COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Hu mphreys and Millette Argued at Chesapeake, Virginia

STEVEN A. BENZINE OPINION BY v. Record No. 2419-07-1 CHIEF JUDGE WALTER S. FELTON, JR. JULY 8, 2008 KUM SUN BENZINE

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge Patricia A. Helfer for appellant. No brief or argument for appellee.
Steven Benzine (husband) app eals from a judgment of the Ci rcuit Court of the City of Virginia Beach (trial court) awarding Kum Benzin e (wife) spousal support in the amount of $500 monthly. He contends the trial court erred in failing to make wri tten findings and conclusions, as required by Code § 20-107.1(F), id entifying the Code § 20-107.1(E ) factors supporting its final order awarding spousal supp ort to wife. Husband al so contends the trial co urt erred in confirming the report and supplemental report of the commissioner in chancery (commissioner). He additionally contends the trial court erred in failing to consider all of the C ode § 20-107.1(E) factors in awarding spousal support to wife, in failing to use the curren t incomes and expenses of the parties in reaching its support award, in failing to find wife to be voluntarily unemployed, and in determining husband’s ability to pay spousal support in the amount awarded. For the reasons below, we reverse the judgment of the trial court.- 2 - I. BACKGROUND Under familiar principles, “we construe the ev idence in the li ght most favorable to [wife], the prevailing party below, granti ng to [her] evidence all reasonab le inferences fairly deducible therefrom.” Northcutt v. Northcutt , 39 Va. App. 192, 195, 571 S.E. 2d 912, 914 (20 02). So viewed, the record reflects that husband and wife married in 1974 in Seoul, Korea, where husband was stationed in the United States Army. 1 The parties separated in 1991, when husband moved to Wisconsin to be near his family, while wife remain ed in Virginia. Wife f iled a bill of complaint seeking divorce in 2001, an d husband file d a cross-bill. 2 The trial court entered a pendente lite order awarding wife $1,000 a month in temporary spousal support. No further action was taken on the pleadings until 2004, when th e trial court referred the matter to a commissioner in chancery. The commissioner conducted an ore tenus hearing and thereafter filed his report with the trial court. The commi ssioner’s report included a two-page addendum that presented the factual background of the case, includin g the parties’ respective income s and expenses, their respective ages, wife’s physi cal condition, the par ties’ respective property intere sts, their resp ective earning capacities, the duration of their ma rriage, and the financia l consequences of thei r divorce, including issues concerning the partie s’ respective tax liabilities. In the concluding paragraph of his report, the commissioner wrote, “having considered wife’s living expenses (Exhibit P-1), husband’s li ving expenses (Exhibit P-2), [and] husband’s income (Exhibit D-1 and D-2), it is recommended that husb and pay to wife $500 per month, modifiable upon a change of ci rcumstances such as wi fe’s obtaining Social Security disability benefits.” Husband filed an initial exception to th e commissioner’s report , primarily seeking

1 Two children were born of the marriage, both of whom were emancipated at the time of these proceedings.

2 Husband originally filed a petition for divorce in Wisconsin in April 2001, prior to wife filing her bill of complaint in August 2001, seeki ng divorce in Virginia. The record indicates that husband abandoned his Wisconsin petition for divorce.- 3 - clarification of whether the reco mmended award of $500 monthly sp ousal support to wife included, or was in addition to, the mont hly payment she recei ved from hus band’s military retir ement pay. The commissioner’s supplemental report clarifie d that the recommended $500 monthly payment for spousal support was in additio n to wife’s receiving a portion of husband’s military retirement pension. Husband thereafter file d multiple exceptions to the commissioner’s supplemental report. Included in those exceptions was that “(a) the [c]ommissioner ha[d ] not identified the factors in subsection E of Section 20-107.1 of the Code of Vi rginia which support the commissioner’s recommendations as is required by Section 20 -107.1(F), and (b) the [c ]ommissioner ha[d] not considered all of the factors listed in subsection E of Sec tion 20-107.1 of the Code of Virginia, or, if he ha[d] considered them, his re commendation [was] inco nsistent with the evidence.” Husband’s exceptions also individually listed the various factors of Code § 20-107.1(E) and how the evidence presented related to each. In its final decree of divorce, the trial c ourt “confirmed” the commissioner’s report and supplemental report, overruled husband’s exceptions to the reports, and awarded spousal support to wife of $500 monthly, “pur suant to the recommendatio n of the [c]ommissioner.” 3 Following the signature lines of the trial cour t and counsel on the final decree , husband noted his objections, providing detailed exceptions to the decree, including the trial court’s failu re to provi de written findings and conclusions identifyin g the Code § 20-107.1 (E) factors on which it relied in its award of spousal support. This appeal followed.

3 The final decree states that the court overruled husband’s exceptions to the commissioner’s report on May 12, 2005. No transc ript or order of the May 12, 2005 hearing is in the record on appeal.- 4 - II. ANALYSIS “In reviewing a spousal support award, we are mindful that the trial court has broad discretion in awarding and fixing the amount of spousal support.” Miller v. Cox , 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005). “Accordingly, our review is limited to determining whether the trial court clearly abus ed its discretion.” Id. A trial court abus es its discretion as a matter of law when it fails to adhere to statutory requirements. See Robinson v. Robinson , 50 Va. App. 189, 194, 648 S.E.2d 314, 316 (2007). On appeal, husband contends th e trial court, in awarding spou sal support to wife, erred by failing to comply with C ode § 20-107.1(F), which requires that, “[i]n contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conc lusions of the court id entifying the factors in subsection E which support the court’s order.”
In Robinson , we held that the plain language of Co de § 20-107.1(F) requires the trial court to provide express written findin gs and conclusions supporting it s spousal support decision in a contested case. Robinson , 50 Va. App. at 195-96, 64 8 S.E.2d at 317 (citing Earley v. Landsidle , 257 Va. 365, 370, 514 S.E.2d 153, 155 (19 99) (“[W]hen the language in a statute is clear and unambiguous, the courts ar e bound by the plain mean ing of that language.”)). We concluded in Robinson that a trial court does not comply with Code § 20-107.1 (F) where the final decree of divorce granting spousal support provides neither “fact s pertaining to [the] particular case and the evidence presented at trial,” nor “any findings or conclusions identifying th e factors listed in Code § 20-107.1(E) that support th e spousal support award.” Id. at 196, 648 S. E.2d at 317. A trial court may refer matters pending before it to a commissi oner in chancery to assist the court by taking evidence and making recommendati ons regarding those matters referred to it in a report. The trial court may either confirm or re ject the report of the commissioner “in whole or- 5 - in part, according to the view which it entertains of the law and the evidence.” Code § 8.01-610. However, Code § 20-107.1(F) requires more in contested cases of spousal support. “‘When a court refers a cause to a commi ssioner in chancery, it does not delegate its judicial functions to the commissi oner . . . . Rather, the court must review the evidence, apply the correct principles of law, and make its own conclu sions as to the appropri ate relief required.’” Morrill v. Morrill , 45 Va. App. 709, 714, 613 S.E.2d 821, 823 (2005) ( en banc ) (quoting Dukelow v. Dukelow , 2 Va. App. 21, 26-27, 341 S.E.2d 208, 211 (1986)). While the commissioner may assist the trial court in the “expeditious performance of [its] . . . duties,” Raiford v. Raiford , 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952), the plain language of Code § 20-107.1(F) requires a final order granting or denying spousal suppor t in a contested case to be accompanied by “wr itten findings an d conclusions of the court identifying the fact ors in subsection E which support the court’s order.” Code § 20-10 7.1(F) (emphasis added). It is the trial court’s thought process and consid eration of the Code § 20-107.1(E) fa ctors related to its spousal support decision in contested cases that the legislature has determined must be reflected in its order. Here, the final decree of divorce was not accompanied by the written findings and conclusions of the trial court required by Code § 20-107.1(F), even though husband brought that omission to the trial court’s attention in his exceptions to the final decree. 4 It merely confirmed the commissioner’s report and supplem ental report, overruled husband’s exceptions to those reports, and granted wife spousal suppor t of $500 monthly as recomme nded by the commissioner without specifying which of the C ode § 20-107.1(E) factors it consider ed in making th at award. We

4 We recognize that trial cour ts routinely assign the prepar ation of final decrees in domestic cases to attorneys repres enting parties. However, it is the duty of the trial court to assure that the final decree comp lies with statutory mandates. See, e.g., Lanzalotti v. Lanzalotti , 41 Va. App. 550, 554-55, 586 S.E.2d 881, 883 (2003) (“[T]he General Assembly amended Code § 20-124.3 to direct the trial court to state the ‘basis for [its] decision . . . .’”); Richardson v. Richardson , 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991) (“Whenever a child support award varies from the guidelines, Code § 20-108.2(A) re quires the trial court to make written findings of fact . . . .”); Code § 20-107.1(H).- 6 - conclude the trial court abused its discretion by failing to comply w ith the clear stat utory mandate of Code § 20-107.1(F) that, where sp ousal support is a contested issu e between the parties, “written findings and conclusions of the court identifyin g the factors in subsec tion E which support the court’s order” must accomp any the final order relatin g to spousal support. See Robinson , 50 Va. App. at 195-96, 648 S.E.2d at 317. Because the trial court failed to identify the Code § 20-107.1(E) factors supporting its spousal support award, we are unable to determine whether it erred in awarding wife $500 monthly in spousal support, or which of th e Code § 20-107.1(E) fa ctors it considered and applied in reaching that decision. For these reasons, we reverse the award of spousal support to wife and remand for reconsideration of the spousal supp ort issue based on the existing reco rd and in accord ance with this opinion. Reversed and remanded.