COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Annunz iata and Frank

BRUCE R. O'BRIEN MEMORANDUM OPINION * v. Record Nos. 0771-99- 2 and 1178-99 -2 PER CURIAM NOVEMBER 9, 1999 SHILLEST CLAYTON

FROM THE CIRCUIT CO URT OF THE CITY OF FREDERICKSBURG John W. Scott, Jr., Judge (James A. Wa tson, II; Lucy C. Chiu; Surovell, Jackson, Colten & Dugan, P.C., on brief), for appellant. (Terrence R. Batzli ; M. Alicia Finley; Barnes & Batzli, P.C., on brief), for appellee.

Bruce R. O'Brien (O'Brien) appe als the final decree of divorce entered by the circuit court on April 22, 1999. 1 O'Brien contends that the tr ial court erre d in its award of spousal support to Shillest Clayton (Clayton ). Specific ally, O'Brien contends that the trial court ab used its discretion by (1) awarding Clayton $1,450 in mont hly spousal su pport without considering the statutory factors in existence on th e date O'Brien filed his bill of complaint; and (2) awar ding Clayton an amount

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.

1 O'Brien filed two appeals raising the same issues. By order of this Court an d with the agreement of the appell ee, these appeals were consolidated.beyond his ability to pa y and in excess of he r demonstrated need. Upon reviewing the reco rd and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27. This matter commenced on June 30, 1996, when O'Brien filed his bill of complaint. The evidence was submitted by deposition testimony and exhibits. "A decree based on testimony in deposition form, while presumed to be correct, is not given the same weight as one where the evidence is heard ore tenus by the chancellor." Moore v. Moore , 212 Va. 153, 155, 183 S.E.2d 172, 174 (1971). However, "'the decree is presumed to be correct and should not be disturbed for lack of proof if the controlling factual conclusions reached are sustained by a fair preponderance of the evidence.'" Nash v. Nash , 200 Va. 890, 898-99, 108 S.E.2d 350, 356 (1959) (citations omitted). Code § 20-107.1 O'Brien contends that the trial court fail ed to consider the statutory fact ors set out in Code § 20 -107.1 before awarding Clayton $1,450 in monthly spousal support. "The determination whether a spouse is entitled to support, and if so how much, is a matter within the di scretion of the court and will not be disturbed on appeal un less it is clear that some injustice has been done." Dukelow v. Dukelow , 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). "In fixing the amount of the spousa l support award, a review of all of the factors contained in Co de § 20-107.1

- 2 -is mandatory, and the amount awarded must be fair and just under all of the circumst ances . . . ." Gamble v. Gamble , 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court's findings must have some foundation based on the evidence presented. Therefore, we hold that in a determination involving spousal support, if the court's findings do not have evidentiary support in the record, then the court has abused its discretion. Woolley v. Woolley , 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). The trial court did not expressl y refer to the statutory factors set out in Code § 20-107.1 , nor did it ex pressly analyze the factors. Therefore, we are required to ensure that the trial court's decisi on had evidentiar y support. We note that the parties prepared memoranda of law prio r to the tr ial court's issuance of the first memorandum opinion in wh ich each party discussed the stat utory factors. O'Brien specific ally addressed the statutory fact ors prior to the issuance of the tr ial court's second memorandum opinio n and final decr ee of divorce. The record demonstrates that evidence pertinent to the statutory factors was received by the trial court. That evidence supports the trial

- 3 -court's decision to award Clayton $1,450 a month in spousal support. It is clear that the trial court considered the parties' earning capacities, obligati ons, needs and fina ncial reso urces. See Code § 20-107.1 (1). At the time of the hearing, Clayton was enrolled in a gr aduate program in architec ture at the University of Pennsylvania. Cred ible evidence supports the conclusion that the parties contem plated Clayton's return to graduate school, particularly after O'Br ien obtained tenure. O'Brien admi tted that the parties had discussed Clayto n returning to school. Other witnesses testif ied that O'Brien and Cl ayton discus sed these plans, even noting th at he might take a sa bbatical or leave of absence to accompany her. See Code § 20-107.1(2). O'Brien contends th at the trial court er red by failing to impute income to Clay ton, based upon her pr evious earnings. He correctly notes th at "[o]ne who seeks spou sal support is obligated to earn as much as he or she reasonab ly can to redu ce the amount of the suppor t need." Srinivasan v. Srinivasan , 10 Va. App. 728, 734, 396 S.E.2d 675, 67 9 (1990). However, this is not an instance where a former spouse failed to contribu te towards her own support. In this ca se, Clayton enro lled in graduate school, as contemplated by the parties throug hout their marria ge. She then used reasonable mean s to provide a portio n of her own support while attending school. She received a scholarshi p grant of $7,150; several loans totaling $18, 500; and $2,000 in work study.

- 4 -Her expenses, foun d by the trial co urt as "necessary and prudent," left her with a shortf all of $1,457 each month. Th erefore, Clayton contri buted towards her own support and es tablished a need for the remainin g balance. We fi nd no abuse of di scretion in the trial court's refu sal to impute income to Clayton under these circumstances. O'Brien also contends that he cannot affo rd to pay $1,450 to Clayton out of his mont hly disposable income of $2,800 because his expenses total $2,544. We note that O'Brie n's monthly expenses included $185 fo r student loans wh ich he had previously deferred but which he no longer deferred; $500 in repayment to his parents of a $5,000 loan; and $400 in monthl y credit card payments. O'Brien admitted that he earned more than $47,000 annually as of December 1997. His 19 95 income tax return reported gross net income of $47,834. The evidence demonstrated th at the parties had a modest lifestyle during the marriage, wh ich lasted five years prior to husband's deci sion to desert the marr iage. While O'Brien had several health problems , he testified in his deposition that he was fine. There was no evidence indicating th at his earnings were affected by any of his reported he alth problems. See Code § 20-107.1(3), (4) and (5). The record supports the trial court's fi nding that O'Brien deserted the marriage. Furthermore, wh en Clayton's in come fell in the fall of 1995 , O'Brien responde d by paying on ly those debts

- 5 -that were listed in his name, cont ributing no funds towards Clayton's food, cl othing, utilit ies or maintenance. In contrast, the court noted that Clayton had "consi stently atte mpted to maintain some kind of employment and to cont ribute to the family income." She used a portion of her sexual discrimination settlement to bu y clothes and supp lies for O'Brie n prior to his research trip to Lo ndon. She also main tained the family's obligations wh ile O'Brien was abroad. See Code § 20-107.1(6). Both parties received half of the marita l assets, wh ich were not extensive. O'Brien was entitl ed to deduct from his income any spousal suppor t paid to Clayton. See Code § 20-107 .1(7), (8) and (9). As evidence supports the tr ial court's deci sion to award $1,450 in monthl y spousal support to Clayton, we affirm that decision. Demonstrated Need and Ability to Pay O'Brien also contends that the trial cour t erred in awarding $1,450 to Clayto n because she actu ally had $36,39 5 available to her in loans, work st udy, scholarships and grants. The evidence indicated that Clayton' s monthly income was $3,157, ba sed upon her scholarship, student lo ans and work study. We find no error in the trial court's assessment of the amount by which Clayton's expenses exceeded her income. As no ted above, O'Br ien's claimed expenses included ce rtain payments which were, at a minimum, flexible in amount. - 6 -Accordingly, the de cision of the circuit court is summarily affirmed. Affirmed.

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