COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
LOTHAR W. NASS
MEMORANDUM OPINION * BY
v. Record No. 1882-00-1 JUDGE RICHARD S. BRAY
APRIL 10, 2001
ARLENE WOLIN NASS
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
G. Michael Price (Connor & Price, P.C., on
brief), for appellant.
Janice Pickrell Anderson (Kellam, Pickrell,
Cox & Tayloe, P.C., on brief), for appellee.
Lothar W. Nass (husband) and Arlene Wolin Nass (wife) were
divorced by decree of the trial court entered July 5, 2000.
Husband appeals, complaining the trial court erroneously awarded
wife a divorce "on fault grounds," denied him spousal support and
determined the former residence of the parties was not a marital
asset, wasted by wife. Finding the court incorrectly refused to
decree the divorce pursuant to Code § 20-91(A)(9), notwithstanding
a motion in accordance with Code § 20-121.02, we remand solely for
appropriate amendment of the decree. In all other particulars, we
find no error and affirm the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Guided by well established principles, we consider the
evidence most favorably to the prevailing party below, wife in the
instant appeal. Cook v. Cook, 18 Va. App. 726, 731, 446 S.E.2d
894, 896 (1994). "'While the report of a commissioner in chancery
does not carry the weight of a jury's verdict, . . . it should be
sustained unless the trial court concludes that the commissioner's
findings are not supported by the evidence.'" Kelker v. Schmidt,
34 Va. App. 129, 137, 538 S.E.2d 342, 346 (2000) (citation
omitted). "'Once adopted by the chancellor, . . . actions,
findings and recommendations of the commissioner become those of
the . . . court and are due considerable deference on appeal.'"
Id. (citation omitted). Thus, "a decree that has confirmed a
commissioner's report . . . will be affirmed unless plainly
wrong." Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886
(1987).
The relevant facts are substantially uncontroverted. The
parties married on February 28, 1976, no children were born to
the marriage, and they separated on March 18, 1996. Husband
thereafter instituted suit for divorce from bed and board
pursuant to Code § 20-95, alleging that a series of violent
assaults upon him by wife on the day of separation constituted
"cruelty and constructive desertion," and seeking, inter alia,
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equitable distribution and spousal support. In responsive
pleadings, wife denied any wrongdoing and, by cross-bill,
likewise accused husband of "cruelty" resulting from a violent
assault, followed by "desertion," on March 18, 1996, and prayed
for relief pursuant to Code § 20-107.3 and otherwise.
I. The Divorce
Wife proceeded on her cross-bill before a commissioner in
chancery designated by the trial court. Following extensive ore
tenus hearings, the commissioner reported that wife's
corroborated testimony "revealed that . . . [husband], on March
18, 1996, assaulted and generally physically abused [her],
causing her to . . . fear . . . further injury." The
commissioner, therefore, concluded husband was then "guilty of
conduct toward [wife] constituting cruelty tantamount to
constructive desertion," which resulted in "continuous and
uninterrupted [separation] ever since," a period in excess of
one year. Accordingly, the commissioner recommended a "decree
be entered . . . granting . . . [wife] . . . a divorce A Vinculo
Matrimonii" from husband, "upon the grounds . . . of
constructive desertion" on March 18, 1996.
In exceptions to the commissioner's report, husband
contended wife had "elected to go forward on a no-fault
grounds," with husband's "acquiescence," in accordance with Code
§ 20-121.02. In support of his assertion, husband relied upon
the commissioner's comments on the second day of hearings: "I'm
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told that the last time we were here we resolved the fault
grounds. The divorce will be obtained on no fault grounds, put
. . . another way." The court, however, overruled husband's
exceptions and granted wife a divorce a vinculo matrimonii "on
the grounds that [husband] deserted [her] on" March 18, 1996.
On appeal, husband contends the court erroneously granted
"a divorce on fault grounds," "[i]n the face of the agreement of
the parties that the divorce would be on no fault grounds only."
Wife does not dispute the concurrence of the parties in a motion
before the commissioner to proceed on no fault grounds, but,
because the evidence established fault, finds no error in the
report and attendant decree.
Code § 20-121.02, provides in pertinent part,
In any divorce suit wherein a bill of
complaint or cross-bill prays for a divorce
. . . from bed and board under § 20-95, at
such time as there exists in either party's
favor grounds for a divorce from the bonds
of matrimony under § 20-91(9), either party
may move the court wherein such divorce suit
is pending for a divorce from the bonds of
matrimony on the grounds set out in
§ 20-91(9) without amending the bill of
complaint or cross-bill.
Code § 20-91(A)(9) authorizes "[a] divorce from the bond of
matrimony . . . [o]n application of either party if and when the
husband and wife have lived separate and apart without any
cohabitation and . . . interruption for one year."
Here, the record confirms a timely motion by one or both
parties, pursuant to Code § 20-121.02, to obtain the divorce in
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accordance with the provisions of Code § 20-91(A)(9), together
with sufficient evidence to support such relief. Nevertheless,
the commissioner and trial court disregarded the motion,
resulting in an inconsistent recommendation and decree. Under
such circumstances, husband is entitled to an amendment in the
decree, awarding wife a no fault divorce pursuant to Code
§ 20-91(A)(9).
II. Spousal Support
Code § 20-91(A)(9)(c) provides, inter alia, that "[a]
decree of divorce granted pursuant to [Code § 20-91(A)(9)] shall
in no way lessen any obligation any party may otherwise have to
support the spouse unless such party shall prove [the]
exist[ence] in favor of such party some other ground of divorce
. . . ." Thus, spousal support remains an issue in the subject
cause, and husband complains the court erroneously denied him
such relief.
"Whether and how much spousal support will be awarded is a
matter of discretion for the trial court." Barker v. Barker, 27
Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). In resolving the
issue, the court "shall consider the circumstances and factors
which contributed to the dissolution of the marriage,
specifically including adultery and any other ground for divorce
under . . . subdivision (3) or (6) of § 20-91 or § 20-95." Code
§ 20-107.1(E). However, "[t]he statute fails to specify how
such grounds or circumstances are to be considered in making
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such a threshold determination." 1 Peter N. Swisher et al.,
Virginia Family Law § 9-4(a) n.3 (2d ed. 1997). Once an award
is deemed appropriate, the court must consider those factors
enumerated in Code § 20-107.1 in "determining the nature, amount
and duration" of such relief. Code § 20-107.1(E). A decision
by the trial court with respect to both entitlement to spousal
support and specifics of the award "'will not be disturbed on
appeal unless it is clear that some injustice has been done.'"
Calvin v. Calvin, 31 Va. App. 181, 186, 522 S.E.2d 376, 379
(1999).
The instant record establishes egregious conduct by husband
toward wife, in the absence of marital fault by her. Without
recounting the evidence, his violent assault suggested
life-threatening consequences for wife. Code § 20-107.1(E)
clearly permits the court, after weighing and considering
husband's misconduct, the precipitative event in the separation,
and related evidence, from concluding that he was not entitled
to spousal support. Accordingly, we find no abuse of
discretion.
1
"'Code § 20-107.1(B) identifies adultery as the single
fault ground for divorce which precludes "permanent maintenance
and support" to the offending spouse, [but] this limitation is
not absolute.'" Calvin v. Calvin, 31 Va. App. 181, 185, 522
S.E.2d 376, 378 (1999) (citation omitted).
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III. The Former Residence
Lastly, husband complains the court erroneously decreed
"the former marital house is not a marital asset nor considered
a waste asset subject to . . . equitable distribution."
Assuming, without deciding, that husband's evidence supported
classification of the parties' former residence as marital
property, complemented by related evidence necessary to a
monetary award pursuant to Code § 20-107.3, the record clearly
fails to establish waste.
Waste or dissipation of marital assets "occurs 'where one
spouse uses marital property for his own benefit and for a
purpose unrelated to the marriage at a time when the marriage is
undergoing an irreconcilable breakdown.'" Smith v. Smith, 18
Va. App. 427, 430, 444 S.E.2d 269, 272 (1994) (citation
omitted). Thus, "[o]ur case law uniformly holds that the
challenged use of funds must be 'in anticipation of divorce or
separation . . . [and] at a time when the marriage is in
jeopardy,'" with the burden of proof resting upon the aggrieved
spouse. Id. (citations omitted).
As reported by the commissioner and reflected in the
disputed decree, the record establishes that a sudden, explosive
event, which occurred on March 18, 1996, resulted in an
"irreconcilable breakdown" in the marriage, several months after
wife conveyed the realty in issue to husband's daughter. Such
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evidence failed to establish the contemporaneous marital discord
requisite to the doctrine of waste.
Accordingly, we reverse the award of divorce to wife from
husband upon the ground of desertion and remand the proceedings
to the trial court solely to permit amendment of the decree to
provide relief pursuant to Code § 20-91(A)(9). We, otherwise,
affirm the decree in all particulars.
Affirmed in part and
reversed and remanded
in part.
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