COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata 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 COURT OF THE CITY OF FREDERICKSBURG 

John W. Scott, Jr., Judge 

 (James A. Watson, 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) appeals the final decree of 

divorce entered by the circuit court on April 22, 1999.1 O'Brien 

contends that the trial court erred in its award of spousal 

support to Shillest Clayton (Clayton). Specifically, O'Brien 

contends that the trial court abused its discretion by 

(1) awarding Clayton $1,450 in monthly spousal support without 

considering the statutory factors in existence on the date O'Brien 

filed his bill of complaint; and (2) awarding 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 and with the agreement of the appellee, these 

appeals were consolidated. 
beyond his ability to pay and in excess of her demonstrated need. 

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. 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 failed to consider the 

statutory factors 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 discretion of the court and will not be 

disturbed on appeal unless 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 spousal support 

award, a review of all of the factors contained in Code § 20-107.1 

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is mandatory, and the amount awarded must be fair and just under 

all of the circumstances . . . ." 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 expressly refer to the statutory 

factors set out in Code § 20-107.1, nor did it expressly analyze 

the factors. Therefore, we are required to ensure that the trial 

court's decision had evidentiary support. We note that the 

parties prepared memoranda of law prior to the trial court's 

issuance of the first memorandum opinion in which each party 

discussed the statutory factors. O'Brien specifically addressed 

the statutory factors prior to the issuance of the trial court's 

second memorandum opinion and final decree of divorce. The record 

demonstrates that evidence pertinent to the statutory factors was 

received by the trial court. That evidence supports the trial 

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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, obligations, needs and financial resources. 

See Code § 20-107.1(1). At the time of the hearing, Clayton was 

enrolled in a graduate program in architecture at the University 

of Pennsylvania. Credible evidence supports the conclusion that 

the parties contemplated Clayton's return to graduate school, 

particularly after O'Brien obtained tenure. O'Brien admitted that 

the parties had discussed Clayton returning to school. Other 

witnesses testified that O'Brien and Clayton discussed these 

plans, even noting that he might take a sabbatical or leave of 

absence to accompany her. See Code § 20-107.1(2). 

 O'Brien contends that the trial court erred by failing to 

impute income to Clayton, based upon her previous earnings. He 

correctly notes that "[o]ne who seeks spousal support is obligated 

to earn as much as he or she reasonably can to reduce the amount 

of the support need." Srinivasan v. Srinivasan, 10 Va. App. 728, 

734, 396 S.E.2d 675, 679 (1990). However, this is not an instance 

where a former spouse failed to contribute towards her own 

support. In this case, Clayton enrolled in graduate school, as 

contemplated by the parties throughout their marriage. She then 

used reasonable means to provide a portion of her own support 

while attending school. She received a scholarship grant of 

$7,150; several loans totaling $18,500; and $2,000 in work study. 

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Her expenses, found by the trial court as "necessary and prudent," 

left her with a shortfall of $1,457 each month. Therefore, 

Clayton contributed towards her own support and established a need 

for the remaining balance. We find no abuse of discretion in the 

trial court's refusal to impute income to Clayton under these 

circumstances. 

 O'Brien also contends that he cannot afford to pay $1,450 to 

Clayton out of his monthly disposable income of $2,800 because his 

expenses total $2,544. We note that O'Brien's monthly expenses 

included $185 for student loans which he had previously deferred 

but which he no longer deferred; $500 in repayment to his parents 

of a $5,000 loan; and $400 in monthly credit card payments. 

O'Brien admitted that he earned more than $47,000 annually as of 

December 1997. His 1995 income tax return reported gross net 

income of $47,834. 

 The evidence demonstrated that the parties had a modest 

lifestyle during the marriage, which lasted five years prior to 

husband's decision to desert the marriage. While O'Brien had 

several health problems, he testified in his deposition that he 

was fine. There was no evidence indicating that his earnings were 

affected by any of his reported health problems. See Code 

§ 20-107.1(3), (4) and (5). 

 The record supports the trial court's finding that O'Brien 

deserted the marriage. Furthermore, when Clayton's income fell in 

the fall of 1995, O'Brien responded by paying only those debts 

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that were listed in his name, contributing no funds towards 

Clayton's food, clothing, utilities or maintenance. In contrast, 

the court noted that Clayton had "consistently attempted to 

maintain some kind of employment and to contribute to the family 

income." She used a portion of her sexual discrimination 

settlement to buy clothes and supplies for O'Brien prior to his 

research trip to London. She also maintained the family's 

obligations while O'Brien was abroad. See Code § 20-107.1(6). 

 Both parties received half of the marital assets, which were 

not extensive. O'Brien was entitled to deduct from his income any 

spousal support paid to Clayton. See Code § 20-107.1(7), (8) and 

(9). 

 As evidence supports the trial court's decision to award 

$1,450 in monthly spousal support to Clayton, we affirm that 

decision. 

Demonstrated Need and Ability to Pay

 O'Brien also contends that the trial court erred in awarding 

$1,450 to Clayton because she actually had $36,395 available to 

her in loans, work study, scholarships and grants. The evidence 

indicated that Clayton's monthly income was $3,157, based upon her 

scholarship, student loans 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 noted above, O'Brien's claimed 

expenses included certain payments which were, at a minimum, 

flexible in amount. 

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 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.

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