COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Ortiz and Senior Judge Annunziata

Argued at Fairfax, Virginia

JOHN K. LEO

MEMORANDUM OPINION* BY

v. Record No. 1402-22-4 JUDGE DANIEL E. ORTIZ

OCTOBER 10, 2023

DANNAH A. LEO

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

James P. Fisher, Judge

Ryan M. Schmalzle (Beckman Schmalzle Georgelas & Ross, PLC, 

on brief), for appellant.

Jacob E. Smith (John C. Whitbeck, Jr.; WhitbeckBennett, PLLC, on 

brief), for appellee.

A circuit court ordered John K. Leo (“husband”) to pay Dannah A. Leo (“wife”) $4,100 in 

monthly spousal support for ten years. Husband appeals this order, arguing that the circuit court 

erred in determining the award’s amount. First, husband contends that the circuit court failed to 

properly account for wife’s entire income and her actual need for support. Second, husband argues 

that the circuit court valued indemnity provisions relating to wife’s share of husband’s military 

retired pay without hearing sufficient evidence regarding such provisions’ value. Because the 

circuit court did not err, we affirm.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND1

Husband and wife married on August 6, 2005 and separated on December 16, 2018. On 

April 24, 2019, wife filed for divorce. The parties agreed to the division of husband’s military 

retired pay and their gross monthly incomes, but they did not agree on the amount and duration of 

wife’s spousal support.2 During trial, each party submitted income and expense statements. 

After hearing the evidence and arguments, the circuit court considered each of the Code 

§ 20-107.1(E) factors to determine spousal support. The circuit court found that husband had a 

“terrific capacity for earning income in comparison to the wife” and husband’s financial resources 

“far outweigh[ed]” wife’s resources. The parties’ “substantially high standard of living” was 

another factor that the circuit court weighed “heavily.” In addition, the circuit court noted that the 

parties had been married 13 years and wife was the sole custodian of one of the minor children who 

required extra attention. This custodial arrangement impacted wife’s employment opportunities and 

earning capacity, which was another factor that the circuit court weighed “heavily.” Finally, the 

circuit court found that husband “drove the expenses of litigation.” 

After finding that the factors weighed “greatly in favor of the wife,” the circuit court entered 

a final order of divorce (the “divorce order”), which awarded wife $3,100 in monthly spousal

support for ten years. As part of the divorce order, the circuit court also ordered the division of 

husband’s military retired pay. To specifically address that pay, the circuit court also entered a 

“Court Order Assigning Military Retired Pay” (the “retirement order”), which included two 

1

“When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App. 

255, 258 (2003)). Here, wife was the prevailing party.

2 The parties agreed that wife would receive half the marital share of husband’s military 

retired pay. The parties also stipulated that husband’s gross monthly income was $16,246.99 and 

wife’s gross monthly income was $6,295.83. 
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provisions that protected wife. The first required husband to indemnify wife “for any Military 

Retired Pay waived as a result of a disability election.” The second prohibited husband from 

“making any elections . . . that in any way adversely affects the existence or amount of his Military 

Retired Pay or the rights of” wife. Husband appealed the divorce order and the retirement order. 

On February 1, 2022, this Court reversed and remanded both orders. See Leo v. Leo, Nos. 

0477-21-4 and 0478-21-4, 2022 WL 287027, at *3 (Va. Ct. App. Feb. 1, 2022). This Court held 

that the retirement order’s two provisions requiring husband to indemnify wife and prohibiting him 

from making any election that adversely affected his military retired pay violated the United States 

Supreme Court’s holding in Howell v. Howell, 581 U.S. 214 (2017). Id. at *2. Thus, the Court 

vacated the retirement order and remanded “for entry of a new order,” and because of that remand, 

it reversed the spousal support award and remanded for the circuit court “to recalculate the 

appropriate amount after considering the corrected military pay order.” Id. at *3. 

At the remand hearing, the circuit court held that it would “read the mandate narrowly” by 

recalculating spousal support after correcting the retirement order. The circuit court asked the 

parties to “value . . . the marital share of the affected property” (i.e., husband’s military retirement 

pay), which was now “unavailable as a distribution to the wife.” The circuit court further asked 

how this change in marital distribution should impact the spousal support award. Husband argued

that the two provisions “add[ed] no value” or “[t]o the extent it ha[d] any value, it’s de minimus”

value. Husband further explained that wife did not lose her interest in husband’s military retired 

pay; she lost only the two provisions protecting her interest in such pay. The circuit court disagreed, 

stating that this Court’s remand would be “futile” if the provisions had no value. The parties agreed 

that wife’s share of husband’s military retired pay as of the date of the hearing was $674 per 

month—sixteen percent of husband’s retirement pay. 
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Husband admitted that he did not want a new evidentiary hearing on spousal support. 

Rather, he “just want[ed] to preserve [his] arguments” regarding spousal support that he had 

previously made on appeal. The parties and the circuit court acknowledged that this Court had not 

addressed the merits of husband’s arguments regarding spousal support. Husband agreed that the

circuit court could “readopt” its previous findings and not have “a whole trial,” provided he could 

file objections. The circuit court allowed husband to orally restate his objections to the previous 

spousal support ruling, including his skepticism of wife’s expenses as reflected in her income and 

expense statement. 

For example, husband argued that such statement listed wife’s credit card payments, which 

included charges for “groceries, lunches, [and] things like that” but that those expenses were also

reflected on her income and expense statement. Furthermore, husband noted that this statement 

included wife’s legal fees even though the circuit court had separately ordered husband to pay 

wife’s legal fees. Husband also emphasized that this statement included the children’s school 

tuition despite wife receiving two education savings accounts in equitable distribution to use for 

such tuition. Finally, husband challenged wife’s donations for “church/charity,” contending that he 

should not be responsible for a “compulsory religious donation.” After subtracting these expenses, 

husband argued that wife did not really need spousal support. Wife contended the circuit court had 

already weighed this evidence and the Code § 20-107.1(E) factors. 

After hearing the parties’ arguments and reviewing their briefs, the circuit court ordered 

husband to pay wife $4,100 in monthly spousal support for ten years. In this order (the “remand 

order”), the circuit court adopted and incorporated its previous written findings regarding spousal 

support. The circuit court also directed the parties to strike the prohibited language from the 

retirement order and prepare a “new and corrected” order.3 The circuit court further considered that 

3 The record does not include a corrected retirement order.
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wife was “in a position of a reasonably significant vulnerability” considering the “contingent nature 

of the military retirement benefit.” Accordingly, the circuit court found it “equitable and just” to

increase the spousal support award. The circuit court also ordered that the award was retroactive 

and directed the parties to determine the arrearage amount and submit an agreed order.4

When the parties could not agree, wife asked the circuit court for a spousal support order 

consistent with its remand order. Husband objected. On August 19, 2022, the circuit court entered 

the “Spousal and Child Support Order” (the “support order”). In the support order, the circuit court 

adopted and incorporated its prior findings and rulings regarding spousal support from both the 

divorce order and the remand order. The circuit court ordered husband to pay wife $4,100 per 

month for spousal support, beginning March 19, 2021, for ten years. It also found that the 

arrearages totaled $16,387 as of July 31, 2022 and ordered husband to pay $500 per month until 

fully paid. Twenty days later, husband filed objections and a motion to stay and reconsider. The 

circuit court did not rule on the motion. Husband appeals.

4 On appeal, wife argues that husband’s appeal is procedurally defaulted because he did 

not timely note his objections or appeal the remand order. We disagree because husband had 

made known his arguments during the remand hearing. If “a trial court is aware of a litigant’s 

legal position and the litigant did not expressly waive such arguments, the arguments remain 

preserved for appeal.” Canales v. Torres Orellana, 67 Va. App. 759, 771 (2017) (en banc) 

(quoting Brown v. Commonwealth, 279 Va. 210, 217 (2010)). Furthermore, the remand order 

was not a final order because it had directed the parties to finalize the outstanding arrearage 

issues and submit a new order. “A final order is one which ‘disposes of the entire action and 

leaves nothing to be done except the ministerial superintendence of execution of the judgment.’” 

Kosko v. Ramser, 299 Va. 684, 687 (2021) (quoting Super Fresh Food Mkts. of Va., Inc. v. 

Ruffin, 263 Va. 555, 560 (2002)). “Stated differently, an order that ‘retains jurisdiction to 

reconsider the judgment or to address other matters still pending’ is ordinarily not a final order.” 

Friedman v. Smith, 68 Va. App. 529, 538 (2018) (quoting Super Fresh, 263 Va. at 561).
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ANALYSIS5

I. Standard of Review

“The trial court has ‘broad discretion in setting spousal support and its determination will 

not be disturbed except for a clear abuse of discretion.’” Wyatt v. Wyatt, 70 Va. App. 716, 719 

(2019) (quoting Giraldi v. Giraldi, 64 Va. App. 676, 681 (2015)). “When a court awards spousal 

support based upon due consideration of the factors enumerated in Code § 20-107.1, as shown by 

the evidence, its determination ‘will not be disturbed except for a clear abuse of discretion.’” 

Chaney v. Karabaic-Chaney, 71 Va. App. 431, 435 (2020) (quoting Dodge v. Dodge, 2 Va. App. 

238, 246 (1986)). “In determining the appropriate amount of spousal support, the trial court must 

consider the needs of the requesting party and the other spouse’s ability to pay.” Wyatt, 70 

Va. App. at 719 (quoting Alphin v. Alphin, 15 Va. App. 395, 401 (1992)).

5 On appeal, wife also argues that husband’s appeal violated Rule 5A:20. We agree that 

husband’s brief violates three subsections of Rule 5A:20. First, husband’s brief does not contain 

a “clear and concise statement of the facts that relate to the assignments of error, with references 

to the pages of the record.” Rule 5A:20(d) (emphasis added). While husband’s brief has a 

statement of facts, such facts do not relate to his alleged assignments of error. Instead, his 

statement of facts discusses only the appeal’s procedural history, while his argument section 

presents entirely new facts with no cites to the record or an appendix. Second, husband’s brief 

does not contain a “short conclusion stating the precise relief sought.” Rule 5A:20(f) (emphasis 

added). Rather, his brief concludes by simply stating that the circuit court erred and asking “this 

Court [to] entertain oral arguments.” And lastly, husband’s brief violates Rule 5A:20(h) by not 

containing a certificate stating the number of words contained in his brief. However, these 

violations are not sufficiently egregious to consider husband’s assignments of error waived. 

Compare Parks v. Parks, 52 Va. App. 663, 664 (2008) (refusing to consider assignments of error 

where appellant did not present any legal authority to support her assignments of error), with Jay 

v. Commonwealth, 275 Va. 510, 520 (2008) (reversing this Court for treating “insignificant” 

violations of Rule 5A:20(d) as a bar to considering the merits of appellant’s arguments). 
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II. Spousal Support

Husband argues that the circuit court erred in determining the spousal support award 

because it failed to consider all of wife’s income and limit her award to her actual need.6 

Essentially, husband contends that the circuit court erred by failing to properly consider the first 

factor enumerated in Code § 20-107.1(E). See Code § 20-107.1(E)(1). We disagree, however, 

because the circuit court must consider many factors—not just one—when awarding spousal 

support and it considered all such factors.

A circuit court must consider 13 different factors when “determining the nature, amount and 

duration of a [spousal support] award.” See Code § 20-107.1(E). “While a trial judge must 

consider all the factors, the judge is not ‘required to quantify or elaborate exactly what weight or 

consideration it has given to each of the statutory factors.’” Pilati v. Pilati, 59 Va. App. 176, 183 

(2011) (quoting Duva v. Duva, 55 Va. App. 286, 300 (2009)). “What weight, if any, to assign to 

this [or that] factor . . . lies within the trial court’s sound discretion.” Pilati, 59 Va. App. at 183 

(alteration in original) (quoting Robbins v. Robbins, 48 Va. App. 466, 481 (2006)).

6 Wife argues that husband is prohibited from making these arguments because he 

previously made them in his earlier appeal of the divorce order. See Leo, 2022 WL 287027, at 

*1. We disagree. “In Virginia, an appellate mandate ‘is the directive of the appellate court 

certifying a judgment in a particular case to the court from which it was appealed’ and thus 

‘speaks only to that case.’” Sidya v. World Telecom Exch. Communs., LLC, 301 Va. 31, 41 

(2022) (quoting Powell v. Commonwealth, 267 Va. 107, 128 (2004)). “While a trial court must 

obey ‘both the letter and spirit’ of an appellate mandate, the mandate rule only precludes the trial 

court from considering issues that ‘the mandate laid at rest.’” Id. (quoting United States v. Bell, 

5 F.3d 64, 66-67 (4th Cir. 1993)). “[T]he rule is ‘merely a “specific application of the law of the 

case doctrine,”’ which has the effect of foreclosing ‘relitigation of issues expressly or impliedly 

decided by the appellate court.’” Id. (quoting Powell, 267 Va. at 128). As acknowledged by the 

parties and the circuit court, this Court did not consider the merits of husband’s arguments in the 

previous appeal; instead, this Court specifically remanded the spousal support award for the 

circuit court to “recalculate the appropriate amount after considering the corrected military pay 

order.” Leo, 2022 WL 287027, at *3. On remand, the circuit court reconsidered and recalculated 

the spousal support award according to this Court’s mandate. We now consider husband’s

arguments on appeal, as they are properly before the Court.
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Here, the circuit court considered all 13 factors and thus did not err. When issuing the 

divorce order, the circuit court considered each Code § 20-107.1(E) factor before awarding spousal 

support to wife. For example, the circuit court focused on husband having a “terrific earning 

capacity” relative to wife; husband having financial resources “far outweigh[ing]” wife’s resources; 

the parties having “a substantially high standard of living” during the marriage; the marriage lasting 

13 years; wife being the sole custodian of a minor child requiring extra attention; the custody 

arrangement impacting wife’s employment and earning capacity; and husband driving the 

litigation’s expenses. With these factors greatly favoring wife, the circuit court initially awarded 

wife $3,100 in monthly spousal support. 

Then, the circuit court adopted and incorporated these previous findings and rulings into its 

remand order.

7

 When issuing its remand order, the circuit court limited its focus to this Court’s 

mandate—i.e., “to recalculate the appropriate [spousal support] amount after considering the 

corrected military pay order.” To correct that order, the circuit court struck the indemnification 

clause and the prohibition against husband making any election that adversely affected his military 

retirement pay. The circuit court recognized that the now “contingent nature of the military 

retirement benefit” placed wife in “a position of a reasonably significant vulnerability.”8 Because of 

wife’s “lack of certainty” concerning such retirement, the circuit court found that it was “equitable 

and just” to increase wife’s monthly spousal support to $4,100. Code § 20-107.1(E) required the 

circuit court consider wife’s changed interest in husband’s military retirement pay. See Code 

7 Husband agreed that such adoption and incorporation was acceptable. 

8 For instance, wife received her interest in husband’s military retirement pay when she 

was 45 years old. If wife lived another 30 years and had the indemnification provisions, her 

interest in the military retirement pay was essentially guaranteed to be worth over $240,000. 

However, since wife now lacks those indemnification protections, husband could—at any 

moment—convert his military retirement pay to disability. And if he did, wife’s value in such 

retirement pay could decrease to $0.
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§ 20-107.1(E)(1), (7), (8) (requiring a circuit court to consider the “financial resources of the 

parties, including . . . all pension, profit sharing or retirement plans, of whatever nature”; the 

“property interests of the parties, both real and personal, tangible and intangible”; and the 

“provisions made with regard to the marital property”). 

Despite this record, husband nevertheless contends that the circuit court erred by not 

considering wife’s entire income. However, at the remand hearing, husband advised the circuit 

court that the parties had stipulated to wife’s gross monthly income. Husband offers nothing on 

appeal to suggest that the circuit court did not consider this stipulated income when reconsidering

the spousal support award on remand. 

Husband also suggests that the circuit court erred by not limiting wife’s spousal support to 

her demonstrated needs. Husband specifically argues that, because wife “double counted” some of 

her expenses, she does not really need spousal support. Yet husband again fails to show how the 

circuit court relied upon such duplicate expenses when awarding spousal support. Moreover, 

husband cites no authority suggesting that a court must determine a party’s need on a dollar-bydollar basis. In fact, this Court’s precedent suggests otherwise. See Robbins, 48 Va. App. at 484 

n.10.

9

Ultimately, husband’s arguments fail because they focus solely on one factor— wife’s 

income and expenses—whereas the circuit court needed to—and in fact did—consider all 13

9

In Robbins v. Robbins, this Court stated the following:

While Code § 20-107.1(E)(1) requires the consideration of the 

“needs” of the “parties,” the statute does not (as the child support 

statute does) create a mathematical formula primarily reliant on the 

input of financial data. Instead, § 20-107.1(E) requires only the 

factfinder to “consider” the estimated needs of the parties. By 

doing so, the statute thus authorizes a flexible, commonsense 

approach to this aspect of the factfinding exercise.

48 Va. App. at 484 n.10.
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factors. Considering the totality of the record, the circuit court did not abuse its discretion by 

awarding wife spousal support in the amount of $4,100 per month for ten years.

III. Indemnity Provisions

Husband argues that the circuit court erred in determining a value for the indemnity 

provisions in the retirement order without hearing evidence regarding the value of such provisions. 

He contends that the circuit court valued the indemnity clause at $120,000 because it increased 

wife’s monthly spousal support by $1,000 for ten years. Husband asserts that without any evidence 

that valuation was “too speculative” because of the uncertainty of whether husband’s retirement 

benefit would change. Husband conflates the new award of spousal support with a new valuation of 

the retirement pay. While the circuit court may have valued a marital asset—i.e., considering wife’s 

“contingent nature” in husband’s retirement pay to be less valuable—husband has not proven that 

the circuit court abused its discretion in valuing that asset. It did not set a specific value on the 

contingent nature of the retirement pay, instead it considered the uncertainty of the retirement funds 

when deliberating the statutory factors that establish the spousal support award. 

As previously stated, when awarding spousal support, a circuit court must consider, inter 

alia, the parties’ financial resources (e.g., retirement income), property interests (i.e., real, personal, 

tangible, and intangible), and equitable distributions of marital property. See Code 

§ 20-107.1(E)(1), (7), (8). Despite husband’s claims,10 the record does not show that the circuit 

court abused its discretion in valuing this asset.

11

 Rather, when determining the spousal support 

10 Husband cites this Court’s opinion in Gologanoff v. Gologanoff, 6 Va. App. 340, 349

(1988), to support his claim that the circuit court needed sufficient evidence to value the stricken 

retirement order provisions. However, the husband’s cited authority speaks to Code § 20-107.3 

(dealing with equitable distribution of marital property)—not Code § 20-107.1 (dealing with 

spousal support). See Gologanoff, 6 Va. App. at 349-50.

11 Again, as illustrated by footnote 8, prior to this Court’s remand, wife’s interest in this 

asset reasonably could have been worth more than $240,000. However, based upon the circuit 
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award, the circuit court considered wife’s changed interest in husband’s military retirement pay. 

And since the circuit court properly considered this changed interest alongside the other statutory 

factors, it did not abuse its discretion with its spousal support order.

IV. Appellate Attorney Fees

Wife requests an award of attorney fees and costs incurred on appeal. “This Court has 

discretion to grant or deny attorney’s fees incurred on appeal.” Stark v. Dinarany, 73 Va. App. 

733, 757 (2021). “In making such a determination, the Court considers all the equities of the 

case.” Id.; see also Rule 5A:30(b). On consideration of the record before us, we deny wife’s 

request for an award of appellate attorney fees and costs.

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is affirmed.

Affirmed.

court’s recalculation, wife’s interest in this asset cannot possibly exceed $120,000. Based upon 

husband’s arguments and cited authority, we cannot say the circuit court abused its discretion.