Accordingly, the decision of the circuit court is summarily 

affirmed. Affirmed.