COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Be ales and Senior Judge Fitzpatrick

TIMOTHY G. BROOKER MEMORANDUM OPINION * v. Record No. 2445-06-1 PER CURIAM JULY 10, 2007 JUDI E. BROOKER

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge (Kevin P. Shea; Ch arles E. Haden, on brief), for appellant. (Joseph W. Hood, Jr.; Shannon Dee Lemm, on brief), for appellee.
Timothy G. Brooker, husband, appeals from the trial court’s final decree granting Judi E. Brooker, wife, a divorce. On appeal, husband c ontends the trial court e rred by: (1) considering evidence of an alle ged affair that was irrele vant to the equitable dist ribution and spousal support awards; (2) employing the equitable distribution statute to puni sh him economical ly; (3) granting wife a spousal support award of $1,000 per month; and (4 ) ordering him to pa y wife’s attorney’s fees. In addition, wife moves for an award of attorney’s fees and costs incurred on this appeal. Upon reviewing the record and briefs, we conclude th at this appeal is without merit. Accordingly, we summarily affirm the decisi on of the trial court. See Rule 5A:27. We rema nd for the trial court to enter an award of appellate attorney’s fe es and costs to wife. Background “On appeal, we construe the evidence in the light most favo rable to wife, the prevailing party below, granting to her evidence all reasonable inferences fairly deducible therefrom.” Donnell

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - v. Donnell , 20 Va. App. 37, 39, 45 5 S.E.2d 256, 257 (1995) (citing McGuire v. McGuire , 10 Va. App. 248, 250, 391 S. E.2d 344, 346 (1990)). The parties married in 1982 and separated in 2003. They had five childr en during the marriage, one of whom wa s a minor at the time of the entr y of the final decree of divorce. The trial court held a hearing on spousal support and equitable distribution issues on June 15, 2006. The parties pr esented evidence showing that, during the last ten years of the marriage, their relationship began to decline. Wife had work ed and provided monetary support for the family until 1998. Wife be gan to experience depression and anxiet y and was hospitalized for the treatment of depression on several occasion s. Wife testified that husband’ s controlling conduct toward her and his repeated threats to take the children away from her contributed to her emotional issues. She also stated that husban d was controlling the family’s finances and she suspected hu sband of having an affair in 1991. Wife’s psyc hotherapist testified that wife su ffered psychological abuse from husband. A vocational counselor testifie d that wife was currently “not ready” for employment based upon her emotional and psychological issues. Wife’s psychotherapist also testified that wife could not enter the work force “i n the immediate future.” At the time of the hear ing, husband was paying wife $150 per month in pendente lite spousal support and sh e was receiving $875 per mo nth in social security di sability benefits. During the separation, wife received $25,00 0 from husband for her interest in the former marital home. She testified she had spent most of that money on living expenses, re payment of loans, and a used car, and she had $2,000 of that money remaining. At some point after the sepa ration, wife received a lump sum social security award, but she could not recall the amount of that award. Wife testified she found it difficult to live on $1,025 per month and she requested spousal support in part so that- 3 - she could move from a small one-bedroom apartment to a tw o-bedroom apartment and have overnight visitation with her son. Husband worked during the marriage, and he completed a nursing degree in 1998. At the time of the hearing, he earned about $5,100 per m onth. He testified he has $1,550 in outstanding medical bills, and he rece ives $241 per month from wife’s social security disability payment for their son. Husband owns two boats and makes a mo nthly payment for one of them. In addition, he pays monthly boat slip rental fees for each boat. Husband testified he was suppor tive of wife during her struggles with emotional matters. In its final decree of divorce entered on Augu st 25, 2006, the trial court stated “it is absolutely certain that [husband]’s actions over th e past ten years or more have exacerbated [wife’s emotional] problems.” The court al so found that husband had “taken advantage of [wife]’s fragile condition to his financial and eco nomic advantage.” Th e trial court ordered husband to pay wife monthly spousal support of $1,0 00. The court also awarded hus band the two boats and wife a dining room table, yet further decreed that, with exception of those awards, “the parties are hereby denied equitable distribution.” The trial court orde red husband to pay wife’s attorney’s fees in the amount of $7,174. Analysis
I. Husband argues the trial court improperly co nsidered evidence of an alleged affair in making the equitable distribution and spousal support awards. Code §§ 20-107.1(E) and 20-107 .3(E)(5) require a trial court to consider “the circumstances and factors which contributed to the dissolutio n of the marriage” in determining equitable distribution and spou sal support. See also Cousins v. Cousins , 5 Va. App. 156, 15 8-59, 360 S.E.2d- 4 - 882, 884 (1987) (finding trial court properly considered eviden ce of husband’s adultery when making an award, even though divorce was not aw arded on those grounds). As part of her explanation as to why the marriage began to unravel, wife testified she only suspected “something wa s going on” when her hu sband studied with an unmarried woman during nursing school. Pursuant to Code §§ 20-107.1(E) and 20 -107.3(E)(5), the trial court did not err in admitting this evidence and considering it when making the equitable distribution and spousal support awards.
II. Husband contends the trial co urt improperly used the equitable distribution statute to “punish” him economically. Th e trial court awarded husband th e two boats and awarded wife a dining room table. The court specifically declined to make any further equita ble distribution award. Nothing in the trial court’s rulings indicates an inte nt to punish husband. Fu rthermore, “[a] decision regarding equitable distribution . . . will not be reversed unless it is plainly wr ong or without evidence to support it.” Rahbaran v. Rahbaran , 26 Va. App. 195, 205, 494 S.E.2d 135, 139 (1997). On this record, we cannot say the trial court abused its discretion.
III. Husband argues the trial court erred by awardi ng wife $1,000 per mont h in spousal support. “In awarding spousal s upport, the [trial court] must cons ider the relative needs and abilities of the parties. [The trial court] is guided by the . . . factors that are set forth in Code § 20-107.1.” Joynes v. Payne , 36 Va. App. 401, 419, 551 S.E.2d 10, 19 (20 01). “‘In fixing the amount of the spousal support award, . . . the cour t’s ruling will not be disturbed on appeal unless there has been a clear abuse of discretion. We will reverse the trial court only when its decision is plainly wrong or without evidence to support it.’” Moreno v. Moreno , 24 Va. App. 19 0, 194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble , 14 Va. App. 558, 574, 42 1 S.E.2d 635, 644 (1992)).- 5 - “The amount of temporary support is not a f actor under Code § 20-1 07.1 that the [trial court] must consider when determining the appropr iate amount of spousal support.” Holmes v. Holmes , 7 Va. App. 472, 484, 375 S.E.2d 387, 394 (1988). Furthermore, as stated above, the trial court may consider the circumstances and factor s which contributed to the dissolution of the marriage when awarding spousa l support. Code § 20-107.1(E). Based on the evidence presented, the trial cour t found that wife has “a dire need for spousal support” and husband has “an abilit y to pay it.” Indeed , the evidence showed husband’s monthly income is more than $5,000, whereas wife’s monthly in come is $875, without the pendente lite support. In addition, evidence was presented that wife is unable to resume employment at this time and that husband’s conduct during the marriage c ontributed to wife’s emotional and financial challenges and the dissolution of the marriage . Thus, the evidence established a foundation supporting the trial court’s award of spousal support, and the trial court did not abuse its discretion in making the award.
IV. Husband argues the trial court erred by awar ding wife attorney’s fees. An award of attorney’s fees is a matte r within the sound discretion of the tr ial court and is reviewable on appeal only for an abuse of discretion. See Graves v. Graves , 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). “The key to a proper awar d of counsel fees is reasonablene ss under all the circumstances.” Joynes , 36 Va. App. at 429, 551 S.E.2d at 24. Upon review of this record, we cannot say that the trial court abused its discretion in awarding wife attorney’s fees.
V. Finally, wife has moved for an award of atto rney’s fees and costs incurred during this appeal. Upon a review of the record in its entiret y, we find an award is appropriate and grant the- 6 - request for her attorney’s fees and costs. We remand the case to the trial court to fix a reasonable award. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98 , 100 (1996). Accordingly, we affirm but rema nd for an award to wife of attorney’s fees and costs on appeal. Affirmed and remanded.