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Cleary v. Cleary

Court of Appeals of Virginia

May 13, 2014

PAMELA S. CLEARY
v.
THOMAS C. CLEARY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. David S. Schell, Judge.

Reversed and remanded.

Lawrence D. Diehl (Brandy M. Poss; Barnes & Diehl, P.C., on briefs), for appellant.

Beth A. Bittel (Joshua R. Anthony; Law Offices of Beth A. Bittel, P.C., on brief), for appellee.

Present: Judges Beales, Decker and Senior Judge Clements.

OPINION

Page 589

[63 Va.App. 366] MARLA GRAFF DECKER, JUDGE.

Pamela S. Cleary (the wife) appeals a final order of the circuit court awarding spousal support. On appeal, she argues that the court erred bye awarding her spousal support for a defined duration without written findings identifying the basis for the specific duration of the award. The wife also argues that the circuit court abused its discretion in limiting her spousal support award to five years and in not making the award for an undefined duration. The husband counters that the court provided sufficient written findings and is not required to provide a justification for the specific duration. He also suggests that the circuit court did not abuse its discretion in limiting support to a defined duration. Both parties request an award of appellate attorneys' fees and costs.

[63 Va.App. 367] We hold that the circuit court erred by failing to make written findings sufficient to comply with Code § 20-107.1(F). In light of this conclusion, we do not reach the wife's arguments that the court abused its discretion in limiting her award to a duration of five years rather than awarding her spousal support for an undefined duration. Finally, we deny both parties' requests for attorneys' fees and costs incurred in this matter. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The parties married on August 27, 1994, and had three children together. During the marriage, the husband worked as a financial advisor. The wife worked as a pharmaceutical sales representative for part of the marriage, and then she independently contracted for a weight-loss business.

The parties separated after approximately seventeen years of marriage, and the wife filed for divorce. The circuit court awarded the wife a divorce on the grounds of adultery. The court made awards of equitable distribution, spousal support, child support, and attorneys' fees. The circuit court specifically awarded the wife spousal support of $5,000 per month for a period of sixty months.[1]

In determining the spousal support award, the circuit court made detailed factual findings. The court specifically considered the parties' needs, financial resources, ability to work, and earning capacities. The court recognized that the wife had " the ability to work." It noted that " [t]here was an expert who testified that she could make between [$]50[,000] and [$]60,000 a year as a general salesperson." The court also considered the high standard of living established during the marriage, the seventeen-year duration of the marriage, the parties' physical and mental conditions, each party's contributions [63 Va.App. 368] to the well-being of the family, the property interests of the parties, and the court's own equitable distribution rulings. The court additionally noted that the wife helped the husband when he obtained his brokerage license as well as when he first started his business.

The wife made a motion for the court to reconsider its decision regarding spousal support, arguing in part that the court did not make any written findings and provided " no explanation as to why spousal support was to end at 5 years." The court summarily denied ...


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