Brian Patrick Calvin v. Elizabeth Jane Calvin ( 1999 )


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  •                         COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
    Argued at Chesapeake, Virginia
    BRIAN PATRICK CALVIN
    OPINION BY
    v.   Record No. 0384-99-1               JUDGE JERE M. H. WILLIS, JR.
    DECEMBER 21, 1999
    ELIZABETH JANE CALVIN
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Everett A. Martin, Jr., Judge
    Stephen Merrill (Ghent Law Offices, on
    brief), for appellant.
    No brief or argument for appellee 1 .
    On appeal from a final divorce decree, Brian Patrick Calvin
    contends that the trial court erred in (1) awarding substantial
    spousal support to a spouse who has committed adultery in the
    absence of a showing of fault by the payor spouse, (2)
    calculating the amount of spousal support payments, and (3)
    allowing the taking of additional evidence following completion
    of the record.   Because we find no abuse of discretion, we
    affirm the judgment of the trial court.
    1
    Appellee filed no brief. Shortly before the date
    scheduled for oral argument, appellee moved to be permitted to
    argue orally. No good cause being shown for appellee's failure
    to file a brief, the motion is denied. See Rule 5A:26.
    I.    Background
    "On appeal, we review the evidence in the light most
    favorable to the prevailing party below . . . .     Where the
    record contains credible evidence in support of the findings
    made by that court, we may not retry the facts or substitute our
    view of the facts for those of the trial court."      Ferguson v.
    Stafford County Dep't of Social Servs., 
    14 Va. App. 333
    , 336,
    
    417 S.E.2d 1
    , 2 (1992) (citation omitted).
    Brian Patrick Calvin and Elizabeth Jane Calvin were married
    on May 3, 1986.   They have two sons, one born of the marriage
    and one born to Mrs. Calvin and adopted by Mr. Calvin.     The
    couple separated permanently in August 1994.     Mrs. Calvin sued
    for divorce on the ground of desertion.      Mr. Calvin filed a
    cross-bill alleging adultery.    The commissioner found that Mrs.
    Calvin was vindictive and cruel to Mr. Calvin, that she
    destroyed the couple's property at Mr. Calvin's expense, and
    that she committed adultery.    The commissioner recommended that
    a divorce be granted to Mr. Calvin on the ground of Mrs.
    Calvin's adultery.
    On Mrs. Calvin's motion, the trial court re-referred the
    case to the commissioner, who heard new evidence concerning Mrs.
    Calvin's back surgery and its effects on her employment.     Mrs.
    Calvin testified that she had trouble obtaining new employment
    and that she could not afford health insurance.     On September 1,
    1998, the commissioner supplemented his original report with a
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    recommendation that Mr. Calvin be ordered to pay a lump sum of
    $10,080 in spousal support.    The trial court affirmed the
    commissioner's findings.    On January 22, 1999, it granted Mr.
    Calvin a divorce on the ground of adultery.    Ruling that the
    denial of spousal support to Mrs. Calvin "would be a manifest
    injustice given her health condition, her reliance during the
    marriage on the financial support of [Mr. Calvin] and her
    present lack of health insurance coverage," the trial court
    ordered Mr. Calvin to pay Mrs. Calvin $10,080 lump sum spousal
    support over a three year period. 2
    II.   Taking of Additional Evidence
    We first consider whether the trial court erred in ordering
    the commissioner to reconsider an award of spousal support.
    Mrs. Calvin presented new evidence regarding her health problems
    and their effect on her ability to work and to secure health
    insurance coverage.    The commissioner heard new evidence on this
    issue only.   He reported that Mrs. Calvin's health had
    deteriorated following the initial hearing and that her
    inability to work full time and to obtain health insurance
    required an award of spousal support to avoid a manifest
    injustice.    The evidence supports that finding.
    2
    The parties have not questioned on appeal whether the
    circumstances in this case justify the trial court's decision to
    award alimony as a lump sum. See Blank v. Blank, 
    10 Va. App. 1
    ,
    5-6, 
    389 S.E.2d 723
    , 725-26 (1990). Therefore, we do not
    address that issue.
    - 3 -
    Mr. Calvin contends that the re-referral and taking of
    further evidence was error.   "The granting or denying of a
    motion to hear additional evidence is within the sound
    discretion of the trial court."    Rowe v. Rowe, 
    24 Va. App. 123
    ,
    144, 
    480 S.E.2d 760
    , 770 (1997) (citing Morris v. Morris, 3 Va.
    App. 303, 307, 
    349 S.E.2d 661
    , 663 (1986)).     The evidence at
    issue addressed whether a denial of spousal support would
    "constitute a manifest injustice."      See Code § 20-107.1.
    Finding no abuse of discretion, we affirm the trial court's
    determination that new evidence on this subject should be
    considered.
    III.    Spousal Support
    Mr. Calvin contends that the trial court erred in awarding
    Mrs. Calvin spousal support because the divorce was granted on
    the ground of her adultery.   He argues further that the amount
    of the spousal support was erroneous.
    [N]o 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. 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.
    Code § 20-107.1(B).
    - 4 -
    Generally, a spouse who commits adultery is not entitled to
    spousal support.    However, we have previously ruled as follows:
    While the husband correctly argues that Code
    § 20-107.1 identifies adultery as the single
    fault ground for divorce which precludes
    "permanent maintenance and support" to the
    offending spouse, this limitation is not
    absolute. Notwithstanding a finding of
    adultery, a court "may award" spousal
    support, provided "the court determines from
    clear and convincing evidence, that a denial
    of . . . [such support] would constitute a
    manifest injustice, based upon the
    respective degrees of fault during the
    marriage and the relative economic
    circumstances of the parties."
    Williams v. Williams, 
    14 Va. App. 217
    , 220-21, 
    415 S.E.2d 252
    ,
    254 (1992) (citation omitted).
    The respective degrees of fault in this case weigh heavily
    in favor of Mr. Calvin.   Therefore, any "manifest injustice"
    resulting from a denial of spousal support must derive from the
    "relative economic circumstances of the parties."   Mrs. Calvin
    testified clearly and without contradiction at the supplemental
    commissioner's hearing that she had undergone back surgery and
    had lost her job.   Although she admitted that at the time of the
    hearing she had found other employment, her job was part-time
    and provided less income than her previous employment.   She
    testified that she could neither secure health insurance through
    her employment, nor afford it on her own.
    The commissioner reported that "Mrs. Calvin's health has
    deteriorated since [the initial hearing]. . . .   Given Mrs.
    - 5 -
    Calvin's medical history, her current medical condition which
    requires continued medical treatment, her lack of health
    insurance, and the fact that Mr. Calvin has almost wholly
    supported her during the marriage, [the] commissioner finds that
    a denial of spousal support would constitute a 'manifest
    injustice' under . . . Code § 20-107.1."      The commissioner
    recommended an award of $10,080 support payable to Mrs. Calvin
    over a three year period "in order to provide [her] with funding
    sufficient to cover her medical expenses and adequate time in
    which to procure medical benefits and full time employment."
    Overruling Mr. Calvin's exception, the trial court accepted this
    recommendation.   Clear and convincing evidence supports that
    decision.
    "In regard to the amount of the spousal support award, we
    will reverse an award on that basis only for an abuse of
    discretion or the judge's failure to consider all the factors
    set forth in Code § 20-107.1."     Barnes v. Barnes, 
    16 Va. App. 98
    , 103, 
    428 S.E.2d 294
    , 298 (1993) (citation omitted).      "The
    determination whether a spouse is entitled to support, and if so
    how much, is a matter within the discretion of the trial 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).
    The award of spousal support "'will not be disturbed except
    for a clear abuse of discretion.'"       Dodge v. Dodge, 2 Va. App.
    - 6 -
    238, 246, 
    343 S.E.2d 363
    , 367 (1986) (citation omitted).   We
    find no such abuse.   Credible evidence in the record establishes
    that the amount of support ordered is consistent with Mrs.
    Calvin's needs and Mr. Calvin's ability to pay.
    The judgment of the trial court is affirmed.
    Affirmed.
    - 7 -
    

Document Info

Docket Number: 0384991

Judges: Willis

Filed Date: 12/21/1999

Precedential Status: Precedential

Modified Date: 11/15/2024