COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman Argued at Salem, Virginia

NORVELL WINSTON WEST, III OPINION BY v. Record No. 3025-07-3 CHIEF JUDGE WALTER S. FELTON, JR. DECEMBER 16, 2008 JILL ANGELA WEST

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Jonathan M. Apgar, Judge Michelle C.F. Derrico (Copenhaver, Ellett & Derrico, on briefs), for appellant. Vicki L. Wiese (Wiese Law Firm , PLC, on brief), for appellee.

Norvell Winston West, III (fathe r) appeals from a judgment of the Circuit Court of the City of Roanoke (trial court) awarding spousal support and ch ild support to Jill Ange la West (mother). On cross-appeal, mother contends the trial court erred in awarding her spousal support of $500 per month and child support of $200 per month. She also contends the tria l court erred in failing to award her attorney’s fees and costs. Additionally, mother seeks an award of her attorney’s fees and costs on appeal. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.- 2 - I. Father and mother were married in 1988. Two children were born of the marriage, “A,” born in January 1991, and “B,” bo rn in January 1997. The partie s separated in December 2003, after some fifteen years of marriage. 1 On January 18, 2007, th e trial court held an ore tenus hearing concerning the equitable distribution of the parties’ marital estate, spousal and child support, and each party’s request for attorney’s fees. It adm itted into evidence Tab 12 of mother’s three-ring trial notebook (“Binder”) without objection from father. 2 Tab 12 contained a four-page listing of the thirteen Code § 20-107.1(E) factors require d to be considered by the trial court in deter mining its spousal support award, and statements by mother concerning each of the factors. 3 In its letter opinion dated April 27, 2007, the trial cour t granted mother primary physical custody of the children, with the pa rties sharing legal cust ody. It awarded moth er spousal support of $500 monthly, stating that “[t]he co urt rules that the stat utory factors outlined by [mother] at [T]ab 12 of her [Binder] are convincing in their detail, and are adopted by the court.” It also awarded mother monthly chil d support of $200.

1 In its February 17, 2004 pendente lite order, the trial court awarded mother temporary custody of the children, and monthly child support of $500. It also awarded her spousal support of $545.44 each month, a sum equivalent to “one-h alf of the mortgage payment on the marital home.”

2 The record reflects that the trial court ove rruled father’s objection to the introduction of the Binder as a whole. It instructed father to make any objection to th e introduction of specific evidence contained within the Binder he wished the trial court to consider. Thereafter, father did not object when the trial court admitted the evid ence contained in Tab 12 of mother’s Binder.

3 Tab 12 of mother’s Binder provided, among ot her information, specific figures for the parties’ respective financial resources and oblig ations; information con cerning the standard of living enjoyed by the parties during their marri age; the contributions, monetary and nonmonetary, of both mother and father to the ma rriage; and information concerning the parties’ respective earning abilities.- 3 - By letter dated November 6, 2007, following an October 31 ore tenus hearing, 4 the trial court informed the parties and their respective attorn eys that it would “enter the decree presented by [father’s attorney]” with certai n amendments. Among the trial court’s ame ndments was one that provided that, “[i]n light of [father’s] testimony that his income is now $69,000.00 a year, the decree includes a provision that the uninsured medical expe nses will be borne by him at 70% and [mother] at 30%.” In earlier proceedings, the parties st ipulated that father’s 2006 gross income was $32,440.27 at that time fo r the purposes of determining the child support award. On November 15, 2007, the tr ial court entered a final decree of divorce dissolving the parties’ marriage pursuant to Code § 20-91(A)(9)( a) (separation of more th an one year without the possibility of reconc iliation). The decr ee expressly incorporated the trial court’s “l etter opinion dated April 27, 2007.” It ordere d father to pay spousa l support of $500 mont hly and child support of $200 monthly consistent with th e support ordered in its April 27 letter opinion “[a]fter reviewing [father’s] submitted child support guidelines.” Father prepared four child support guideline worksheets that were made part of the record, each of which is dated Ja nuary 18, 2007. Each worksheet reflects father’s monthly gross income as $2,743, an amount less than father’s actual gross income at the time of th e entry of the final decree, $69 ,000 a year. None of the four worksheets reflect applicable increases and credit s related to the spousal support award to mother of $500 per month. II. Spousal Support Father and mother each conten d the trial court erred in awar ding monthly spousal support of $500 to mother. “In reviewing a spousal support award, we are mi ndful that the trial court has broad discretion in awardi ng and fixing the amount of spousal support. Acco rdingly, our review is

4 The record on appeal does not contain a st atement of facts nor a transcript of that hearing, though it reflects that a court reporter was present. See Rule 5A:8.- 4 - limited to determinin g whether the trial court clearly abused its discretion.” Miller v. Cox , 44 Va. App. 674, 679, 607 S. E.2d 126, 128 (2005). We conclude the trial co urt did not err in its spousal support award. A. Father’s Assertions Father argues the trial court erred in its award of spousal su pport to mother by failing to provide written findings as required by Code § 20-107. 1(F). Father failed to raise this objection in the trial court. “As a precondition to appe llate review, Rule 5A:18 re quires a contemporaneous objection in the trial court to pr eserve the issue on appeal.” Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S. E.2d 738, 742 (citing Riner v. Commonwealth , 268 Va. 296, 325, 601 S.E.2d 555, 571 (2004)), adopted upon reh’g en banc , 45 Va. App. 811, 61 3 S.E.2d 870 (2005). The purpose of Rule 5A:18 is “t o ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals.” Andrews v. Commonwealth , 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002). Because father failed to object in the trial court th at it failed to make the findings required by Code § 20-107.1(F), we will no t consider that argument for the first time on appeal. Ohree v. Commonwealth , 26 Va. App. 299, 308, 49 4 S.E.2d 484, 488 (1998). Father also contends that the evidence presente d at trial was insufficie nt to support the trial court’s award of spousal support to wife. He ar gues that “[d]uring the testimony regarding her request for spousal support, [mother] testified regarding her income and expenses and those of [father],” but that “[n]o other evidence was pr offered with regard to the statutory factors.” Father’s argument is without merit. Tab 12 from mother’s trial no tebook, admitted into evidence without objection, listed each of the Code § 20 -107.1(E) factors and included evidence pertaining to each factor. See Commonwealth v. Jenkins , 255 Va. 516, 522, 499 S.E.2d 263, 266- 5 - (1998) (Court of Appeals erred in disregarding handwr itten notation on disc harge summary received into evidence without objection when evaluating sufficiency of evidence). The tr ial court expressly stated in its final decree that “the statutory factors outlined by [mother] at [T]ab 12 . . . are convincing in their detail.” “Our standard of review requires that we presume the judgment of the trial court to be correct and that we sustain its finding unless it is pl ainly wrong or without evidence to support it.” M. Morgan Cherry & Assocs. v. Cherry , 38 Va. App. 693, 702, 56 8 S.E.2d 391, 396 (2002) ( en banc ) (citations omitted). The record presented on ap peal contains credible evidence to support the trial court’s award of s pousal support to mother. B. Mother’s Assertions Mother contends the trial co urt abused its discretion in aw arding her only $500 monthly in spousal support. She specifically contends th at the trial court erred by awarding her permanent spousal support in an amount le ss than the amount of te mporary spousal support sh e received pursuant to the pendente lite award. 5 Code § 20-103(E) clearly provides that a pendente lite award of spousal support “shall have no presumptive effect and sha ll not be determinative when adjudicating the underlying cause” of spousal support. Mother’s ba re assertion that the trial court erred in awarding her permanent spousal sup port in an amount less than the pendente lite amount is wholly without merit. Mother also asserts that the trial court abused its discretion in failing to award her spousal support in an amount sufficient to provide her wi th a lifestyle to which she was accustomed during the parties’ marriage. “When a party to a divorce suit establis hes an entitlemen t to [spousal]

5 The trial court’s permanent aw ard of spousal support to mother was $4 5.44 less than its pendente lite award.- 6 - support, the law imposes upon the party liable for that support a duty to maintain the dependent party according to the par ties’ marital lifestyle.” McCombs v. McCombs , 26 Va. App. 432, 436, 494 S.E.2d 906, 908 (1998). “However, this obligation is temper ed by the financia l ability of the breaching spouse and by consid eration of all of the fact ors of Code § 20-107.1.” Id. “Where the trial court has considered all of the statutory factors, and has provided written findings and conclusions identifying the statutory factors that suppo rt its ruling, we will not disturb that decision on appeal absent a clear abuse of discretion.” McKee v. McKee , 52 Va. App. 482, 494, 644 S.E.2d 505, 511 (2008) ( en banc ) (citing Robinson v. Robinson , 50 Va. App. 189, 6 48 S.E.2d 314 (2007)). In its award of spousal suppo rt to mother, the trial cour t expressly adopted mother’s evidence contained in Tab 12 of her trial binder cataloging each of the Code § 20-107.1(E) statutory factors. Tab 12 provides, “[father] [] contributed financially off [and] on during our 15 year marriage, although we found we relied on his parents to help s upport us financially.” The record reflects the parties’ reliance on the financial support provided by father’s parents subsidized the lifestyle they enjoyed du ring their marriage, a lifestyle otherwise beyond their financial means. We cannot find from the record that the trial court erred in failing to aw ard mother an amount of spousal support sufficien t to provide her with a lifestyle inflated by the parties’ reliance on father’s parents’ financial support during their marriage. Mother further contends the trial court abused it s discretion in “fail[i ng] to also account for fault grounds” in awarding spou sal support pursuant to “Va. Code Sect. 20-107.3(E)(5).” Pursuant to Rule 5A:20(e), an appellant’s brief must contain “[t]he principles of law, the argument, and the authorities relating to each question pr esented.” Rule 5A:20(e). Code § 20-107.3(E)(5), cited by mother in support of her argument, relates to equitable distribution of the marital estate, not spousal support. Mother otherwise provides no authority to support her argument that the tria l court should have considered he r allegations of marital fault in- 7 - determining the amount of the spou sal support award. Be cause mother failed to comply with the provisions of Rule 5A:20(e), and her failure to do so was substan tial, we will not consider this argument on appeal. See Parks v. Parks , 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008) (citing Cirrito v. Cirrito , 44 Va. App. 287, 30 2 n.7, 605 S.E.2d 268, 275 n.7 (2004) (citing Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E. 2d 237, 239 (1992) (holding that “[s]tatements unsupported by argument, authority, or citations to the r ecord do not merit appella te consideration”))). See also , Jay v. Commonwealth , 275 Va. 510, 659 S.E.2d 311 (2008). Accordingly, we affirm the trial court’s award to mother of spousal support in the amount of $500 monthly. III. Child Support Father and mother each cont end the trial court erred in aw arding mother child support of $200 monthly. For th e following reasons, we reverse the tria l court’s monthly child support award and remand for recalculation of the parties’ child support obligations. We have previously held that [t]he starting point for a trial court in determining the monthly child support obligation of a part y is the amount as computed by the schedule found in Code § 20-108.2(B). This amount is determined according to a schedule that varies according to the combined gross income of the part ies and the number of children involved. No additions or subtract ions from the gross income, as defined in Code § 20-108.2(C), even if otherwise valid considerations, may be made before this figure is determined. However, after determining the presumptive amount of support according to the schedule, the trial court may adjust the amount based on the factors found in Code §§ 20-107.2 and 20-108.1. Deviations from the presumptive support obligation must be supported by written findings whic h state why the application of the guidelines in the particul ar case would be unjust or inappropriate. [ See Code § 20-108.2(A).] If the applicability of the factors is supported by the ev idence and the tria l judge has not otherwise abused his or her disc retion, the deviation from the presumptive support obligation will be upheld on appeal. Richardson v. Richardson , 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991) (emphasis in original).- 8 - In its April 27, 2007 le tter opinion, the trial court informed the parties of it s intent to award mother monthly child suppor t of $200. The parties s tipulated that father’s gr oss income at that time was $32,440 annually. “Abs ent clear evidence to the contrary in the record, the judgment of a trial court comes to an appellate court w ith a presumption that the law was correctly ap plied to the facts.”
Bottoms v. Bottoms , 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). Acco rdingly, absent such evidence, we presume the trial co urt’s award of child support was properly calculated under the statutory guidelines. Here, however, prio r to its entry of the fina l decree establishing child support, the trial court noted in its November 6, 2007 lett er to the parties that father’s “income” was “now $69,000.00 a year.” However, in its final decree, entered on November 15, 2007 , the trial court awarded mother child support in the amount of $200 monthly, ostensibly based on the parties’ earlier stipulation that father’s annual gross income wa s $32,440, not the $69,0 00 gross annual income it noted in its November 6, 2007 lett er to the parties. It is apparent from the face of the record that the trial cour t did not recalculate the parties’ respective child support ob ligations under the guide lines using father’s in creased annual income, and its award of $500 monthly sp ousal support to mother . The amount of ch ild support under the child support guidelines mu st be based on the parents’ actual gross income. Richardson , 12 Va. App. at 21, 401 S.E.2d at 896; Code § 20-108.2(C). Accordingly, we reverse the trial court’s award of $200 monthly in ch ild support to mother and remand for recalculatio n using the parties’ respective income s at the time of the final decree. IV. Attorney’s Fees and Costs Mother contends the trial cour t abused its discretion in denying her request that father be ordered to pay her attorney’s f ees and costs, because she was “t he financially dependent spouse” and because of husband’s alleged marital fault. “An award of attorney’s fees to a party in a divorce- 9 - suit is a matter for the exercise of the trial court’s sound disc retion after consideration of the circumstances and equities of the entire case.” Davis v. Davis , 8 Va. App. 12, 17 , 377 S.E.2d 640, 643 (1989) (citing Wagner v. Wagner , 4 Va. App. 397, 411, 358 S.E.2d 407, 414 (1987)). We will reverse the trial court’s decision whether to award attorney’s fees to a party only where the record shows a clear abuse of discretion. See Ingram v. Ingram , 217 Va. 27, 29, 2 25 S.E.2d 362, 364 (1976). The trial court specifically fo und that, “[t]his case has be en unnecessarily litigious and drawn out by both sides. Not only has that occurred, but the parties also have similar financial resources to pay the amounts genera ted in this case. Therefore, e ach will bear their own costs and fees . . . . ” On this record we cannot find that the trial court ab used its discretion in declining to award attorney’s fees and costs to mother. Mother also seeks attorney’s fees and costs on appeal. “The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment.” McGinniss v. McGinniss , 49 Va. App. 180, 190-91, 638 S.E.2d 697, 702 (2006) (quoting O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). On consideration of the record before us, we decline to aw ard attorney’s fees and costs incurred by moth er on appeal. V. Conclusion On the record presente d, we conclude the trial court did not err by awarding spousal support to mother in the amount of $500 monthly and declining to award her attorney’s fees and costs incurred in the trial court. Accordingly, we affirm its judgment as to those matters.- 10 - However, we conclude that the trial court e rred in its determ ination of child support under the statutory guidelines by failing to calculate th e amount of support using father’s actual gross income at the time of the entry of the final decree of divorce and its award to mother of spousal support of $500 monthly. Acco rdingly, we reverse its award of child support, and remand for recalculation of the parties’ resp ective child support obligations, ta king into account each party’s income from all sources at th e time of the final decree. See Code § 20-108.2(C ) (defining “gross income” for purposes of Code § 20 -108.2 as “all income from all sources”). We also decline to award mother her attorney’s fees and costs incurred on appeal.

Affirmed in part, reversed in part and remanded.