COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner 

JOSEPH MARK NEUBERT 

 MEMORANDUM OPINION*

v. Record No. 1675-14-4 PER CURIAM 

 JULY 21, 2015 

LINDA DEAN NEUBERT 

 FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

Charles S. Sharp, Judge 

 (Peter M. Fitzner; Matthews, Snider & Fitzner, on briefs), for 

appellant. 

 (Bethany Kirschner; Thomas Woehrle; Woerhle Franklin 

 Dahlberg Jones PLLC, on brief), for appellee. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

 Joseph Mark Neubert (“husband”) appeals the trial court’s award of spousal support to 

Linda Dean Neubert (“wife”). On appeal, husband contends the trial court erred in awarding 

spousal support that increases from $500 to $1,600 per month upon the sale of the former marital 

residence. He asserts the trial court erred by providing for an automatic increase based upon the 

occurrence of a future event. He also argues the trial court erred by failing to consider the 

income, earning capacity, needs, and financial resources in determining the amount of the 

spousal support award. 

 Furthermore, husband contends the trial court incorrectly determined the amount of 

wife’s income because it relied on 2012 rather than 2013 data and, regardless of which financial 

data was used, abused its discretion by awarding a substantially disproportionate amount of 

spousal support to wife that was unsupported by the evidence. 

UNPUBLISHED 
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 Finally, husband maintains the trial court erred in ruling that the spousal support award 

should continue indefinitely and by denying him the opportunity to re-open the case and present 

additional evidence regarding wife’s total 2013 income. 

 Upon reviewing the record and briefs of the parties, we conclude that this appeal is 

without merit. Rule 5A:27. Accordingly, we affirm the judgment of the trial court. 

Background 

 “On review, we consider the evidence in the light most favorable to the party prevailing 

in the trial court.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 31 

(1989). The trial court found that husband and wife had lived separate and apart for a year, 

thereby supplying them with a ground for divorce. The court undertook a detailed inventory of 

the parties’ assets and roughly divided them between husband and wife in equal parts, with 

husband providing wife an additional $37,137.62 upon the sale of the marital residence. 

 With regard to spousal support, the trial court expressly stated it had considered the 

factors in Code § 20-107.1. It found that the parties had been married over thirty years. It 

recognized that the couple’s marriage had remained intact over that period of time, that they had 

“raised children, acquired property, and maintained a standard of living which allowed them to 

make discretionary expenditures.” With regard to the parties’ respective incomes, the trial court 

concluded 

there was no evidence . . . to suggest either party is incapable of 

taking advantage of prior educational opportunities and continued 

employment. To that end, the Court notes that Mr. Neubert 

indicated his yearly income to be approximately $59,000.00. Mrs. 

Neubert testified to an income less than that, but frankly, the Court 

views the evidence as indicating that Mrs. Neubert may have 

additional income producing opportunities. Indeed, in the course 

of the hearing, it appeared that Mrs. Neubert was a financially 

savvy woman. Mrs. Neubert made contributions, monetary and 

non-monetary, to the well-being of the family. This consisted not 

only of her childrearing responsibilities but in the attention to 

family needs and the “sweat equity” that she invested in the 
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acquisition of family property, most significantly the family 

residence. The Court is also mindful of the fact that its prior 

rulings on equitable distribution vest assets of some value in each 

of these parties. 

 After observing it had examined these considerations and the income1

 and expenses 

submitted by the parties, the trial court awarded wife $500 monthly spousal support beginning 

January 1, 2014, to continue until the sale of the marital residence. Upon its sale, husband’s 

spousal support obligation would increase to $1,600 per month, beginning the first day of the 

month after the closing of the sale. The trial court determined that the support award would 

remain in effect “indefinitely or at such time as the statutory circumstances for termination 

arise.” 

Analysis 

 “‘In fixing the amount of the spousal support award, . . . the [trial] court’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. 190, 194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble, 14 

Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)). “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 exactly what weight or consideration it has given to each 

of the statutory factors.’” Fox v. Fox, 61 Va. App. 185, 203, 734 S.E.2d 662, 671 (2012) 

(quoting Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986)). However, “the 

trial court’s findings ‘must have some foundation based on the evidence presented.’” Id. 

(quoting Wooley, 3 Va. App. at 345, 349 S.E.2d at 426). 

 1

 In the final divorce decree the trial court found that wife’s annual income was $36,516. 
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 “An award for an undefined duration requires that the circuit court identify the subsection 

(E) factors supporting the award and explain the resolution of significant factual disputes.” 

Cleary v. Cleary, 63 Va. App. 364, 370 n.4, 757 S.E.2d 588, 591 n.4 (2014) (citation omitted). 

The record reveals that the trial court properly considered the relevant statutory factors. 

The trial court explicitly stated it had considered the factors in Code § 20-107.1. The trial court 

took into account the health of the parties and their ability to take advantage of their prior 

educational opportunities and employment. It specifically found that husband’s income was 

$59,000, while wife’s was $36,516. It also considered the length of the parties’ marriage, their 

lifestyle during the marriage, and their respective monetary and non-monetary contributions and 

property interests. 

 Wife presented evidence from her 2012 tax returns that her annual gross income was 

$36,520. At the time of the hearing in December 2013, she did not present a 2013 tax return or 

an income and asset statement based upon her 2013 income and expenses. However, she 

testified her 2013 income might be less than 2012, in part because she had devoted significant 

time to the divorce litigation. Wife, a residential real estate appraiser, also explained her income 

had dropped by nearly half since “the market came to a screeching halt” in 2006. The evidence 

established that, over the course of the parties’ thirty-six years of marriage, her total earnings 

were $628,771, less than a quarter of the total $2,264,991 earned by the couple over that time 

period. 

 Husband presented evidence that his gross monthly income was $5,001 in 2013, while 

wife’s evidence established her gross monthly income was $3,043, a difference of $1,958. Based 

on her net income and her monthly expenses, wife sought spousal support of $2,543. She 

maintained her monthly income expenses exceeded her monthly net income by $1,977, and 

asked that she be awarded that amount, as well as state and federal support taxes. Taking into 
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account her non-monetary contributions to the marriage and the difference in the parties’ 

incomes, but recognizing wife as a “financially savvy woman” who might have “additional 

income producing opportunities,” the trial court awarded less spousal support than the amount 

sought by wife. 

 The evidence established that, at the time of the hearing, husband’s annual income 

exceeded wife’s annual income by approximately $12,500. Furthermore, while wife provided 

evidence to the court her 2012 income was $36,520, she explained her income in 2013 had been 

less than that. Evidence established that in four of the past ten years, husband’s annual income 

was approximately twice as much or more than wife’s annual income. Upon the sale of the 

house, husband was relieved of a monthly mortgage obligation of $1,350 as well as associated 

upkeep. With regard to living expenses, husband conceded he had not explored living in an 

apartment instead of a single family dwelling because an apartment would not accommodate his 

boat. 

While husband presented evidence suggesting wife’s gross income in 2013 was at least 

$48,115, the trial court was entitled to discount this evidence because it did not establish wife’s 

net income, and because it did not take into account her income and expenses for the entire year. 

The trial court’s reliance on wife’s most recent tax return was sufficiently “contemporaneous” to 

support its decision regarding its findings regarding her income. See Jacobs v. Jacobs, 219 Va. 

993, 995, 254 S.E.2d 56, 58 (1979) (holding that an award must be based on “contemporaneous 

circumstances” as opposed to uncertain future circumstances). 

Accordingly, as the trial court’s decision was based upon the required statutory factors in 

determining the amount of the spousal support award and was supported by the evidence, we 

conclude it did not abuse its discretion in awarding wife spousal support that increased from 

$500 to $1,600 upon the sale of the marital residence. 
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 To the extent husband contends the trial court erred by providing for an “automatic 

increase upon the occurrence of a future event,” we decline to consider that argument because he 

raises it for the first time on appeal. See Rule 5A:18. While husband objected to the amount of 

the spousal support award below, he did not contest the award on the basis that it was based on 

an uncertain future event. Under Rule 5A:18, “[t]he same argument must have been raised, with 

specificity, at trial before it can be considered on appeal.” Correll v. Commonwealth, 42 

Va. App. 311, 324, 591 S.E.2d 712, 719 (2004); see Edwards v. Commonwealth, 41 Va. App. 

752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (“Making one specific argument on an issue 

does not preserve a separate legal point on the same issue for review.”). 

Although husband asks that we consider this argument pursuant to the ends of justice 

exception in Rule 5A:18, the record does not justify application of the exception. In Courembis 

v. Courembis, 43 Va. App. 18, 28-29, 595 S.E.2d 505, 510 (2004), we held that application of 

the ends of justice exception was limited to a trial court’s failure to determine the presumptive 

amount of child support or to make written findings justifying its deviation from that amount. 

We explained our decision as follows: 

Husband further argues that the ends of justice exception to Rule 

5A:18 should apply to the issue of spousal support. Relying on 

this Court’s decision in Herring [v. Herring, 33 Va. App. 281, 532 

S.E.2d 923 (2000)], husband claims that the court’s failure to 

comply with the affirmative statutory duty found in Code 

§ 20-107.1(F)—which directs the trial court to make “written 

findings and conclusions . . . identifying the factors in subsection 

E which support the court’s order”—constitutes a basis for 

applying the ends of justice exception, notwithstanding his failure 

to bring the alleged error to the court’s attention. We disagree. In 

Herring, we agreed to consider, despite appellant’s failure to 

contemporaneously object at trial, whether the trial court erred by 

failing to determine the presumptive amount of child support, 

pursuant to Code § 20-108.1(B), and by deviating from the 

presumptive amount. Herring, 33 Va. App. at 287, 532 S.E.2d at 

927. We specifically limited our holding to the failure to explain a 

deviation from the guidelines. “To make clear our holding, we 

note that our application of the ends of justice exception in this 
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case . . . applies only to the court’s failure in child support cases to 

expressly calculate the guideline amount or to make the written 

findings required to justify its deviation from that amount.” Id. at 

287 n.2, 532 S.E.2d at 927 n.2. Herring is specifically limited to 

its facts, and we decline to extend its holding to the issue presented 

here. 

Id. (emphasis added). 

 

Here, husband’s arguments pertain to the lack of evidence supporting the trial court’s 

spousal support award, not child support, and therefore do not merit our consideration under the 

ends of justice exception. 

Likewise, we find no merit in husband’s assertion that the trial court abused its discretion 

in awarding spousal support to wife for an indefinite period of time. “[Code § 20-107.1] does 

not require the trial court to specify the date of termination of a spousal support award. In fact, 

the language allows the trial court to order an award for an undefined duration.” Joynes v. 

Payne, 36 Va. App. 401, 423, 551 S.E.2d 10, 21 (2001). Husband cites no authority to the 

contrary. Thus, the trial court did not abuse its discretion. 

Finally, husband contends the trial court abused its discretion by denying his motion to 

reconsider its decision on January 27, 2014 and by quashing his subpoena duces tecum seeking 

to obtain additional information about wife’s total 2013 income. We disagree. 

 “Motions to reopen a hearing to take further evidence are matters within the court’s 

discretion.” Shooltz v. Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998). Husband 

had the opportunity to present evidence regarding wife’s income at the hearing on December 17, 

2013. Instead, he filed a motion to reconsider three months after the trial court’s decision in 

January 2014 seeking to present that evidence. 

“After a court has concluded an evidentiary hearing ‘during which each party had ample 

opportunity to present evidence, it [is] within the court’s discretion to refuse to take further 

evidence on this subject.’” Holmes v. Holmes, 7 Va. App. 472, 480, 375 S.E.2d 387, 392 (1988) 
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(alteration in original) (quoting Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 

(1986)). Accord Shooltz, 27 Va. App. at 269, 498 S.E.2d at 439-40. To establish an 

“entitlement to a rehearing, a petitioner must show either an ‘error on the face of the record, or 

. . . some legal excuse for his failure to present his full defense at or before the time of entry of 

the decree.’” Holmes, 7 Va. App. at 480, 375 S.E.2d at 392 (quoting Downing v. Huston, 

Darbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37 (1927)). 

 Here, husband has failed to do either. Husband has failed to establish an error on the face 

of the record or offer any legal excuse for his failure to present sufficient evidence of wife’s 

2013 income for the hearing in December 2013. Instead, husband merely asserts that allowing 

him to undertake additional discovery “would have supplied the answer to the trial court’s 

finding that [wife] may have additional income producing opportunities.” 

 Thus, the trial court did not abuse its discretion in refusing to allow husband to obtain and 

submit additional evidence of wife’s 2013 income prior to the entry of the final divorce decree. 

 Accordingly, the trial court’s decision is summarily affirmed. Rule 5A:27. 

 Affirmed.