Opinion
Record No. 1788-94-3
Decided: March 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RADFORD, Duane E. Mink, Judge
(Helen E. Phillips; Tucker Associates, on brief), for appellant.
(Edwin C. Stone; Stone, Harrison, Turk Showalter, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Donna Elizabeth Tubbs Merkt (wife) appeals the decision of the circuit court awarding her spousal support from William Edward Merkt (husband). Wife contends the trial court failed to consider all the statutory factors contained in Code Sec. 20-107.1 before awarding her support. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the nine factors that are set forth in Code Sec. 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 (1986).
Wife contends the trial court failed to give due consideration to one of the statutory factors, husband's earning capacity, because the court did not include husband's anticipated bonus in the calculation of husband's monthly income. See Code Sec. 20-107.1(1). The commissioner received evidence from both parties as to their earnings and expenses. He also received evidence about the parties' financial resources.
While husband had earned a bonus in the previous three years, the evidence was, at best, inconclusive as to the likelihood of a bonus for 1993. Moreover, where a party's realization of additional income is "an irregular occurrence and . . . not contemporaneous with the support proceeding, the trial judge does not abuse his discretion by failing to include the [additional income] in calculating gross monthly income." Smith v. Smith, 18 Va. App. ___, ___, 444 S.E.2d 269, 274 (1994) (calculating child support). Therefore, we cannot say the trial court erred in accepting the commissioner's recommended amount of spousal support, notwithstanding the exclusion of husband's anticipated bonus.
Wife also contends that the decision to award her only $315 in monthly spousal support was an abuse of the court's discretion, in light of the disparity in income between wife and husband and the reduction in wife's standard of living. The record contains substantial evidence concerning the parties' earnings and expenses. While husband's earnings were higher than wife's, husband also had more expenses. The income received by wife after the award of spousal support exceeded wife's monthly expenses.
The commissioner's report reveals that the commissioner considered the statutory factors. The trial court expressly found that sufficient evidence supported the commissioner's ruling on spousal support. We cannot say the trial court's decision as to the amount of spousal support was a clear abuse of its discretion. Accordingly, the decision of the circuit court is summarily affirmed.
Affirmed.