COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatr ick, Judges Benton and Annunziata Argued at Alex andria, Virginia

PETER W. PANTAZES MEMORANDUM OPINION * BY v. Record No. 0129-00-4 JU DGE JAMES W. BENTON, JR. DECEMBER 5, 2000 PATRICIA K. DREW PANTAZES

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY M. Langhorne Keith, Judge Chanda L. Kinsey (K insey, Lynch & Filipour, on briefs), for appellant. Michael A. Ward (Gan non, 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 fi nal decree of divorce in which the trial judge awarded sp ousal support to his wife, Patricia K. Drew Pant azes, and distri buted the coup le's marital property. He pr esents 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 attemp ted but failed to start a busi ness between 1981 and 1984, and that he returned to work in 1986. He then held various jobs until 19 91 when he began em ployment with the Department of Hous ing and Urban Deve lopment, where he still works.The wife was employed at the Small Bu siness Administration before the marriage. During the marriage, sh e was employed in various positions until 19 89 when she became disabl ed. In 1992 , she began receiving disabi lity checks. The parties purchased a condomin ium in 1987. The husband testified that after he moved away in March 1994, he continued to make payments on the condominium in the amou nt of $1,000 a month until November 1997. He ceased making paym ents on th e marital home after the wife in herited a substa ntial 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 he r cross-bill of complaint on the day of trial to include a reques t for spousal su pport and in aw arding spousal support even though the wife never filed an amended pleading. The record establis hes that the husban d filed a bill of complaint on November 12 , 1997, seekin g a divorce a vinculo matrimonii . The wife filed an answ er and a cros s-bill of

- 2 -complaint. Although both partie s asked for a dist ribution of the marital proper ty in their plea dings, neither re quested spousal support. In January 1999, the wife filed a motion for spousal support pendente lite and a notice of he aring. Th e husband testified that he began paying spousal support of $375 per month in April 1999 following the pendente lite hearing. Se veral months later, the wife filed a notice to se t a hearing on all the issues in the case, incl uding "spousal support." The parties th en 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 provid e discovery and moved to bar evidence regardin g spousal suppor t because the pleadings did not request spou sal support. Arguing that pendente lite support had been awarded and that the parties had engaged in discovery concerning spousal supp ort, the wife orally moved "to am end [the] pleadings to make a re quest for perman ent spousal su pport." The wife indicated she woul d not oppose a contin uance if the husband required additional preparation as a resu lt of her motion. The trial judge fo und that the husban d "can[not] claim surprise that su pport is an issu e 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 prec luded from asserting that she received from her mother's estate less than $228,348, which was the amount represented by husband' s counsel.
- 3 -We have previously held that a court may not awar d support without a requ est 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 op posing party of the na ture and character of the claim, without which the most rudi mentary 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.

- 4 -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 fi ndings and, conseque ntly, in ordering equitable dist ribution of marita l property and sp ousal support in accordance with the factors listed in Code §§ 20-107.1 and 20-107.3. When a judge makes fi ndings in a di vorce proceedi ng in which the parties pres ent evidence ore tenus , those find ings "are entitled to the we ight of a jury verdict an d will not be disturbed unless they are plainly wrong or without evidence to support them." Lapidus v. Lapidus , 226 Va. App. 575, 58 0, 311 S.E.2d 786, 789 (1984). This pr inciple applie s particularly where the credibility of witnesse s is crucial to the de termination of facts and the trial judg e makes findings based upon an ev aluation of the testimony of thos e witnesses. Gottlieb v. Gottlieb , 19 Va. App. 77, 83, 448 S.E.2d 666, 670 (1994). In the presen t case, the

- 5 -judge stated that "the credibilit y of witnesses is key to the court's decisi on," and he found that "[the husban d] was – to put it mildly – not a cr edible witness." The husband argues nevertheless that th e trial judg e 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 emphas izes his employme nt 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 ma rriage until 1991. . . . [I]t wasn't until 1991 that he went to work for the fe deral govern ment at a significant wage." The husb and claims that such conclusions ignore the fact that he returned to work in 1986 and that he supporte d his wife after her di sability. Because the husb and acknowledges that he wa s essentially unemployed for the firs t five years of the ma rriage and because of the limited sala ry of his empl oyment before working for the federal agency, the judge found that the husban d's pre-1991 employment was "margina l." Furthermore, the judge relied on other evidence of cont ributions, such as the wi fe's steady employment history until th e time of her disability and her receipt of disability payments afte r that time. For thes e reasons, we cannot say that the judge erre d in finding that the contribution s factors favored th e wife.

- 6 -In determining the "s tandard of living es tablished du ring the marriage," see Code § 20-107.1 (E)(2), the trial judge found that the parties had ma intained a high standard of livi ng and "ran in . . . high political ci rcles." The husband ar gues that the wife's political appointment preced ed the marriage an d that the only evidence on the issue indicated th at their lifestyl e was "modest." This characteriza tion, however, ca me from the husb and's testimony, which the trial ju dge found not to be credible. Furthermore, other testimony supports the trial judg e's finding that the standard of livi ng was "above normal" and provides other examples of the couple's social and volunteer activities. Th erefore, the judge's rulings we re not plainly wrong or without ev idence to support them. The husband also argues that the tria l judge impe rmissibly ignored eviden ce that the wife had inhe rited income of $228,348 invested at a 10 .4% interest rate and, therefore, the judge erred when he determin ed the obligation s, needs and financial resources of the parties and thei r property interests, in accordance with Code § 20-107.1. Th e husband claims that the ju dge's actions constitute impermissibl e refusal to consider all the fact ors. Before trial, the ju dge sanctioned the wi fe for refusing to respond to discovery re quests and ruled that the wife could not present evidence that she had rece ived less than $2 28,348 from her mother's estate. Preclu ding the wife from pr esenting evidence on this issue did not bind the judge to find th e husband's evidence

- 7 -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 "t o classify or evaluate marita l or separate property," and the tria l judge was free to ignore th is evidence.

Bowers v. Bowers , 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987). The husband also argues that th e judge should not have found him to be less credib le than the wife. On brief and at oral argument the husband sp eculated that the trial judge was affected more by the impe achment of the husband th an of the wife because his impeachment oc curred on the wi tness stand and he rs occurred in documents subm itted to the court. We will not pres ume the trial judge decided the issues in this case in this ma nner. The trial judge has the di scretion to believ e or disbelieve ev idence as long as his findings have a credible basis. The husband makes similar arguments regard ing the tax consequences of the property distribution, the age of the parties, the date of acqu isition of the condominium, the wife's income and expenses, and the debts of the parties at th e time of se paration. We find that the tria l judge corrected any significan t errors that he made prior to is suing the final decree, that any remaining errors were harmless , and that the trial judge correc tly 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).

- 8 -IV. The husband ne xt contends that the trial judge erred in ignoring the parties' stipulation that the wife sh all receive a 50% share of his Thrift Savings Plan, "if as and when received." Instead, the trial judg e ordered an immediat e transfer of this asset. The husb and argues that this ruling violates Code § 20-109.1 (providing for the affirmat ion of separati on agreements between part ies) and Hart v. Hart , 27 Va. App. 46 , 62, 497 S.E.2d 496, 503-04 (1998) (h olding that a trial judge may no t enter a decree that is inco nsistent with a valid agreement of the parties). The husband's ar gument is no t persuasive. During the husband' s testimony ackn owledging he had a savings plan, the follow ing 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.

- 9 -Although the parties said they would split evenly this interest "if as . . . and when . . . receiv e[d]," no evidence proved this asset wa s anything other th an one immediately available to the husban d. The trial judge stated th at the intent of this agreemen t was "to do a normal mari tal share spli t." Thus, he ruled that the intere st in the plan "is go ing 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 vi olate either the law or the stipulation of the parties. The trial judge simply ruled conc erning when the moneys were avai lable to the husband. The judge foun d that the intent of the pa rties was to transfer th e interest when it was available. No eviden ce proved the funds were not immediately available to the husban d without discou nt. Thus, th e trial judge ruled in his discretion that the husband shou ld receive and transfer the inte rest 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

- 10 -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.

- 11 -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

- 12 -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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