COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Cl ements and Beales Argued at Richmond, Virginia

EDWARD JEROME BULLANO MEMORANDUM OPINION * BY v. Record No. 0577-06-2 CHIEF J UDGE WALTER S. FELTON, JR. JANUARY 30, 2007 RENEE ZEIGLER BULLANO

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge Brian H. Jones (The Barnes La w Firm, on brief), for appellant. Ronald S. Evans (Brenner, Evans, & Millman, P.C., on brief), for appellee.

On appeal of a final decree of divorce, Edwa rd Jerome Bullano (“husband”) contends that the trial court erred in awarding spousal support a nd attorney’s fees and costs to Renee Zeigler Bullano (“wife”). Husband also contends the trial court erred in ad mitting testimony of Dr. Janice McMillan, the parties’ marriage counselor , regarding statements made by him during the counseling sessions, and in permitting her to expre ss an expert opinion that wife suffered from depression. Husband also assert s that the trial court erred in awarding wife $1,000 per month in permanent spousal support, in awarding her $36, 061.33 in attorney’s fees and costs, and in failing to award to him attorney’s fees and costs. Each party requests a ttorney’s fees and costs on appeal. For the following reasons, we affirm the judgment of the trial court, and decline to award attorney’s fees on appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND On appeal, we view the evidence in the light most favorable to wife, the prevailing party below. Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed,

the record reflects that husband a nd wife were married in March 1974, 1 separated in 2004 after thirty years of marriage, and divorced in February 2006. Husband was employed as an engineer for the first eleven years of the marriage before switching careers to insuran ce sales, later forming the Ed Bullano Agency in 1995. 2 During the course of the agency’s existence, husband worked as an independent agent and as an agent for the John Hancock Company. His income in insurance was commission-based and varied annually. In July 2004, following the institut ion of divorce proceedings, husband became

affiliated with Allstate Financial as an in surance agent, requiring him to terminate his independent agency. The trial court determined that, for purposes of spousal support, husband’s annual income was $65,000 based on a recent resi dential loan application he completed. Wife worked throughout her career as an educator. 3 For purposes of calculating spousal support, the trial court determined wife’s annual income to be $53,000. Dr. McMillan, a licensed marriage and family counselor, initially began counseling one of the parties’ daughters in November 2003. In January 2004, she began to counsel both parties in their marriage. Eventually, she provided coun seling to wife alone. Both parties considered her services to be marriage counseling.

1 Three children, each of whom are over the age of eighteen and emancipated, were born of the marriage.

2 Husband obtained a B.A. degree in Industria l Engineering and a Ma ster’s in Business Administration.

3 Wife obtained both a B.S. and Ma ster’s degree in Education.- 3 - Wife filed a bill of complaint seeking divor ce in April 2004. Husband filed a cross-bill for divorce in May 2004. In July 2004, following ne gotiation as to the di vision of the marital residence, the parties entered into a written agre ement providing for wife to retain the residence, assume payment of the mortgage, and pay hus band $92,500 for his share of the equity in the home. The agreement reserved “all other clai ms, rights and obligations growing out of the marital relationship for future consideration unde r Equitable Distribution. ” Husband agreed to leave the residence by September 1, 2004. After th e parties negotiated th eir interests in the marital residence, and one week prior to hus band’s signing the agreement, husband withdrew $54,000 from the parties’ joint hom e equity line of credit, secu red by the residence, without wife’s knowledge or consent. 4 In August 2004, the trial court ratified and affirmed the parties’ written agreement as to the marital residence, ordered husband to repay the money he withdrew on the equity line, and enjoined the parties from waste or dissipation of marital assets pending resolution of remaining equ itable distribution issues. In July 2005, the parties ente red into a written joint agre ement resolving most of the remaining issues related to equitable distribution. They proceeded to trial 5 to resolve the remaining issues: 1) the value and equitable di stribution of the Ed Bu llano Agency; 2) wife’s claim of a separate interest in the marital hom e resulting from separate gifts from her parents 6 ;

4 Husband made twenty-sev en withdrawals of $2,000 (totaling $54,000) on the same day from the equity line.

5 The trial court received the par ties’ evidence at trial by way of de bene esse depositions of four witnesses, and the ore tenus testimony of both parties a nd their respective valuation experts.

6 Wife claimed that she received $30,000 from her parents as separate funds that she contributed towards the purchase of the ma rital residence and reducing the mortgage.- 4 - 3) ownership of an I NG life insurance policy 7 ; 4) wife’s claim fo r spousal support and maintenance; and 5) the claim of each party for attorney’s fees and costs. In October 2005, the trial court issued its lett er opinion holding that at the time of the parties’ separation, the Ed Bullano Agency was no longer a going business concern and, therefore, had zero value for equitable distribution purposes. 8 It also held that, while $10,000 in gifts from wife’s parents could be traced as her separate propert y in the marital residence, the parties’ earlier written agreemen t disposing of the marital residence superseded and “trump[ed] any claim by [wife] as to the gifts from her pare nts being separate property.” It declined to award the ING life insurance policy to wife, requir ing that the parties re deem the policy for its cash surrender value and equally divide the proceeds. See Code § 20-107.3(G). It awarded wife $1,000 per month in permanent spousal support a nd $36,061.33 in attorney’s fees and costs, the full amount incurred by her in the divorce procee dings. It declined to award husband his attorney’s fees or costs. In November 2005, husband filed a motion for r econsideration of the trial court’s award of spousal support and attorney’s fees and cost s, and moved to terminate or reduce spousal support as a result of a substantia l rate increase on his adjustable rate mortgage. In February 2006, the trial court denied husband’s motions and affirmed its previous rulings, stating “[u]pon review, the Court is even more convinced that its ruling is corr ect and fair to both parties.” This appeal followed.

7 The policy provided $200,000 coverage on husband’s life, with a $100,000 rider on wife’s life. The policy’s cash surrender value was $3,680.

8 The court found the agency to be a “shell ” through which husband received payment of premium residuals from prior insurance sales.- 5 - I.

DR. McMILLAN’S TESTIMONY Husband contends that the trial court abused its discretion in admitting and considering the testimony of Dr. McMillan in determining whet her wife was entitled to an award of spousal support and attorney’s fees and co sts. He first argues that Dr . McMillan’s testimony contained statutorily privileged and confidential informati on he provided to her in the course of marriage counseling, inadmissible without his permissi on under Code § 8.01-400.2. He also argues that Dr. McMillan’s testimony was inadmissible hearsay and that she was not qualified to render an opinion as to wife’s depression. A. Admissibility Under Code § 8.01-400.2 Code § 8.01-400.2 provides, in pertinent part, that: [e]xcept at the request of or with the consent of the client, no licensed professional counselor . . . or licensed marriage and family therapist . . . shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confiden tial manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge his professional or oc cupational services . . . provided, however, that when the physical or mental condition of the client is at issue in such action, or when a court, in the exercise of sound discretion, deems such disclosu re necessary to the proper administration of justice, no fact communicated to, or otherwise learned by, such practitioner in connection with such counseling, treatment or advice shall be pr ivileged, and disclosure may be required.

Id. 9 At trial, Dr. McMillan testified, by deposition, that husband was physically and emotionally abusive to wife. She testified that during the counseling sessions, husband was “quick to temper if the discussions were things that were of a sens itive nature.” She noted that in

9 The General Assembly amended Code § 8.01-400.2, effective July 1, 2005, to specifically include “licensed ma rriage and family therapists, as defined in [Code] § 54.1-3500.”- 6 - almost every session husband was “angry and defens ive,” that he acknowledged “that he had hit his [teenage] daughter after an alte rcation[,] and that he felt . . . that was an okay thing to do.”

Dr. McMillan also testified that husband told he r he “needed to motivate himself to work more and to make more money” but was “unmotivated ” to do so. She testified that both parties “agreed that [husband] spent an aw ful lot of time on the golf course.” She also testified that wife told her that following a car acci dent, in which she and one of the parties’ daughters had been injured and taken away by ambulance, husband “showed absolutely no caring, no concern, didn’t even ask her if she was okay” and that as a result wife initially suffered fr om a “brief depressive disorder,” that later developed into a “major depressive disorder.” In denying husband’s motion to exclud e Dr. McMillan’s testimony under Code § 8.01-400.2, the trial court noted that Code §§ 20-107.1(E)(4) and 20-107.3(E)(4) expressly required it to consider “[t]he age and physic al and mental condition of the parties” in determining spousal support and in equitably distributing marital pr operty. It specifically noted in its letter opinion that husba nd “is in good physical and mental health,” while wife “suffers from a number of physical and mental ailments,” including “severe clinic al depression for which she takes [medication]” and neck problems.

We conclude that the trial court did not err in admitting Dr. McMillan’s testimony over husband’s objection that it contained privileged information obtained from him during the course of marriage counseling. The tria l court correctly determined that, because it was required to consider the physical and mental condition of th e parties in determining spousal support and equitable distribution under Code §§ 20-107.1 and 20-107.3, the exception to Code § 8.01-400.2 permitted the admissibility of otherwise priv ileged communications under Code § 8.01-400.2. The trial judge stated: “I don’t like the statute . . . I think it puts mental health professionals in- 7 - real dilemmas. And I think it pu ts parties who go see mental hea lth people in real dilemmas. But the statute [Code § 8.01-400.2] is what it is, and I have to interp ret it as it is read.” 10 B. Hearsay Objection As to husband’s hearsay objections to Dr. Mc Millan’s testimony, we note that he did not object to the trial court’s admitting, as wife’s sworn testimony, wife’s bill of complaint and

answer to husband’s cross-bill. These adm itted documents, without objection from husband, included the same hearsay evidence presented in Dr. McMillan’s deposition testimony at trial.

When wife testified under oath at tr ial, the following colloquy occurred: [WIFE’S COUNSEL]: Judge, I know you read the Bill of Complaint. But rather than goi ng in detail, what I was going to propose at this time was to introduc e the Bill of Complaint subject to cross-examination. THE COURT: Any objections? [HUSBAND’S COUNSEL]: No, sir. THE COURT: Motion granted. [WIFE’S COUNSEL]: Are the allegations in the Bill of Complaint accurate? [WIFE]: Yes, they are. [WIFE’S COUNSEL]: Specifically , and I’m going to ask on one issue --

10 The General Assembly was aware of th e provisions of Code §§ 20-107.1 and 20-107.3, requiring trial courts to consider the mental a nd physical condition of the parties in determining spousal support and equitable distribution, wh en it added “licensed marriage and family therapists” to Code § 8.01-400.2, effective July 1, 2005. See Jakabcin v. Town of Front Royal , 271 Va. 660, 667, 628 S.E.2d 319, 323 (2006) (“[t]he cour ts assume that a legislative body, in enacting new legislation, was aware of existing la ws”). “[T]wo statutes must be read in harmony . . . [because] of the rule that every le gislative enactment must be given full effect unless it is impossible to do so.” Natrella v. Board of Zoning Appeals , 231 Va. 451, 461, 345 S.E.2d 295, 302 (1986).- 8 - THE COURT: Let me make sure that we’re clear. The purposes of you introducing the Bill of Complaint for the statutory factor -- there are a lot of allegations in the Bill of Complaint. And I’m sure that counsel is not stipula ting to the truthfulness of those [statements]. [WIFE’S COUNSEL]: What I was asking is that that be submitted as [wife’s] testimony, subject to cross-examination, so she does not have to recite it all. THE COURT: Okay. [HUSBAND’S COUNSEL]: I don’t have any problem with that, Judge. THE COURT: So received. Subject to cross-examination.

* * * * * * * [WIFE’S COUNSEL]: I would also ask the Court, subject to cross-examination, to consider [wife’ s] answer to Cross Bill in lieu of testimony on those items that were stated in the answer to Cross Bill and signed under oath. THE COURT: Any objection? [HUSBAND’S COUNSEL]: No, sir.

THE COURT: So received. [WIFE’S COUNSEL]: And are th e statements made in your answer to Cross Bill accurate? WIFE: Yes, they are. (Emphasis added). At the conclusion of wife’s testimony, husba nd made no objection to the admissibility of the statements contained in her bill of complain t and answer to his cross-bill as her sworn testimony at trial. 11 Dr. McMillan’s testimony of husband’s statements to her, which husband

11 See Mullin v. Mullin , 45 Va. App. 289, 297 n.2, 610 S.E.2d 331, 335 n.2 (2005) (response of “subject to cross- examination” when evidence offered for admission is not equivalent to an objection to the admissibility of the evidence).- 9 - contends is objectionable hearsa y, was the same as that which came into evidence through wife’s testimony, including her sworn testimony in the pleadings. Even assuming, without deciding,

that the trial court erred in ad mitting Dr. McMillan’s testimony of husband’s statements to her as hearsay, that error at most would be harmless under these circumstances. See Williams v.

Commonwealth , 4 Va. App. 53, 78-79, 354 S.E.2d 79, 93-94 (1987) (errors that do not affect the outcome of a case do not provide a basis for overturning a trial court’s finding). C. Opinion Testimony Finally, we find husband’s assertion that Dr . McMillan was not qualified to give any opinion or diagnosis that wife su ffered from depression to be w ithout merit. The trial court could reasonably conclude that Dr. McMillan, as a licensed pr ofessional counselor and licensed marriage and family therapist, in practice for twenty-three years, was competent to render an opinion as to the diagnosis and treatment of de pression within the limits of her license and qualifications. See Wileman v. Commonwealth , 24 Va. App. 642, 647, 484 S.E.2d 621, 624 (1997) (“[w]hether a particular witn ess is qualified to tes tify as an expert is largely a matter in the discretion of the trial court, and its rulings allowing a witness to testify will not be disturbed unless it clearly appears that [the expert] was not qualified” (citations omitted)). Dr. McMillan’s unrefuted testimony was that her license permitte d her to “diagnose and provide diagnosis codes

for insurance reimbursement.” Husband thorou ghly cross-examined Dr. McMillan as to her qualifications and the basis of he r diagnosis that wife suffered fr om depression. The trial court was free to give such weight to her testimony and diagnosis as it chose. We find no error in the trial court’s admitting the testimony of Dr. McMill an that wife suffered from depression as a result of husband’s behavior towards her, and as a result of the deterior ating marriage of thirty

years.- 10 - On this record, we find no reversible e rror in the trial cour t’s admission of Dr. McMillan’s testimony.

II.

SPOUSAL SUPPORT

Husband contends that the trial court abused its discretion in aw arding wife permanent spousal support of $1,000 per month. He conte nds the trial court’s spousal support award violates the “double-dipping” prohib ition articulated in Gamble v. Gamble , 14 Va. App. 558, 421 S.E.2d 635 (1992), and argues that the amount awar ded was not justified under the factors of Code § 20-107.1. He also argues that wife did not request an award of that amount, that she

failed to demonstrate a need for that amount, and that he lacks th e financial ability or resources to pay that amount. A. “Double Dipping”

In Gamble , we held that: The outstanding obligations on marital property are properly considered when Code § 20- 107.3 [equitable distribution] determinations are made and the marital wealth is equitably distributed. The same ob ligations are not to be factored again into the Code § 20-107.1 [spousal support] determination. In short, the appropriate separation between cons iderations of spousal support and considerations of an equitabl e distribution of marital wealth prevents a “double dip” by a s pouse who seeks and receives encumbered marital 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.

Husband contends that the trial court’s award of spousal support of $1,000 a month provided wife with a means of paying expenses re lated to debt allocated to her as part of equitable distribution, to wit, pa yment to husband of his $92,500 equ ity in the marital residence, and thereby impermissibly created a “double- dipping” for wife, prohibited under Code §§ 20-107.1 and 20-107.3. From our review of this record, we cannot conclude that the trial- 11 - court’s award of spousal support was an imperm issible “double dip.” Any award of spousal support enables the receiving spouse to pay expenses of any nature. Payment by a spouse receiving spousal support of inde btedness incurred in the receipt of prope rty during equitable

distribution alone will not cons titute the prohibited “double di pping” we addressed in Gamble

. Otherwise, any award of spousal support to a spouse who has r eceived encumbered property in equitable distribution of a mar ital estate would be prohibited. B. Amount of Support Awarded “Whether a spouse is entitled to support, and if so how mu ch, is a matter within the sound

discretion of the trial court and will not be dist urbed on appeal unless it is clear that some injustice has been done.” Bomar v. Bomar , 45 Va. App. 229, 238-39, 609 S.E.2d 629, 634 (2005) (citations omitted). In fixing the amount of [spousal su pport], the court must look to the financial needs of the wife , her age, physical condition and ability to earn, and balance ag ainst these circumstances the financial ability of the husband to pay, considering his income and his ability to earn. The amount awarded must, in any event, be fair and just under all the circumstances of the case.

Klotz v. Klotz , 203 Va. 677, 680, 127 S.E.2d 104, 106 (1962) (citations omitted). In reviewing a spousal support award, we are mindful that the trial court has broad discretion in aw arding and fixing the amount of spousal support. Accordingly, our review is limited to determining whether the trial court clearly abus ed its discretion. In exercising its discretion, the trial court must consider all the factors enumerated in Code § 20-107.1(E) when fashioning its award, but it is not required to quantify or elaborate ex actly what weight or consideration it has given to each of the statutory factors. That being said, the trial court’s fi ndings must have some foundation based on the evidence presented. Where that evidentiary foundation exists and the record di scloses that the trial court has given due consideration to each of [the statutory] factors, we will not disturb its determination as to spousal support on appeal.

Miller v. Cox , 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005) (citations omitted). Furthermore, “[t]he judgment of the trial court is presumed corre ct and we may not disturb its- 12 - ruling if there is cr edible evidence to support it.” Bomar , 45 Va. App. at 239, 609 S.E.2d at 634 (citations omitted). Here, wife requested spousal support in her in itial pleadings and thr oughout the course of litigation. She alternatively requ ested a lump sum award and various monthly periodic payments based on differing income and expense scenarios. The trial court determined that wife was entitled to a monthly spousal support payment of $1,000, explicitly noting in its letter opinion

that its decision was based on its consideration of each of the Code § 20-107.1(E) statutory factors as applied to the facts it determined from the ev idence. It found that the parties’ standard of living during the marriage was “quite comfor table.” It also found that husband was in good physical and mental health, while wife suffered from a number of physical and mental ailments, including clinical depression for which she took medication, as well as back and neck problems.

The record further shows that the trial court also evaluated wife’s financial needs, her age, her ability to earn, and the standard of living enjoyed during the ma rriage, against husband’s ability to pay, considering his income and ability to earn. See Via v. Via , 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992) (citing Klotz , 203 Va. at 680, 127 S.E.2d at 106 (citations omitted)). For spousal support purposes, it found husband’s annua l income to be $65,000, and wife’s to be $53,000, based on evidence presented by the parties. On this record, we find no abuse of discretion or error on the part of the trial court in awarding permanent spousal support to wife of $1,000 per month.

III.

AWARD OF ATTORNEY’S FEES AND COSTS AT TRIAL

Husband contends that the trial court abus ed its discretion in its award of $36,061.33 in attorney’s fees and costs to wife. He argues th at because the parties se ttled and entered into written agreements resolving almost all of the pr operty issues prior to trial; that a substantial- 13 - portion of wife’s attorneys’ fees and costs were incurred in preparation for and at trial; and that he prevailed at trial on the two remaining issues of equitable distribution, the trial court erred in awarding wife her incurred attorney’s fees and costs through trial. He also contends that the trial court erred in not awarding his cost s and attorneys’ fees at trial. We find no error in the trial court’s rulings on the award of attorn eys’ fees and costs on this record. “Whether to award attorney’s fees is a matter submitted to the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion.” Kane v. Szymczak , 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2002) (citation omitted). We have previously held “[t]he key to a proper award of counsel fees to be reasonablene ss under all of the circumstances revealed by the record , ” and evidence in the record must explain or justify the amount of the

award. McGinnis v. McGinnis , 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). Furthermore, “[a]n award of attorney’s fees to a party in a divorce suit is a matter for the trial court’s sound

discretion after considering the circumstances and equities of the entire case .” Artis v. Artis , 4 Va. App. 132, 138, 354 S.E.2d 812, 815 (1987) (c itations omitted) (emphasis added). “Where the trial judge finds that a fee awar d is justified, evidence of time expended and services rendered is a proper basis upon wh ich to fix an award.” Westbrook v. Westbrook , 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988). Wife’s attorney submitted detailed records of time and effort expended on her behalf. From th e evidence presented in this record, the trial

court could conclude that husband’ s behavior leading to the parties’ separation after thirty years of marriage, and during the divorce proceedings, re sulted in increased legal costs for wife to protect her interests and to pres erve the marital assets. See Taylor v. Taylor , 27 Va. App. 209, 216, 497 S.E.2d 916, 919 (1998).- 14 - On the record before us, we hold that the trial court did not abuse its discretion in awarding to wife $36,061.33 in attorney’s fees and costs, and in denying husband an award of his attorneys’ fees and costs.

IV.

ATTORNEY’S FEES AND COSTS ON APPEAL Both husband and wife seek 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. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context, and on consideration of the record before us, we hold neither party is enti tled to an award of attorney’s fees and costs incurred in this appeal.

CONCLUSION From this record, we find that the trial cour t did not err in admitting the testimony of Dr.

McMillan. We also find that the trial court did not err in its aw ard of spousal support or in its award of $36,061.33 in attorney’s fees and costs to wife. We conclude that the tria l court did not err in failing to award husband his attorneys’ fees a nd costs at trial. We find that neither party is entitled to an award of attorney’s fees or costs on appeal. Accordingly, we affirm.

Affirmed.