Opinion
Record No. 1327-93-4
Decided: July 12, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Rosemarie Annunziata, Judge
Affirmed.
Lawrence D. Gaughan (Gaughan Schargorodski, on briefs), for appellant.
Robert K. Thompson, for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John Douglas Stafford (husband) appeals the order of the trial court which awarded $1250 per month spousal support to Shirley T. Stafford (wife). He complains that the trial court erroneously applied a "formula" to ascertain the award and incorrectly determined the incomes of the parties. We disagree and affirm the decision of the trial court.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to this memorandum opinion. "Upon familiar principles, we review the evidence on appeal in the light most favorable to wife, the party prevailing below." Cook v. Cook, ___ Va. App. ___ ___, ___ S.E.2d ___, ___ (1994). " 'Where . . . the court hears the evidence ore tenus, its finding[s are] entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support [them].' " Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
"[W]hether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court . . . ." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). As long as such an award is " 'based upon due consideration of the factors enumerated in Code Sec. 20-107.1, as shown by the evidence, [it] "will not be disturbed except for a clear abuse of discretion." ' " Poliquin v. Poliquin, 12 Va. App. 676, 679, 406 S.E.2d 401, 403 (1991) (citations omitted); Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992).
Here, husband does not dispute that evidence relative to the several statutory factors set forth in Code Sec. 20-107.1 was properly before the court but asserts that comments of the trial judge suggested that she calculated a support award intended only to ensure that the parties' "income level [would] be equal." However, the trial judge also noted that, although the award balanced "the parties' post-divorce income[s]," it was "based on all the facts and circumstances of this case and upon consideration of all the statutory criteria of [Code] Sec. 20-107.1" (emphasis added).
On appeal, we may not fix upon isolated statements made by a trial judge which might suggest error, but rather, we view the actions and comments of the court in the context of the entire proceedings. EDF v. State Water Control Bd., 15 Va. App. 271, 279, 422 S.E.2d 608, 613 (1992); see also Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Our review of the entire record confirms that the trial court properly heard and considered evidence relevant to the several statutory factors and acted accordingly, without any abuse of discretion.
Husband next argues that the evidence was insufficient to support the finding that his yearly net income was 59,500. Husband, a real estate agent paid on commission, presented evidence of his income for the years 1989 through 1992. The court, recognizing the uncertainty of commission income, "drop[ped] out the best year and the worst year," averaged husband's earnings for the remaining two years, deducted 15 percent for business expenses and calculated $59,500 as his average net annual income. This determination was necessary to evaluate properly husband's financial ability to pay spousal support and finds sufficient support in the record. See Dukelow, 2 Va. App. at 26, 341 S.E.2d at 210 (while "[t]hose spouses deemed entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, . . . their needs must be balanced against the other spouse's financial ability to pay").
Husband also argues, for the first time on appeal, that the evidence was insufficient to support the finding that wife's income was $29,500. However, Rule 5A:18 precludes us from addressing this issue.
A percentage not disputed by either party.
Husband acknowledged that his 1992 net income had been $69,000, but estimated his 1993 gross income would only be "a little bit over $60,000." Code § 20-109 permits modification of spousal support "as the circumstances may make proper."
Therefore, we affirm the judgment of the trial court.
Affirmed.