COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
ERIC L. BYROM
MEMORANDUM OPINION *
v. Record No. 2174-97-4 PER CURIAM
MARCH 10, 1998
BETTY JEAN LAYNE-BYROM
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
(Bobby B. Stafford; Kathryn E. Coward; The
Law Offices of Raby & Stafford, on brief),
for appellant.
(Robert M. Alexander, on brief), for
appellee.
Eric L. Byrom (husband) appeals the decision of the circuit
court awarding Betty Jean Layne-Byrom (wife) a divorce on the
basis of desertion. Husband contends that the trial court erred
in (1) finding him guilty of deserting the marriage; (2) finding
that he was not legally justified in leaving the marital home;
and (3) granting wife spousal support. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
Desertion
Husband contends that the trial court erred when it found
that the parties reconciled after a fight in May or June 1994 and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that he subsequently deserted the marriage. Wife was required to
prove husband's desertion by a preponderance of the evidence.
See Bacon v. Bacon, 3 Va. App. 484, 488-90, 351 S.E.2d 37, 40-41
(1986). We find that the trial court's decision is supported by
credible evidence.
Husband left the marital home following an incident in which
wife slapped him as he talked on the telephone to another woman.
According to husband's testimony, wife took a loaded gun which
the parties kept by the bedside, hid it, and would not tell him
where it was located. While husband's testimony painted wife as
the aggressor, he admitted that wife told her daughter to call
the police and that the police took the weapons out of the house
and told husband to leave. While husband testified that he was
afraid that wife might harm him, he admitted that he returned to
the marital home voluntarily after wife's daughter was killed in
a car accident in October 1994. Husband denies that the parties
reconciled at that point, but the evidence established that the
parties stayed together in the marital home for four months,
resumed sleeping together, and, at husband's suggestion, began
marital counseling. Therefore, the evidence supports a finding
of reconciliation.
After staying in the marital home for four months, husband
elected to discontinue marital counseling and left the home,
knowing that wife did not want him to go. The trial court was
entitled to determine whether husband's testimony that he feared
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for his safety at that time was credible. Sufficient evidence
supported the trial court's finding that husband deserted the
marriage.
Husband contends that the trial court applied an erroneous
standard to his claim of justification for leaving the marital
home by requiring him to prove that he took all reasonable steps
to address his concerns before leaving. "[A] party may be
justified in leaving a marital abode even if grounds of divorce
do not exist and may do so without committing desertion." Kerr
v. Kerr, 6 Va. App. 620, 624, 371 S.E.2d 30, 33 (1988).
[L]eaving the marital home is justified when
a spouse's conduct creates conditions so
intolerable that the other spouse cannot
reasonably be expected to remain in the home.
This justification may exist even if the
conduct of the leaving spouse "may have
contributed in some measure to the marital
difficulties" so long as the other spouse's
conduct is disproportionate to any
provocation.
Id. (citations omitted). Husband bore the burden to prove that
his departure was justified. See Brawand v. Brawand, 1 Va. App.
305, 310, 338 S.E.2d 651, 653-54 (1986).
The trial court found no evidence that husband's action in
leaving the marital home after the reconciliation was justified.
Husband admitted that there were weapons back in the home. He
indicated that he felt wife was unstable because she was taking
medication for depression and because sometimes he would awaken
and find her looking at him. No evidence supports the conclusion
that wife's conduct was so intolerable as to give husband no
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alternative but to leave the marital home. Husband's purported
justification for his departure is not supported by the evidence.
Assuming without deciding that the trial court erred by
requiring husband to prove he took all reasonable steps to
address his concerns, we find that error to be harmless in light
of the lack of evidence that husband's departure was justified by
intolerable conditions in the marriage.
Spousal Support
Husband contends that the trial court erred in awarding
spousal support to wife because wife did not need additional
financial support and because wife's misconduct significantly
contributed to husband's desertion. We find no support for
husband's contentions.
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
court and will not be disturbed on appeal unless it is clear that
some injustice has been done." Dukelow v. Dukelow, 2 Va. App.
21, 27, 341 S.E.2d 208, 211 (1986).
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
Husband contends that wife's independent earnings negate her
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need for $300 in monthly spousal support. Husband did not
challenge the reasonableness of wife's claimed expenses. The
evidence established that wife's standard of living had
diminished and that her expenses exceeded her income by
approximately $500 a month. We find no abuse of discretion in
the trial court's award of spousal support.
Husband also contends that the trial court erred in awarding
wife any support because her misconduct significantly contributed
to the dissolution of the marriage. Fault may be considered when
a court decides whether to award spousal support. See Code
§ 20-107.1. The trial court did not find wife at fault in the
breakdown of the marriage. Therefore, we find no error in the
trial court's decision to award her support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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