Wright v. Wright

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

CLIFFORD E. WRIGHT
OPINION BY
v. Record No. 1175-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 18, 2002
SALLIE D. WRIGHT

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge

Christine Mougin-Boal (Paice & Mougin-Boal,
P.C., on briefs), for appellant.

Ann B. Vance (Carr & Vance, P.C., on brief),
for appellee.

In this domestic relations case, Clifford E. Wright (husband)

appeals the trial court's award of spousal support and attorney's

fees. On appeal, he contends the trial court erred by: (1) using

Code § 20-107.1 to determine an award of final spousal support

rather than Code § 20-109; (2) finding husband failed to prove

adultery as a bar to spousal support pursuant to Code § 20-91(1);

(3) finding husband had a greater degree of fault in the breakup

of the marriage; (4) finding wife was unable to work due to her

physical and mental disabilities; and (5) abused its discretion in

awarding an excessive amount of spousal support and attorney's

fees. Finding no error, we affirm.
 I. BACKGROUND

On appeal, we construe the evidence in the light most

favorable to wife, the prevailing party below, granting to that

evidence all reasonable inferences fairly deducible therefrom.

See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257

(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391

S.E.2d 344, 346 (1990)).

So viewed, the evidence established that the parties were

married on August 6, 1983 and separated June 27, 1994. There

were no children born of the marriage. Husband left the marital

home at wife's request. On March 6, 1997, a consent order was

entered by the Loudoun County Juvenile and Domestic Relations

District Court ordering $500 a month temporary spousal support.

The parties had no property settlement agreement but resolved

all issues prior to trial other than the grounds for divorce,

spousal support and attorney's fees. Neither husband nor wife

alleged a fault ground of divorce in their pleadings.

Husband, a truck driver, has an annual income of

approximately $41,000. He has lived with his girlfriend on and

off since the parties separated. During the marriage, the

relationship between husband and wife was replete with

allegations of physical and mental abuse on both sides. Husband

admitted to having physical altercations with wife during which

he broke her toe and ribs on one occasion and "mess[ed] her eye

all up" on another. Wife admitted she tried to stab husband and

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that there were problems throughout the marriage. Both drank

heavily. The trial court found "both parties have trouble

recalling the events" described above.

Wife did not work consistently during the marriage. At the

time of the trial, wife was unemployed and received social

security income of $32 per month plus food stamps of $117 per

month. She showed a monthly need of $1,381 per month. 1 While

the parties were living together, wife was involved in a serious

car accident in which she sustained a skull fracture and a large

laceration on her forehead. After extensive medical treatment

for the injuries sustained in the accident and her pre-existing

mental and physical problems, Dr. Richard T. Leschak diagnosed

her with chronic cognitive complaints due to a combination of

1) significant head injury with loss of consciousness,

2) medications which can affect cognitive functioning,

3) psychiatric problems that make her anxious and depressed, and

4) sleep disorder. Additional medical reports diagnosed her as

bipolar and suffering from hallucinations. She has congenital

bilateral hearing loss that requires hearing aids, has twice

been hospitalized for psychiatric problems and has attempted

suicide.

1
Wife received initial social security benefits of $512 per
month but because the existence of the spousal support order was
not revealed in her application for benefits, her payments were
reduced and she must repay $12,960.

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 Wife currently lives with Mike Woods and his mother in

Woods' mother's home. She rents two rooms. Prior to moving in

with Mr. Woods' mother, she was living with Mike Woods at a home

she rented. She admitted to having had sexual relations with

Woods two or three times after the parties separated. This

occurred after her hospitalization for a suicide attempt, and

she denied further relations.

In a letter opinion, dated December 6, 2000, the trial

court granted wife a divorce based on separation for more than

one year. The trial court analyzed husband's argument that the

initial determination of whether wife should receive spousal

support should be determined under Code § 20-109 rather than

Code § 20-107.1. He found that "[Code §] 20-109 deals with the

modification of final awards and not the situation [of the

determination of an initial support award]." 2 The trial court

then found that husband had not proven a ground for divorce

under Code § 20-91(1) that would be a bar to an award of spousal

support under Code § 20-107.1 and that the "respective degrees

of fault" weigh more heavily against husband. The trial court

also noted:

[h]ad this finding [a ground for divorce
under Code § 20-91(1) (adultery) that would

2
Appellant concedes that this is an initial determination
of spousal support because the consent order entered in the
Loudoun County Juvenile and Domestic Relations District Court
pursuant to Code § 16.1-241(L) is not "res judicata in any
subsequent action for spousal support in a circuit court."

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 be a bar to spousal support] been made, I
believe that there is clear and convincing
evidence that a denial of support and
maintenance would constitute a manifest
injustice, based upon the respective degrees
of fault during the marriage and the
relative economic circumstances of the
parties.

He then considered the requisite factors under Code

§ 20-107.1(E) in determining spousal support and found wife's

mental condition to be the substantial factor in the

determination of spousal support.

[W]ife has a very serious bi-polar [sic]
disorder and . . . she is absolutely unable
to be employed. She is not able to hold a
job in any capacity at this time or in the
future. She also has a neurological problem
and suffered a closed head injury from an
auto accident. She is severely,
chronically, malignantly afflicted with this
psychiatric disorder. She has extreme
depression and mania, including
hallucinations and delusions at times when
it is worse. She does not respond well to
medication. Her memory is very bad . . . .
[S]he suffers from a hypothyroid disorder, a
GI disorder, psychiatric illness, menopause
symptoms and elevated cholesterol . . . .
She has limited memory recall and hearing
loss.

* * * * * * *

The [wife] is in a desperate situation. She
has to rely on others to remind her to go to
her appointments. She receives food stamps,
limited SSI and has limited resources. She
suffers from a serious mental illness and
has cognitive difficulties. The fact that
she is able to go to the [bar] and dance and
consume alcohol that is contraindicated due
to her medication does not alter the fact
that she is almost totally dependent on her
husband and is unable to be employed. The

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 social security she received has now been
cut dramatically and she is in debt. She
lives a very modest life and has very modest
needs . . . . The circumstances of this
case do not permit an award that will meet
the wife's needs fully however I believe
that support should be fixed at $750.00 per
month effective December 1, 2000. The
attorney for the wife is awarded attorney
fees of $1500 to be paid within 180 days.

On husband's motion to reconsider, the trial judge amended

the grant of the divorce to wife and granted both parties a

divorce on the ground of separation for more than one year. The

final decree of divorce was entered April 2, 2001.

II. CODE §§ 20-109 AND 20-107.1(E)

Husband first contends that the trial court erred in

determining his spousal support obligation using Code § 20-107.1

rather than Code § 20-109. He argues that the language of

Code § 20-107.1(B), "any maintenance and support shall be

subject to the provisions of Code § 20-109," requires that the

final support award be governed by the additional dictates of

Code § 20-109. We disagree and hold that Code § 20-107.1

establishes the criteria to be used for the initial setting of

spousal support and that Code § 20-109 applies to a modification

of that award. The language relied upon by husband denotes only

that a final support award properly calculated using

Code § 20-107.1 factors is subject to later modification under

the criteria established in Code § 20-109.

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 "Where a statute is unambiguous, the plain meaning is to be

accepted without resort to the rules of statutory

interpretation." Last v. Virginia State Bd. of Med., 14 Va.

App. 906, 910, 421 S.E.2d 201, 205 (1992). "Unless a literal

construction of a statute would result in internally conflicting

provisions amounting to a manifest absurdity, courts cannot

construe a statute in a manner that would result in holding the

legislature did not mean what it actually expressed." Id. at

910, 421 S.E.2d at 205 (internal citations omitted). "[W]hen

analyzing a statute, we must assume that the legislature chose,

with care, the words it used when it enacted the relevant

statute, and we are bound by those words as we interpret the

statute." City of Virginia Beach v. ESG Enters., Inc., 243 Va.

149, 153, 413 S.E.2d 642, 644 (1992) (internal citations

omitted).

Code § 20-107.1 provides in pertinent part:

Court may decree as to maintenance and
support of spouses.

A. [U]pon the entry of a decree providing
(i) for the dissolution of a marriage, (ii)
for a divorce, whether from the bond of
matrimony or from bed and board, (iii) that
neither party is entitled to a divorce, or
(iv) for separate maintenance, the court
may . . . decree as it deems expedient
concerning the maintenance and support of
the spouses. However, the court shall have
no authority to decree maintenance and
support payable by the estate of a deceased
spouse.

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 Code § 20-107.1(B) provides:

Any maintenance and support shall be subject
to the provisions of § 20-109, and no
permanent maintenance and support shall be
awarded from a spouse if there exists in
such spouse's favor a ground of divorce
under the provisions of subdivision (1) of
§ 20-91. 3 However, the court may make such
an award notwithstanding the existence of
such ground if the court determines from
clear and convincing evidence, that a denial
of support and maintenance would constitute
a manifest injustice, based upon the
respective degrees of fault during the
marriage and the relative economic
circumstances of the parties.

(Footnote added.)

Code § 20-109 provides in pertinent part:

Changing Maintenance and support . . . .

A. Upon petition of either party the court
may increase, decrease, or terminate the
amount or duration of any spousal support
and maintenance that may thereafter accrue,
whether previously or hereafter awarded, as
the circumstances may make proper. Upon
order of the court based upon clear and
convincing evidence that the spouse
receiving support has been habitually
cohabiting with another person in a
relationship analogous to a marriage for one
year or more commencing on or after July 1,
1997, the court shall terminate spousal
support and maintenance . . . .

The statutory scheme established by the legislature is

well-established and authorizes three steps in determining a

3
The grounds for divorce listed in Code § 20-91(A)(1) are
adultery and sodomy or buggery committed outside the marriage.

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party's support obligation. Code § 20-103 4 provides for

temporary support during the pendency of the divorce proceedings

which may be awarded irrespective of a spouse's right to receive

final support following the dissolution of the marriage.

Code § 20-107.1 establishes the method to determine a final

support obligation and requires consideration of the thirteen

additional enumerated factors. Code § 20-109 is the designated

method to modify an already existing award. See Weizenbaum v.

Weizenbaum, 12 Va. App. 899, 407 S.E.2d 37 (1991).

Appellant contends that because Code § 20-107.1 references

Code § 20-109, the legislature must have intended to require a

court to consider cohabitation as well as adultery to bar an

initial award of support. Appellant cites no authority for this

proposition and concedes that Code § 20-109 has been applied

4
Code § 20-103 provides in pertinent part:

A. In suits for divorce, annulment and
separate maintenance, and in proceedings
arising under . . . subsection L of
§ 16.1-241, the court having jurisdiction of
the matter may, at any time pending a suit
pursuant to this chapter, in the discretion
of such court, make any order that may be
proper (i) to compel a spouse to pay any
sums necessary for the maintenance and
support of the petitioning spouse, . . . .

* * * * * * *

E. An order entered pursuant to this
section shall have no presumptive effect and
shall not be determinative when adjudicating
the underlying cause.

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only to modification of a final award. See Pellegrin v.

Pellegrin, 31 Va. App. 753, 525 S.E.2d 611 (2000) (final decree

and property settlement agreement entered 1991 and pursuant to

Code § 20-109, husband requested modification of his spousal

support because wife was cohabiting with another); Rubio v.

Rubio, 33 Va. App. 440, 534 S.E.2d 336 (2000) (en banc) (final

decree and property settlement agreement entered in 1994 and in

1999 and pursuant to Code § 20-109 husband alleged wife was

living in a relationship analogous to marriage and asked that

spousal support be terminated); Hering v. Hering, 33 Va. App.

368, 533 S.E.2d 368 (2000) (final decree and property settlement

agreement entered in 1995 and pursuant to Code § 20-109, husband

alleged wife was living in a relationship analogous to marriage

and asked that spousal support be terminated); Lane v. Lane, 32

Va. App. 125, 526 S.E.2d 773 (2000) (final decree and property

settlement agreement entered in 1988 and pursuant to Code

§ 20-109, husband requested modification of spousal support

which trial court found could be modified under Code § 20-109

but circumstances did not warrant a change); and Blackburn v.

Michael, 30 Va. App. 95, 515 S.E.2d 780 (1999) (parties were

divorced by decree that incorporated their property settlement

agreement and pursuant to Code § 20-109, husband requested a

reduction in his spousal support).

The plain language of Code § 20-109(A), "the court may

increase, decrease or terminate the amount . . . of spousal

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support," belies husband's contention. This language

presupposes the existence of a final award which is subject to

later modification if the additional criteria of Code § 20-109

are met. Additionally, adultery as referenced in Code

§§ 20-107(1) and 20-91(1) can be committed only by a party prior

to the dissolution of the marital relationship, while

cohabitation as referenced in Code § 20-109 refers only to the

status of an unmarried person. 5

Thus, we agree with the trial court that wife's request for

spousal support was properly determined by using the criteria of

Code § 20-107.1. 6

III. ADULTERY

Appellant next contends the trial court erred in finding

that he failed to prove post-separation adultery as a bar to

spousal support. Assuming, without deciding, that husband

proved adultery, ample evidence supports the trial court's

5
Adultery is defined as "[v]oluntary sexual intercourse of
a married person with a person other than the offender's husband
or wife." Black's Law Dictionary 47 (5th ed. 1979) (emphasis
added). Cohabitation is defined as "[t]he mutual assumption of
those marital rights, duties and obligations which are usually
manifested by married people, including but not necessarily
dependent on sexual relations." Black's, supra, 236.
6
Because of our holding on this issue, we do not address
husband's additional assignment of error that the evidence
established that "wife was cohabiting in a relationship
analogous to marriage" under Code § 20-109.

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finding that under Code § 20-107.1(B) denial of support and

maintenance would constitute a manifest injustice.

"On appeal, the trial court's findings must be accorded

great deference. In determining whether credible evidence

exists, the appellate court does not retry the facts, reweigh

the preponderance of the evidence, or make its own determination

of the credibility of the witnesses. We will not disturb the

trial court's decision where it is based on an ore tenus

hearing, unless it is plainly wrong or without evidence in the

record to support it." Moreno v. Moreno, 24 Va. App. 190, 195,

480 S.E.2d 792, 795 (1997) (internal citations omitted).

The evidence established that wife suffered from severe

physical and mental problems throughout the marriage. She was

unable to work and in a "desperate situation" with no evidence

to suggest possible improvement. Husband argues that the

evidence showed that wife was equally at fault for the

dissolution of the marriage and, thus, the exception should not

apply. Credible evidence also supports the trial court's

finding that the respective degrees of fault weighed against

husband. Both drank heavily, fought with each other, and had

relationships with other parties prior to the divorce. While

the parties admitted to egregious behavior during the course of

the marriage, the trial court evaluated the testimony and

determined that husband's actions were more detrimental.

Credible evidence supports this finding.

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 IV. WIFE'S UNEMPLOYMENT

"Decisions concerning . . . [spousal] support rest within

the sound discretion of the trial court and will not be reversed

on appeal unless plainly wrong or unsupported by the evidence."

Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876

(1994). "The weight which should be given to evidence . . . [is

a] question which the trier of fact must decide." Luczkovich v.

Luczkovich, 26 Va. App. 702, 715, 496 S.E.2d 157, 163 (1998)

(citations omitted).

Husband next contends the trial court erred in finding wife

to be unemployable due to her physical and mental disabilities.

This contention is without merit. Wife's treating physician,

Dr. Jane B. Terry, testified that wife was unable to work

because of her physical and mental disabilities and the effects

of her required medication. Husband's reliance on testimony by

a nurse practitioner that wife could do some part-time work does

not compel a different finding. Credible evidence supports the

trial court's finding that wife is unemployable.

V. SPOUSAL SUPPORT AND ATTORNEY'S FEES

Lastly, husband contends the trial court erred in awarding

an excessive amount of spousal support and attorney's fees to

wife.

"In awarding spousal support, the [trial court] must

consider the relative needs and abilities of the parties. [It]

is guided by the . . . factors that are set forth in

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Code § 20-107.1. When the [trial court] has given due

consideration to these factors, [its] determination will not be

disturbed on appeal except for clear abuse of discretion."

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986).

"'In fixing the amount of the spousal support award, . . .

the court's ruling will not be disturbed on appeal unless there

has been a clear abuse of discretion. We will reverse the trial

court only when its decision is plainly wrong or without

evidence to support it.'" Moreno, 24 Va. App. at 194-95, 480

S.E.2d at 794 (quoting Gamble v. Gamble, 14 Va. App. 558, 574,

421 S.E.2d 635, 644 (1992)).

"An award of attorney's fees and costs is a matter

submitted to the trial court's sound discretion and is

reviewable on appeal only for abuse of discretion." 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." Lightburn v.

Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996).

Husband earns approximately $41,000 per year. Wife

receives $384 in social security income and $1,400 in food

stamps per year. She showed a monthly deficit of $1,381. The

trial court ordered $750 per month in spousal support, thus

giving wife a yearly income of approximately $9,000. The amount

awarded is not excessive when wife's unemployment and physical

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and mental disabilities are considered. The total amount of

wife's attorneys' fees was approximately $15,000, and the trial

court awarded $1,500. In the instant case, there is no evidence

the trial court abused its discretion.

VI. ATTORNEY'S FEES FOR APPEAL

Wife has requested attorney's fees for matters relating to

this appeal. Upon consideration of the entire record in this

case, we hold that wife is entitled to a reasonable amount of

additional attorney's fees, and we remand for an award of further

costs and counsel fees incurred in this appeal.

For the foregoing reasons, we affirm the trial court and

remand for consideration of counsel fees on appeal.

Affirmed and remanded.

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