COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

PETER W. PANTAZES 

 MEMORANDUM OPINION* BY 

v. Record No. 0129-00-4 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 5, 2000 

PATRICIA K. DREW PANTAZES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Chanda L. Kinsey (Kinsey, Lynch & Filipour, 

on briefs), for appellant. 

 Michael A. Ward (Gannon, Cottrell & Ward, 

P.C., on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Peter W. Pantazes appeals the final decree of divorce in 

which the trial judge awarded spousal support to his wife, 

Patricia K. Drew Pantazes, and distributed the couple's marital 

property. He presents five issues for review. We affirm the 

trial judge's ruling on all issues. 

 I. 

The evidence proved that the parties were married in 1981, 

that the husband attempted but failed to start a business between 

1981 and 1984, and that he returned to work in 1986. He then held 

various jobs until 1991 when he began employment with the 

Department of Housing and Urban Development, where he still works. 
The wife was employed at the Small Business Administration before 

the marriage. During the marriage, she was employed in various 

positions until 1989 when she became disabled. In 1992, she began 

receiving disability checks. 

The parties purchased a condominium in 1987. The husband 

testified that after he moved away in March 1994, he continued to 

make payments on the condominium in the amount of $1,000 a month 

until November 1997. He ceased making payments on the marital 

home after the wife inherited a substantial sum from her mother. 

In the final decree, the trial judge ordered, inter alia, 

that the wife would receive 60% of the jointly owned 

condominium, that she would have the right to purchase the 

husband's share of the condominium, and that the husband should 

immediately transfer 50% of his interest in the Thrift Savings 

Plan to the wife. The judge also ordered that the wife would 

receive $1,000 a month in spousal support and that the husband 

must pay $15,000 of the wife's attorney's fees. 

 II. 

 The husband argues that the trial judge erred in allowing the 

wife to amend her cross-bill of complaint on the day of trial to 

include a request for spousal support and in awarding spousal 

support even though the wife never filed an amended pleading. 

 The record establishes that the husband filed a bill of 

complaint on November 12, 1997, seeking a divorce a vinculo 

matrimonii. The wife filed an answer and a cross-bill of 

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complaint. Although both parties asked for a distribution of the 

marital property in their pleadings, neither requested spousal 

support. In January 1999, the wife filed a motion for spousal 

support pendente lite and a notice of hearing. The husband 

testified that he began paying spousal support of $375 per month 

in April 1999 following the pendente lite hearing. Several months 

later, the wife filed a notice to set a hearing on all the issues 

in the case, including "spousal support." The parties then agreed 

to a trial date on those issues. 

 Prior to the taking of evidence at trial, the husband sought 

sanctions for the wife's failure to provide discovery and moved to 

bar evidence regarding spousal support because the pleadings did 

not request spousal support. Arguing that pendente lite support 

had been awarded and that the parties had engaged in discovery 

concerning spousal support, the wife orally moved "to amend [the] 

pleadings to make a request for permanent spousal support." The 

wife indicated she would not oppose a continuance if the husband 

required additional preparation as a result of her motion. 

 The trial judge found that the husband "can[not] claim 

surprise that support is an issue when there has been the amount 

of discovery in this case, and . . . unobjected to pendente lite 

[support]." He granted the oral motion to amend the pleadings and 

also ruled, however, that the wife was precluded from asserting 

that she received from her mother's estate less than $228,348, 

which was the amount represented by husband's counsel. 

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 We have previously held that a court may not award support 

without a request in the pleadings. Boyd v. Boyd, 2 Va. App. 16, 

19, 340 S.E.2d 578, 580 (1986). "The office of pleadings is to 

give notice to the opposing party of the nature and character of 

the claim, without which the most rudimentary due process 

safeguards would be denied." Id. Whether to grant an amendment 

to pleadings, however, is a matter resting within the sound 

discretion of the trial judge. Kole v. City of Chesapeake, 247 

Va. 51, 57, 439 S.E.2d 405, 409 (1994). Furthermore, Rule 1:8 

provides that "[l]eave to amend shall be liberally granted in 

furtherance of the ends of justice." 

 The record supports the trial judge's rulings that the 

husband had notice that spousal support would be an issue and 

that the husband was not prejudiced by allowing this amendment. 

The record establishes the parties exchanged information 

regarding income and expenses, and it supports the trial judge's 

ruling that the discovery was sufficient to allow the husband to 

contest the spousal support issue. Furthermore, the husband 

made no showing at the hearing that he needed additional 

discovery. When the wife offered to agree to a continuance, the 

husband did not assert that he needed more discovery. 

Accordingly, we hold that the trial judge did not abuse his 

discretion in allowing the wife to amend her pleading on the day 

of trial. 

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Furthermore, the absence of a written amended pleading does 

not void the final decree. If the office of the pleading is to 

provide notice, then the husband received sufficient notice of 

the spousal support issue through the correspondence with the 

wife's counsel and the notice to set a hearing date for spousal 

support issues. The holding in Boyd does not affect our ruling 

on this issue because in that case no party ever gave notice of 

a request for spousal support in any form. Here, the wife gave 

notice of her intent to request support. 

 III. 

 The husband argues that the trial judge abused his discretion 

in his evidentiary findings and, consequently, in ordering 

equitable distribution of marital property and spousal support in 

accordance with the factors listed in Code §§ 20-107.1 and 

20-107.3. 

 When a judge makes findings in a divorce proceeding in which 

the parties present evidence ore tenus, those findings "are 

entitled to the weight of a jury verdict and will not be disturbed 

unless they are plainly wrong or without evidence to support 

them." Lapidus v. Lapidus, 226 Va. App. 575, 580, 311 S.E.2d 786, 

789 (1984). This principle applies particularly where the 

credibility of witnesses is crucial to the determination of facts 

and the trial judge makes findings based upon an evaluation of the 

testimony of those witnesses. Gottlieb v. Gottlieb, 19 Va. App. 

77, 83, 448 S.E.2d 666, 670 (1994). In the present case, the 

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judge stated that "the credibility of witnesses is key to the 

court's decision," and he found that "[the husband] was – to put 

it mildly – not a credible witness." 

The husband argues nevertheless that the trial judge erred in 

determining his contributions to the marriage, monetary and 

non-monetary, as required by Code §§ 20-107.1(E)(6) and 

20-107.3(E)(1). The husband emphasizes his employment history, in 

particular. The trial judge found, however, that "[t]he evidence 

was very clear that [the husband], in essence, was unemployed from 

the time of the marriage until 1991. . . . [I]t wasn't until 1991 

that he went to work for the federal government at a significant 

wage." The husband claims that such conclusions ignore the fact 

that he returned to work in 1986 and that he supported his wife 

after her disability. 

Because the husband acknowledges that he was essentially 

unemployed for the first five years of the marriage and because of 

the limited salary of his employment before working for the 

federal agency, the judge found that the husband's pre-1991 

employment was "marginal." Furthermore, the judge relied on other 

evidence of contributions, such as the wife's steady employment 

history until the time of her disability and her receipt of 

disability payments after that time. For these reasons, we cannot 

say that the judge erred in finding that the contributions factors 

favored the wife. 

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In determining the "standard of living established during the 

marriage," see Code § 20-107.1(E)(2), the trial judge found that 

the parties had maintained a high standard of living and "ran in 

. . . high political circles." The husband argues that the wife's 

political appointment preceded the marriage and that the only 

evidence on the issue indicated that their lifestyle was "modest." 

This characterization, however, came from the husband's testimony, 

which the trial judge found not to be credible. Furthermore, 

other testimony supports the trial judge's finding that the 

standard of living was "above normal" and provides other examples 

of the couple's social and volunteer activities. Therefore, the 

judge's rulings were not plainly wrong or without evidence to 

support them. 

The husband also argues that the trial judge impermissibly 

ignored evidence that the wife had inherited income of $228,348 

invested at a 10.4% interest rate and, therefore, the judge erred 

when he determined the obligations, needs and financial resources 

of the parties and their property interests, in accordance with 

Code § 20-107.1. The husband claims that the judge's actions 

constitute impermissible refusal to consider all the factors. 

Before trial, the judge sanctioned the wife for refusing to 

respond to discovery requests and ruled that the wife could not 

present evidence that she had received less than $228,348 from her 

mother's estate. Precluding the wife from presenting evidence on 

this issue did not bind the judge to find the husband's evidence 

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credible. For instance, the husband's evidence that the wife had 

$228,348 included bank statements that were several years old; one 

was from January 1984. Thus, there was not "sufficient evidence" 

for the judge "to classify or evaluate marital or separate 

property," and the trial judge was free to ignore this evidence. 

Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987). 

The husband also argues that the judge should not have found 

him to be less credible than the wife. On brief and at oral 

argument the husband speculated that the trial judge was affected 

more by the impeachment of the husband than of the wife because 

his impeachment occurred on the witness stand and hers occurred in 

documents submitted to the court. We will not presume the trial 

judge decided the issues in this case in this manner. The trial 

judge has the discretion to believe or disbelieve evidence as long 

as his findings have a credible basis. 

The husband makes similar arguments regarding the tax 

consequences of the property distribution, the age of the parties, 

the date of acquisition of the condominium, the wife's income and 

expenses, and the debts of the parties at the time of separation. 

We find that the trial judge corrected any significant errors that 

he made prior to issuing the final decree, that any remaining 

errors were harmless, and that the trial judge correctly made 

rulings based upon the credibility of the parties. See McDavid v. 

McDavid, 19 Va. App. 406, 413, 451 S.E.2d 713, 718 (1994). 

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 IV. 

 The husband next contends that the trial judge erred in 

ignoring the parties' stipulation that the wife shall receive a 

50% share of his Thrift Savings Plan, "if as and when received." 

Instead, the trial judge ordered an immediate transfer of this 

asset. The husband argues that this ruling violates Code 

§ 20-109.1 (providing for the affirmation of separation agreements 

between parties) and Hart v. Hart, 27 Va. App. 46, 62, 497 S.E.2d 

496, 503-04 (1998) (holding that a trial judge may not enter a 

decree that is inconsistent with a valid agreement of the 

parties). The husband's argument is not persuasive. 

 During the husband's testimony acknowledging he had a savings 

plan, the following occurred: 

Q. All right, sir. Do you also participate 

in the Thrift Savings Plan? 

A. Yes, sir. 

Q. Have you participated in the Thrift 

Savings Plan since the beginning of your 

employment in 1991? 

A. Yes, sir. 

[Husband's Counsel]: Your Honor, just to 

let the court know, my client will not 

object to [the wife] receiving 50 percent of 

the marital share of those plans. 

THE COURT: All right. 

[Wife's Counsel]: If as of and when he 

receives it? 

[Husband's Counsel]: If as of and when he 

receives it. 

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 Although the parties said they would split evenly this 

interest "if as . . . and when . . . receive[d]," no evidence 

proved this asset was anything other than one immediately 

available to the husband. The trial judge stated that the intent 

of this agreement was "to do a normal marital share split." Thus, 

he ruled that the interest in the plan "is going to be transferred 

right now, that is what you do with thrift savings plans. . . . 

[T]here is no if, as, and when as to a thrift savings plan." 

 The judge did not violate either the law or the stipulation 

of the parties. The trial judge simply ruled concerning when the 

moneys were available to the husband. The judge found that the 

intent of the parties was to transfer the interest when it was 

available. No evidence proved the funds were not immediately 

available to the husband without discount. Thus, the trial judge 

ruled in his discretion that the husband should receive and 

transfer the interest immediately. 

 V. 

The husband contends the trial judge should have ordered 

the wife to re-finance the condominium mortgage to diminish her 

need for spousal support. He argues that the judge's refusal to 

do so, coupled with the decision to allow the wife to purchase 

the husband's share of the condominium, was an abuse of 

discretion. We disagree. 

In Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635 

(1992), we found an abuse of discretion when the trial judge 

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linked the distribution of property under Code § 20-107.3 

directly to the award of spousal support under Code § 20-107.1. 

We ruled that the trial judge erred when he "fashioned" a 

spousal support award "primarily for [the] purpose" of providing 

"the financial means by which [the wife] could satisfy the 

monthly mortgage obligations on the marital property she sought 

and received under the provisions of Code § 20-107.3." 14 Va. 

App. at 576, 421 S.E.2d at 646. We noted that maintaining an 

appropriate separation "prevents a 'double dip' by a spouse who 

seeks and receives encumbered property under Code § 20-107.3 and 

also seeks and receives spousal support under Code § 20-107.1." 

14 Va. App. at 577, 421 S.E.2d at 646-47. 

 In this case, although the trial judge ordered the spousal 

support award at the same hearing at which he ordered the 

parties to sell the home, he did not link the two. Responding 

to the wife's request, he later amended that ruling to allow the 

wife to retain the home and purchase the husband's share. Thus, 

the order of spousal support preceded the wife's purchase of the 

home. These facts distinguish this case from Gamble. We can 

determine no impermissible connection between the spousal 

support award in this case and the mortgage payments. Although 

a reduction in the wife's mortgage payment might bear upon the 

wife's expenses, and, thus, be a factor in her need for spousal 

support, we cannot say the trial judge abused his discretion in 

refusing to order the refinancing of the existing mortgage. 

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 VI. 

The husband contends that the trial judge abused his 

discretion in ordering him to pay the wife's attorney's fees. 

The husband argues that the wife's recalcitrance in responding 

to discovery requests and in answering questions at her 

deposition added significantly to the legal bills she 

accumulated. He also argues that her financial resources exceed 

his. 

An award of attorney's fees in a divorce case is a matter 

within the sound discretion of the trial judge, and we will not 

disturb such a decision absent an abuse of discretion. Broom v. 

Broom, 15 Va. App. 497, 502, 425 S.E.2d 90, 93 (1992). If a 

"'wife needs and is entitled to maintenance and support and the 

husband has the financial ability to meet those needs,'" then 

the trial judge has the authority to award attorney's fees to 

the wife. Poliquin v. Poliquin, 12 Va. App. 676, 681, 406 

S.E.2d 401, 405 (1991) (quoting Thomas v. Thomas, 217 Va. 502, 

505, 229 S.E.2d 887, 890 (1976)). 

The trial judge found that the wife's income was 

substantially less than the husband's because of her disability. 

In arguing that the wife's resources surpass his own and, 

therefore, she should pay her own attorney's fees, the husband 

is merely asking us to revisit the substantive issues in the 

case. The trial judge's findings were based on the evidence in 

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the case. Thus, we find no abuse of discretion in the award of 

attorney's fees to the wife. 

For these reasons, we affirm the judgment. 

 Affirmed. 

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