James J. Mortimer v Teri L. Mortimer

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia

JAMES J. MORTIMER

Vv. Record No. 0418-95-4 MEMORANDUM OPINION BY
JUDGE JERE M. H. WILLIS, OR.
TERI L. MORTIMER DECEMBER 29, 1995

FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge

Marilyn Ann Solomon for appellant.

Mark Allen Vann (Chasler, Adrian and Bowman,
P.L.C., on brief), for appellee.

On appeal from the trial court's decree of January 24, 1995,
granting James Mortimer and Teri Mortimer a divorce a vinculo
matrimonii, James Mortimer contends that the trial court erred
(1) in awarding custody of the parties' two minor children to Ms.
Mortimer, (2) in awarding spousal support to Ms. Mortimer, (3) in
determining the equitable distribution award, and (4) in awarding
attorney's fees to Ms. Mortimer. We find no error and affirm the
judgment of the trial court.

Mr. and Ms. Mortimer were married on August 25, 1984 in
California. At the time of their separation on October 16, 1992,
they had two minor children, Ashlee age 6 and Justin age 3.

On January 22, 1993, the parties entered into a joint

consent decree giving both parents legal custody and Ms. Mortimer

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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physical custody. 	Under the decree, Mr. Mortimer was required to
pay $650 a month in child support.
In June, 1993, Ms. Mortimer moved with the children to
California without giving notice to Mr. Mortimer. 	Mr. Mortimer
petitioned for a change in custody because Ms. Mortimer had taken
the children out of the state in violation of his right to joint
custody. 	The Juvenile and Domestic Relations District Court of
Frederick County entered an order on November 24, 1993, giving
both parents legal custody, but retaining physical custody with
Ms. Mortimer.
On January 24, 1995, the parties were divorced a vinculo
matrimonii on the ground of a one year separation. 	The court
awarded Ms. Mortimer physical and legal custody of the minor
children, $758 a month in child support, $100 a month in spousal
support, $1,564 lump sum payment, and $2,025 in attorney's fees.
First, Mr. Mortimer contends the trial court failed to
properly apply Code § 20-124.3 in determining custody of Ashlee
and Justin. 	He contends that Ms. Mortimer's moving to California
with the children was a material change in circumstances
justifying a change in custody to him. 	He argues that it is in
the children's best interests to live with him and that they have
suffered since their move to California.
We find no error in the trial court's award of custody to
Ms. Mortimer pursuant to Code § 20-124.3. 	The trial court
applied the factors from Code § 20-124.3 and "found none

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significantly negative or overwhelmingly positive as regards to
this matter to disturb the status quo." 	"Whether a change of
circumstances exists is a factual finding that will not be
disturbed on appeal if the finding is supported by credible
evidence." 	Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40,
41 (1986).
Second, Mr. Mortimer contends the trial court erred in
awarding $100 a month spousal support to Ms. Mortimer. 	He argues
that Ms. Mortimer is not entitled to spousal support because she
caused the marriage breakup and she gave up a well-paying job
with benefits to move to California. 	He additionally argues that
he is unable to pay spousal support. 	We disagree.
The trial court considered all the factors in Code
§ 20-107.1 and found no disqualifying circumstances barring an
award. 	It further found that Mr. Mortimer had the ability to pay
spousal support and that Ms. Mortimer needed support. 	"When the
record discloses that the trial court considered all of the
statutory factors, the court's ruling will not be disturbed on
appeal unless there has been a clear abuse of discretion."
Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644
(1992).
Third, Mr. Mortimer contends the trial court erred in
determining the equitable distribution of the parties' marital
property. 	"Fashioning an equitable distribution award lies
within the sound discretion of the trial judge and that award

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will not be set aside unless plainly wrong or without evidence to
support it. 	Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
S.E.2d 675, 678 (1990) (citation omitted). 	The trial court found
the marital assets received by Mr. Mortimer equaled $18,550 and
the marital assets received by Ms. Mortimer equaled $8,950. 	The
trial court ordered Mr. Mortimer to pay $6,471 in marital debts
and a $1,564.50 lump sum payment to Ms. Mortimer to equalize the
marital assets. 	This gave each party $10,514.50 of the marital
assets. 	We find no error in the trial court's award.
Fourth, Mr. Mortimer contends the trial court erred in
awarding Ms. Mortimer attorney's fees. 	He argues that he was
punished for not accepting Ms. Mortimer's "Offer and Compromise."
We disagree.
A trial court has authority pursuant to Code § 20-103 to
award attorney's fees to enable a spouse to maintain a suit. 	"An
award of attorney's fees is a matter submitted to the trial
court's sound discretion and is reviewable on appeal only for an
abuse of discretion." 	Graves v. Graves, 4 Va. App. 326, 333, 357
S.E.2d 554, 558 (1987) (citation omitted). 	An award of
attorney's fees was appropriate under the circumstances because
Mr. Mortimer refused the "Offer and Compromise" when he knew that
he had insufficient evidence to warrant a change of custody. 	He
thereby prolonged the litigation knowing Ms. Mortimer could ill
afford additional attorney's fees.
We affirm the judgment of the trial court.

Affirmed.
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