COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia
BRIAN LEE WINEBARGER
MEMORANDUM OPINION * BY
v. Record No. 2913-02-1 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 12, 2003
SANDRA SULIK WINEBARGER
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge
Breckenridge Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellant.
No brief or argument for appellee.
Brian Lee Winebarger (husband) appeals a reservation of
spousal support to Sandra Sulik Winebarger (wife) in a divorce
proceeding. Husband contends: (1) the trial court improperly
reserved spousal support to wife given a finding of adultery on
the part of wife; and (2) wife failed to prove by clear and
convincing evidence that, despite her adultery, a denial of
support and maintenance would constitute a manifest injustice
based upon the parties' respective degrees of fault during the
marriage and their relative economic circumstances. The two
questions raise a single issue, which is whether the trial court
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erred in reserving spousal support to wife. For the reasons
that follow, we reverse the judgment of the trial court.
I. BACKGROUND
The parties were married on December 23, 1975. One child
was born of the marriage in 1989. On April 16, 2001, after 26
years of marriage, and without warning to husband, wife left the
marital residence and moved into a motel in Newport News. Wife
filed a Bill of Complaint for divorce on April 17, 2001. When
husband found wife at the motel, she told him that their
marriage was over. Husband filed an Answer and Cross-Bill for
divorce on May 15, 2001.
A pendente lite hearing was held on July 13, 2001, at which
wife admitted that she was living with a man named Charles
Thomas and that they had engaged in sexual relations prior to
the hearing. About a year later, on June 11, 2002, wife failed
to answer within the specified time a Request for Admissions
sent by husband. As a result, wife was deemed to have admitted
that she had lived with Thomas since April 2001, that they had
regularly engaged in sexual relations since that time, and that
she had deserted husband on April 16, 2001. In deposition
testimony on July 10, 2002, wife again admitted to living with
Thomas and admitted that they had engaged in sexual relations
after the parties had separated.
On July 30, 2002, the trial court heard evidence with
regard to the grounds of divorce, equitable distribution and
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spousal support. Prior to the hearing, husband filed proffers
in accordance with Code §§ 20-107.1, 20-107.3, and 20-124.3.
Wife did not file any proffers. Fault issues were addressed by
deposition testimony, which was introduced into evidence at
trial. Husband testified at trial and introduced exhibits.
Wife did not testify nor introduce any exhibits.
By letter opinion dated September 23, 2002, the trial judge
held that husband was entitled to a divorce on the grounds that
wife deserted the marriage. He found that wife's adultery did
not constitute a bar to spousal support, but that wife's claim
for such was reserved. The judge further stated that in the
absence of evidence on wife's needs, living or working
arrangements or opportunities, an award of spousal support would
require unacceptable speculation. A decree of divorce, which
incorporated the letter opinion, was entered October 25, 2002,
to which husband objected regarding reservation of spousal
support.
II. ANALYSIS
"'Whether and how much spousal support will be awarded is a
matter of discretion for the trial court.'" Northcutt v.
Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)
(quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240,
244 (1998)). On appeal, a trial court's decision on spousal
support will not be reversed "'unless there has been a clear
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abuse of discretion.'" Id. (quoting Moreno v. Moreno, 24
Va. App. 190, 194-95, 440 S.E.2d 792, 794 (1997)).
An abuse of discretion can be found if the trial court uses
"an improper legal standard in exercising its discretionary
function." Thomas v. Commonwealth, 263 Va. 216, 233, 559 S.E.2d
652, 661 (2002). A trial court, "'by definition abuses its
discretion when it makes an error of law.'" Shooltz v. Shooltz,
27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon
v. United States, 518 U.S. 81, 100 (1996)). An abuse also
exists if the trial court makes factual findings that are
plainly wrong or without evidence to support them. Code
§ 8.01-680; Northcutt, 39 Va. App. at 196, 571 S.E.2d at 914.
This standard applies to a "trial court's decision to award
spousal support to a party despite his or her adultery" as it
does to any other domestic relations case. Rahbaran v.
Rahbaran, 26 Va. App. 195, 212, 494 S.E.2d 135, 143 (1997).
Code § 20-107.1(B) provides that "no permanent maintenance
and support shall be awarded from a spouse if there exits in
such spouse's favor a ground of divorce under the provisions of
subdivision (1) of § 20-91," which provisions include adultery.
In determining whether a party is eligible for spousal support,
"the court must determine whether either of the parties is
barred from receiving support due to the existence of a marital
fault amounting to a statutory ground for divorce." Thomasson
v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66 (1983);
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Dukelow v. Dukelow, 2 Va. App. 21, 26, 341 S.E.2d 208, 210
(1986). But, even where such a marital fault exists, the
statute provides a narrow exception that reads:
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.
Code § 20-107.1(B). Application of the exception requires: (1)
that the evidence must rise to the level of clear and convincing
proof; (2) that there must be a finding of manifest injustice;
and (3) in determining whether there is a manifest injustice
that the trial court consider (a) the relative degree of fault
of each party and (b) the economic disparities between the
parties. Barnes v. Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294,
298 (1993); see Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d
833 (2003) (clarifying Calvin v. Calvin, 31 Va. App. 181, 186,
522 S.E.2d 376, 378 (1999)).
In this case, the judge acknowledged that wife committed
adultery, a marital fault that amounts to a statutory ground for
divorce under Code § 20-91(1). Therefore, in order for wife to
be entitled to spousal support, it was necessary for the court
to find by clear and convincing evidence that a denial would
constitute a manifest injustice, as contemplated by the
exception provided in Code § 20-107.1(B). However, the court
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failed to address either the relative degree of fault of each
party or the economic disparities between the parties, as
required by the statute and Barnes.
With regard to fault, the court found that wife deserted
the marriage, which entitled husband to a divorce on those
grounds. Wife admitted to committing adultery. The court made
no assignment of fault on the part of the husband. Yet, when
reserving spousal support to the wife, the court did not compare
the degrees of fault on the part of husband and wife. The judge
summarily concluded, "The [c]ourt does not consider that
[w]ife's adultery constitutes a bar to an award."
With regard to the economic disparities between the
parties, the court wrote, "While given the length of the
marriage, and disparity in incomes, an award might be otherwise
warranted, there is insufficient evidence upon which to base an
award. Wife filed no proffers and presented no acceptable
evidence regarding her needs, her present living and working
arrangements or her opportunities." Consequently, there was
certainly no evidence that rose to the level of clear and
convincing proof that a denial of spousal support and
maintenance would constitute a manifest injustice, and the court
never found such. Therefore, the exception provided in Code
§ 20-107.1(B) cannot apply.
The trial court was plainly wrong and without supportive
evidence in reserving spousal support. Adultery bars an award
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of support unless the narrow exception of Code § 20-107.1(B)
applies. The trial court did not find by clear and convincing
evidence that a denial of support would constitute a manifest
injustice. Accordingly, this Court reverses the trial court's
decision reserving spousal support to wife.
Reversed and final judgment.
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