COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, J udges Humphreys and O’Brien Argued at Fredericksburg , Virginia

HEIDI MAIKAI SCALZOTT MEMORANDUM OPINION * BY v. Record No . 1459-17-4 JUDGE MAR Y GRACE O’BRIEN APRIL 17, 2018 TODD ALAN SCALZOTT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Daniel Eric Ortiz, Judge Samuel A. Leven (Roy J. Baldwin ; The Baldwin Law Firm, LLC, on brief), for appellant. No brief or argum ent for appellee.

Heidi Maikai Scalzott (“wife”) appeals the court’s decision de nying her request for attorney’s fees from Todd Alan S calzott (“husband”) in their di vorce action. Finding no error, we affirm. BACKGROUND The parties were married on Nove mber 13, 1999 and had two chil dren. During the marriage, husband was the primar y wage earner and wife did not work outside the home. At the time of the final hear ing, wife was employ ed, earning $57,000 p er year. Husband’s salary was $189,000 per year. In July 2016, husband filed for divorce on the grounds of cons tructive desertion and adultery, or in the alternative, one-year separation. He sought equitable distribution, an order denying spousal support to wife, custody of the children, child support, and attorney’s fees. In her

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - responsive pleading, wife denie d the allegations of constructiv e desertion and adultery and requested dismissal of husband’s other claims. She filed a cou nterclaim for separate maintenance, equitable distribution, custody, spousal and chil d support, and attorney’s fees. The court bifurcated the case. After a trial on May 8 and 9, 2017, the court ordered joint legal and shared physical custo dy of the childre n. On June 12 and 13, the court heard the remaining issues of divorce, equitable dist ribution, and spousal support. The parties agreed to reserve the issue of attorneys’ fees for a later d ate. At the conclusion of the June trial, the court found that although there was a “strong suspicion” o f “suspicious behavior” by wife that “contribute[d] to the dissolution of the marriage,” the evidence was insufficient to establish adultery, and granted husband a divorce based on a one- year separation. Although wif e requested $4,000 per month in spousal support, the court awarded her $2,750 per month for sev en years, with a reservation for three additional years, and child support of $367 per month pur suant to the statutory guidelines in Code § 20-108.2. In its equitable distribution ruling, the court awarded the pa rties’ primary residence to husband, but required him to refinance it a nd pay wife $180,806 .50 for her share of the home’s equity. Each party received one- half of the marital share of t he other’s retirement account, each received a car, and the court equ ally divided their joint cash management account. Following the ruling, the parties agreed that they would not n eed a hearing to determine attorneys’ fees, but would submit their declarations and suppor ting memoranda to chambers. The court advised that after receivi ng their submissions it would “ send a short letter opinion out on . . . the issue of fees.” The court asked the parties to submit thei r documents “at leas t maybe a week [before]” a hearing date of Augus t 4, when the court was going to enter the final order. Despite the court’s request, wif e did not submit her memorandu m and request for $53,020 in attorney’s fees until August 3. Husband f iled his opposition t o wife’s request an d his motion for- 3 - $43,320 in attorney’s fees and costs on August 4. Wife filed a reply brief on A ugust 10. The parties also submitted a propose d “Final Order of Divorce” that included a blank paragraph labeled “Attorney[s] Fees.” T he court filled in that space as follows: “the [c]ourt declines to award attorney’s [fees] to any party,” and entered the final decree o n August 9. This appeal followed. DISCUSSION “An award of attorney’s fees is a matter submitted to the tria l court’s sound discretion and is reviewable on appeal only for an a buse of discretion.” Graves v. Graves, 4 Va. A pp. 326, 33 3, 357 S.E.2d 554, 558 (1987). “[T]he key to a proper award of counse l fees [is] reasonableness under all of the circumstances revealed b y the record.” McGinnis v. McGi nnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). Wife maintains that the court ab used its discretion in failingto grant her request for attorney’s fees. She asserts th at the court did not consider the “circumstances of the parties” and the “equities of the case” in making its decision. She also conten ds that because the court found her in need of spousal support, she wa s entitled to atto rney’s fees ba sed on the holdin g in Thomas v. Thomas, 217 Va. 502, 2 29 S.E.2d 887 (1976). In Thomas, the court granted the w ife’s complaint for divorce, awarded her $200 a month in spousal support, but denied her request for attorney’s fees. I d. at 502-03, 229 S.E.2d at 888. However, the evidence established the wife’s substantial need f or support and the husband’s ability to provide it. Id. at 504, 229 S.E.2d at 889. The husband’s annual salary was $28,000, and the wife had earned only $1,546 in the pre ceding twelve months from part -time jobs. Id. at 503, 229 S.E.2d at 888-89. Additionally, her ed ucation and health limited her ability to improve this financial condition. Id. at 504 -05, 229 S.E.2d at 8 89-90. The Supreme C ourt determined that the court abused its discretion in failing to award t he wife her attorney ’s fees because “the wife need[ed] and- 4 - [was] entitled to mainte nance and support[,] and the husband ha [d] the financial ability to meet those needs.” Id. at 50 5, 229 S.E.2d at 890. Wife contends that Thomas sets f orth a “general rule” creating a presumption that attorney’s fees should be awarded to a pa rty who receives spousal support. However, in Artis v. Artis, 4 Va. App. 132, 354 S.E. 2d 812 (1987), we add ressed the specific issue of whether Thomas necessarily requires a court to award attorney’s fees when the court awards spousal support. In ruling that the court did not abus e its discretion by denying a wife’s request for attorney’s fees, we explained: We do not believe that the [C]o urt in Thomas intended to adopt a rule that whenever a wife is granted support, the trial court m ust automatically award a ttorney’s fees. An aw ard of attorney’s fe es to a party in a divorce suit is a matter for the trial court’s sound discretion after considering the circumstances and eq uities of the entire case. Id. at 138, 354 S.E.2d at 815. See also Fa dness v. Fadness, 52 Va. App. 833, 849 n.4, 667 S.E.2d 857, 865 n.4 (2008). We reiterated our conclusion that Thomas does not automaticall y require a court to award attorney’s fees to a party who i s receiving spousal support in Cirrito v. Cirrito, 4 4 Va. App. 287, 605 S.E.2d 268 (200 4). There, we held that although “the relative financial abilities and support issues should be considere d as factors in weighi ng the equities[,] . . . these factors are not exclusively determinative as to whether an a ward should or should not be ma de.” Id. at 300, 60 5 S.E.2d at 274. Accordingly, a court has the di scretion to “consider the equiti es of the entire case” in determining whether an award of attorney ’s fees is appropriate. Id. Here, the record reflects that although wife earns less money than husband, the disparity in income does not nearly approach that of the parties in Thomas. Further, wife received half of all marital property in the equitabl e distribution portion of the h earing, and husband was ordered to pay- 5 - her $2,750 per month in spousal support. W e do not find that, under these circumstances, the Supreme Court’s decision in Thom as required the court also to m ake an award of attorney’s fees. Wife also contends that because s he was the prevailing party a nd because husband has substantial additional assets, she was entitled t o attorney’s f ees. However, we have stated that even in divorce and post-divorce proc eedings, “Virginia law consiste ntly adheres to the ‘American Rule,’ which holds that, ‘o rdinarily, attorneys’ fees are not recovera ble by a prevaili ng litigant in the absence of a specific contractua l or statutory provision to the contrary.’” Mayer v. Corso-Mayer, 62 Va. App. 713, 733, 753 S.E.2d 263, 272 (2014) ( quoting Lannon v . Lee Conner Realty Corp., 238 Va. 590, 594, 385 S.E.2 d 380, 383 (1989)). In Virginia, Code §§ 20-79(b) and 20-99(6) give courts discreti onary authority to “award attorney’s fees and other cost s as the equities of a divorce ca se and its ancillary p roceedings may require.” Tyszcenko v. Donatelli, 53 Va. App. 20 9, 222, 670 S. E.2d 49, 5 6 (2008). 1 Significantly, however, “there is no prevailing- party entitlement to fees unde r Code §§ 20-79(b) and 20-99[6].” Id. at 223, 670 S.E.2d at 57. “Instead, the trial court, in th e exercise of its discretion, may award attorney’s fees and costs to ‘either party as equity and justic e may require.’” Id. (quoting current Code § 20-99(6)). Considered in its entirety, the record establishes that the co urt did not abuse its discretion in declining to grant wife’s reque st for attorney’s fees. Wife ha s invoked no contractual or statutory basis for her request that the court award attorney’s fees to t he prevailing party. Although the divorce was awarded to husband on the ground of one-year separa tion, rather than adultery, the court did articulate a “strong su spicion” of “suspicious behavi or” by wife that c ontributed to the

1 Code § 20-79(b) provides, in rel evant part, that “[i]n any sui t for divorce, the court in which the suit is instituted or pending, when either party to t he proceedings so r equests, shall provide in its decree for . . . counsel fees and other costs, i f in the judgment of the court any or all of the foregoing should be decreed.” Code § 20-99(6) states that “[c]osts may be awarded to either party as equity and justice may require.”- 6 - dissolution of the marriage. The court awarded the parties joi nt legal and physical custody of their children and divided the marital assets equitably. Wife prevai led in her request for spousal support, but received only $2,750 per month , rather than th e $4,000 per month that she sought. Furthermore, nothing in the r ecord indicates that husband unne cessarily prolonged the litigation. See Cirrito , 44 Va. App. at 301, 605 S.E.2 d at 274 -75 (finding that “[t]he record contain[ed] no evidence that the husband’s conduct compounded t he cost of litiga tion requi ring him to reimburse [the wi fe’s] fees”). To the contrary, the case co ntained many complex and interdependent issues. For exam ple, husband’s adultery claim h ad the potential to negate wife’s entitlement to s pousal support. Code § 20-107.1( E). The court found that wife’s behavior was among the “[t]he circumstances and factors whic h contributed to the dissolution of the marriage” and considered it in its equitable distribution determination p ursuant to Code § 20-107.3(E)(5). Finally, wife argues that by not explaining its reasons for de nying attorneys’ fees, the court effectively disregarded the circumstances and equities of the c ase “as a whole” and therefore abused its discretion. We disagree. A court is not required to artic ulate the basis for its decision regarding attorneys’ fees, unlike when det ermining equitable distribution pursuant to Code § 20-107.3(E). See, e.g., Clayberg v . Clayberg, 4 Va. App. 218, 223, 355 S.E.2 d 902, 905 (1987). In Clayberg, this Court reversed an equitable dist ribution determination for lack of compliance with Code § 20-107.3. Id. at 221-23, 355 S.E .2d at 903-05. Howev er, we affirmed the denial of attorneys’ fees to both parties. Id. at 223, 355 S.E.2 d at 905. We found no abuse of discretion, even though the court did not articulate its reasons for denying the fees. Id. “[W]hile the chancellor gave no reasons for the denial of fees and costs, it was implicit that he felt that each party had su fficient income and assets to defray their own expenses. The record supports this conclusion.” Id. (emphasis added). See also Rekow v. Rekow, No. 2588-08-04, 2009 Va. App. LEXIS 180 (Va. Ct . App. Apr. 21, 2009) (per- 7 - curiam) (affirming denial of wife’s request for attorney’s fees despite lack of explanation by the trial judge, because the record reveal ed the denial was appropriate). 2
CONCLUSION For the reasons set forth above , we find that the court’s deni al of wife’s request for attorney’s fees was not an abuse of discretion under either Tho mas, 217 Va. 502, 22 9 S.E.2d 887, or the circumstances an d equities of this cas e. Accordingly, we a ffirm the court’s decision. Affirmed.

2 Although not binding precedent, unpublished opi nions can be ci ted and considered for their persuasive value. Rule 5A:1(f).