Opinion
Record No. 0251-93-3
Decided: June 14, 1994
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY, Donald R. Mullins, Judge
Affirmed.
Robert M. Galumbeck (Galumbeck, Simmons Reasor, on briefs), for appellant.
Thomas P. Walk (Altizer, Walk White, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal from a decree awarding custody, spousal support, and attorney's fees, we conclude that the trial court did not err and affirm the decree.
CUSTODY
The mother appeals the custody award. She raises eight separate arguments relating to the trial court's determination, all of which will be addressed together.
In custody disputes the court must determine, based on all the evidence before it, the best interests of the child. Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986). This Court gives great deference to the trial court's determination based upon ore tenus hearings, and will not disturb the decision "unless plainly wrong or without evidence to support it." Id.
The trial court found "the testimony of the husband and that of his father and mother very convincing" and did not "find the testimony of the wife credible." The court found the father
to be a mature young man who has shown great concern for his children and has tried to shield them from irrational violent behavior of the mother. He has exhibited a very pleasant, mild-mannered personality with a conscientious concern for his children's physical and psychological well being. It is evident from all the evidence that he truly loves his children and they love him.
Although the court did not doubt the mother's love for her children, it found that she was "very immature, volatile and not above using her children to further her own wants and desires." In addition, the court found that during the marriage the mother had "refused to contribute to their meager resources by refusing to maintain employment even though she was very capable of doing so." Hoping to force her husband to quit his eight-year training to become a doctor of pharmacy and "get a full-time job," the wife stopped taking birth control pills and became pregnant. The court also found that the mother had "instigat[ed] physical confrontations with the husband in front of the children" and found that her "recent threats to take the children to Florida indicate that the immaturity exhibited during the marriage still exists."
On appeal, we view the evidence in the light most favorable to the prevailing party. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Thus, we consider only that evidence which does not conflict with the father's evidence. Considering only such evidence, we conclude that credible evidence supports the trial court's finding that an award of custody to the father was in the best interests of the children.
SPOUSAL SUPPORT AND ATTORNEY'S FEES
The husband appeals the award of spousal support and pendente lite support, contending that the trial court incorrectly applied North Carolina law in determining the awards. Finding no error, we affirm both awards.
Pendente Lite Support
The trial court properly awarded support pendente lite to the wife. At the time, the wife's suit for divorce was pending in the circuit court; therefore, the court had discretion to order the husband to pay support. Code Sec. 20-103(i). We affirm the order for support pendente lite.
Spousal Support
We assume, without deciding, that North Carolina law applies to the question of spousal support. The parties, who had never lived as husband and wife in Virginia and whose divorce decree was entered in North Carolina, agreed below that the law of that state governed the matter.
In North Carolina, alimony is governed by N.C. Gen. Stat. Sections 50-16.1 et. seq. Only a "dependent spouse" is entitled to alimony. N.C. Gen. Stat. Sec. 50-16.2. A "dependent spouse" is one who is "actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse." N.C. Gen. Stat. Sec. 50-16.1(3). The spouse seeking alimony must "be actually unable to maintain the accustomed standard of living (established prior to separation) without [some] financial contribution from the other." Williams v. Williams, 261 S.E.2d 849, 855 (N.C. 1980); see Hunt v. Hunt, 436 S.E.2d 856, 859 (N.C.Ct.App. 1993).
In addition to being "dependent," a spouse must have grounds for receiving alimony. N.C. Gen. Stat. Sec. 50-16.2 These grounds generally involve fault on the part of the supporting spouse.
A dependent spouse is entitled to an order for alimony when:
(1) The supporting spouse has committed adultery.
(2) There has been an involuntary separation of the spouses in consequence of a criminal act committed by the supporting spouse prior to the proceeding in which alimony is sought, and the spouses have lived separate and apart for one year, and the plaintiff or defendant in the proceeding has resided in this State for six months.
(3) The supporting spouse has engaged in an unnatural or abnormal sex act with a person of the same sex or of a different sex or with a beast.
(4) The supporting spouse abandons the dependent spouse.
(5) The supporting spouse maliciously turns the dependent spouse out of doors.
(6) The supporting spouse by cruel or barbarous treatment endangers the life of the dependent spouse.
(7) The supporting spouse offers such indignities to the person of the dependent spouse as to render his or her condition intolerable and life burdensome.
(8) The supporting spouse is a spendthrift.
(9) The supporting spouse is an excessive user of alcohol or drugs so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome. or her means and condition so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome.
On review, the North Carolina Court of Appeals requires that the trial court make explicit findings of dependency and of grounds for alimony. Hunt, 436 S.E.2d at 859 (requiring explicit finding of dependency); Taylor v. Taylor, 265 S.E.2d 626, 630 (N.C.Ct.App. 1980) (requiring finding or stipulation that grounds for alimony exist). However, although North Carolina law governs the substantive question of support, on appeal we apply our own standard of review. See Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986). Our standard of review requires only that we find credible evidence to support the trial court's award. Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990).
Viewing the evidence in the light most favorable to the wife, Pommerenke, 7 Va. App. at 244, 372 S.E.2d at 631, we find that credible evidence supports the trial court's award of eight months of spousal support. The evidence showed that, although the couple's standard of living was relatively low, the wife was substantially dependent upon the husband's income, albeit with assistance from his and her parents, during the marriage. Unemployed following the separation, she continued to be in need of support, which was awarded for a period of eight months.
The record contains evidence from which the trial court could have found grounds for alimony pursuant to N.C. Gen. Stat. Sec. 50-16.2(6). The wife and several witnesses testified that the husband had abused the wife physically and verbally. Although the trial court found the wife "not credible" with respect to the issue of custody, it made no specific finding regarding the husband's behavior toward her. Viewing the evidence in the light most favorable to the wife, we hold that the trial court's award was supported by the evidence and affirm.
Attorney's Fees
Because an award of attorney's fees is remedial, it is governed by Virginia law. Frye, 231 Va. at 376, 345 S.E.2d at 272. An award of attorney's fees under Code Sec. 20-79(b) falls within the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). Finding no abuse of discretion, we affirm.
JURISDICTION
The husband contends that the trial court did not have jurisdiction over him because process was served on him while he was attempting to attend another court proceeding. The "Additions to 'Written Statement of the Facts,' " signed by the judge, contains the following: "The Defendant was served with the described process and notice while attempting to attend a hearing in the Juvenile and Domestic Relations District Court for Tazewell County on a petition he had filed with that court on July 14, 1991 . . . ." The husband claims that he was immune from service. We disagree.
The father petitioned for custody in the juvenile and domestic relations district court and scheduled the matter for a hearing on the day on which he was served with the mother's petition for custody, child support, divorce, and spousal support. Because the matters in controversy were closely related, we hold that the "related litigation" exception to the general rule of immunity from service when attending a court proceeding applies. Lester v. Bennett, 1 Va. App. 47, 50-51, 333 S.E.2d 366, 368-69 (1985).
We reject the husband's contention that the service was fraudulently obtained. He had voluntarily submitted himself to the jurisdiction of the juvenile and domestic relations district court. The wife had the right to have the circuit court assume jurisdiction over the matter when she sued for divorce and custody in the circuit court. Therefore, the service was not tainted, and the circuit court had personal jurisdiction over the husband.
For these reasons, we conclude that the trial court's decree should be affirmed.
Affirmed.