Patricia S. Willis v Joseph P. Spinner, Jr.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
PATRICIA S. WILLIS
MEMORANDUM OPINION*
v. 	Record No. 1004-99-2 	PER CURIAM
OCTOBER 19, 1999
JOSEPH P. SPINNER, JR.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
(Renay M. Fariss, on briefs), for appellant.
(Thomas L. Gordon; Gordon, Dodson & Gordon,
on brief), for appellee.
Patricia S. Willis ("Willis") appeals the judgment of the
circuit court pertaining to the failure of Joseph P. Spinner, Jr.
("Spinner") to pay spousal support. 	Willis contends that the
circuit court erred in failing to find that Spinner was in
contempt of court and in failing to award Willis her "actual"
attorney's fees. 	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.
See Rule 5A:27.
The parties were divorced by final decree entered on March
23, 1987. 	The final decree ordered that Spinner pay Willis $200
per month as spousal support. 	Spinner requested a reduction in
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

the monthly spousal support amount, and on September 28, 1987, a
hearing was held in the circuit court regarding Spinner's appeal
of the denial of his motion in the juvenile and domestic relations
district court ("J & DR court"). 	The circuit court granted
Spinner's motion and reduced his monthly spousal support
obligation from $200 to $150. 	However, no order was entered
reflecting the circuit court's ruling until March 22, 1999, when
an order was entered nunc pro tunc to December 21, 1987, the date
on which the parties had originally submitted an order to the
court regarding the September 28, 1987 hearing.
On February 28, 1996, Willis filed a Show Cause Summons in
the J & DR court alleging that Spinner was in arrears for monthly
spousal support payments of $150 per month since September, 1995.
On July 1, 1996, the J & DR court dismissed the motion. 	A
handwritten note on the dismissal form states, "No court order."
Willis appealed that decision to the circuit court. 	By order
entered February 5, 1997, the circuit court dismissed the appeal,
indicating that there was no order from which Willis could appeal.
On March 24, 1997, Willis again filed a Show Cause Summons in
the J & DR court, alleging that Spinner was in arrears for his
spousal support in the amount of $200 per month pursuant to the
March 23, 1987 final divorce decree. 	The parties then exchanged
various discovery requests regarding the missing December 21, 1987
court order.
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On March 2, 1998, the J & DR court sustained Willis's Motion
for Show Cause and assessed the arrearage at $6,800.23. 	The
J & DR court also awarded Willis $3,043.95 in interest and a total
of $1,320 in attorney's fees. 	The order indicates that the J & DR
court based its ruling on the March 23, 1987 final divorce decree.
Spinner appealed the decision of the J & DR court.
At one point, the parties reached a settlement agreement for
Spinner to pay Willis a specified amount; however, the parties
were unable to agree on the distribution of the settlement amount.
The record also indicates that on December 15, 1998, Spinner
tendered a check to Willis in the amount of $1,250 as payment for
the spousal support arrearages. 	However, Willis refused to accept
the check.
In the meantime, personnel in the circuit court clerk's
office found the missing December 21, 1987 order. 	After a hearing
at which the trial judge heard evidence reconstructing the facts
related to that order, the trial judge entered an order on March
22, 1999, nunc pro tunc to December 21, 1987, indicating that
Spinner's spousal support obligation was $150 per month beginning
on October 1, 1987.
On March 9, 1999, the circuit court held a hearing for
Spinner's appeal of the March 2, 1998 J & DR order. 	At that
hearing, Spinner admitted that he owed $1,250 in spousal support
arrearages. 	By order entered April 1, 1999, the trial judge
awarded Willis $1,250 in spousal support arrearages, and the trial
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judge awarded Willis $279 in interest. 	The trial judge refused to
find Spinner in contempt of court because of the "conflicting
orders and non-existing orders" in the case.
Willis's counsel requested $8,587.50 in attorney's fees. 	The
trial judge ordered that Spinner pay only $500 of Willis's
attorney's fees, stating, "I'm not going to dignify this absurdity
by awarding fees for a case that has gone on and on
unnecessarily." 	The trial judge went on to say that he was not by
his ruling indicating that the requested attorney's fees were
unreasonable or were not earned. 	However, the trial judge stated,
"I'm not going to add insult to injury by awarding those
attorney's fees. 	The case should have been resolved a long time
ago." 	Willis noted her objection on the trial judge's April 1,
1999 order, indicating that she objected only to the trial judge's
failure to award her "actual attorney's fees."
Willis contends that the trial judge erred in failing to find
that Spinner was in contempt of court for failure to pay spousal
support. 	"On appellate review of this issue, we may reverse the
ruling of the trial court only if we find that it abused its
discretion. 	A trial court may hold a support obligor in contempt
for failure to pay where such failure is based on unwillingness,
not inability, to pay." 	Barnhill v. Brooks, 15 Va. App. 696, 704,
427 S.E.2d 209, 215 (1993).
When ruling on the contempt issue, the trial judge stated,
"With these conflicting and non-existing orders, I can't find that
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there has been a willful and contemptuous act on the part of Mr.
Spinner." 	We cannot conclude, based on the evidence on this
record, that the trial judge abused his discretion.
Willis next contends that the trial judge abused his
discretion in failing to award her $8,587.50 in attorney's fees.
An award of attorney's fees is a matter submitted to the sound
discretion of the trial judge and is reviewable on appeal only for
an abuse of discretion. 	See Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). 	The key to a proper award of
counsel fees is reasonableness under all the circumstances. 	See
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The record indicates that both parties vigorously litigated
this matter. 	The trial judge noted that the "case should have
been resolved a long time ago" and had "gone on and on
unnecessarily." 	In light of the circumstances of the case, we
cannot say that the award was unreasonable or that the trial judge
abused his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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