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Barrett v. Barrett4/26/2005
Timothy Martin Barrett (husband) appeals from the final decree of equitable distribution arising out of his divorce from Valerie Jill Rhudy Barrett (wife). On appeal, husband contends that the trial court erred by relying on the testimony of witnesses wife did not identify in the discovery order; by failing to properly consider the parties' marital debts; and by ordering him to pay $6,000 toward wife's attorney's fees incurred during the parties' prior divorce proceeding. For the reasons that follow, we reverse and vacate that part of the trial court's judgment ordering husband to pay $6,000 of attorney's fees incurred by wife after the separation of the parties, but otherwise affirm the judgment of the trial court.
BACKGROUND
On appeal from an equitable distribution award, we view the evidence in the light most favorable to the party prevailing below, "and grant all reasonable inferences fairly deducible therefrom." Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). So viewed, the evidence establishes that husband and wife were married on July 28, 1990. During the eleven years of marriage, six children were born to the parties, namely: J.H. born in March 1992; A.E., in August 1993, E.E., in May 1995; E.G., in April 1997; W.A., in February 1999; and K.N. born in February 2001, just five months before the parties separated. On July 21, 2001, as a result of husband's mistreatment and out of concern for her health, wife left the marital residence in Virginia Beach with the six children and moved to Grayson County where her parents resided. She subsequently filed for divorce alleging husband's cruelty as grounds for divorce.
On August 16, 2002, the trial court entered a final decree granting wife a divorce on the amended grounds that the parties had lived separate and apart without interruption for more than a year. Code ยง 20-91(A)(9)(a). It awarded wife custody of the six children, then ranging in age from sixteen months to nine years, child support, and temporary spousal support. As a result, in part, of husband's aggressive and harassing behavior during the divorce proceedings, wife incurred substantial attorney's fees, of which approximately $29,500 remained unpaid. In its final decree of divorce, the trial court did not award attorney's fees to wife, and did not reserve to her the right to seek attorney's fees at a later date. In the final decree, the trial court released each party's attorney from further representation of their respective clients. Wife's attorney did not object to the decree and did not appeal the fee issue. The decree of divorce deferred any additional determination of spousal support and equitable distribution until a later proceeding.
Husband, a licensed Virginia attorney appearing pro se, filed pleadings on September 9, 2002, twenty-four days after entry of the final decree of divorce, requesting that the trial court determine spousal support and equitable distribution of the parties' marital estate. He filed multiple discovery requests, including numerous interrogatories and requests for admission, and gave notice that hewould take wife's deposition in Virginia Beach. At the time, wife was unable to afford counsel as she and the six small children were receiving public assistance. Husband was in arrears in payment of both the court-ordered child support and spousal support. Wife subsequently obtained counsel through the Legal Aid Society of Eastern Virginia, Inc., which provides legal aid for indigent persons. On husband's motion, the trial court established July 21, 2001, the date the parties separated, as the valuation date for the marital estate. It referred the matter to a commissioner in chancery "to take test
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