Jerry Rancis Bass, Sr. v. Sherry Yvonne Bass ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
JERRY FRANCIS BASS, SR.
MEMORANDUM OPINION *
v. Record No. 1657-98-1 PER CURIAM
APRIL 20, 1999
SHERRY YVONNE BASS
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
(John D. Eure, Jr., on brief), for appellant.
No brief for appellee.
Jerry Francis Bass, Sr., (husband) appeals the decision of
the circuit court granting Sherry Yvonne Bass (wife) a divorce
under Code § 20-91(9) on the ground that the parties lived
separate and apart for more than one year. Husband contends
that the trial court erred by (1) failing to award him a divorce
on the ground that wife deserted the marriage; and (2) awarding
wife spousal support. Upon reviewing the record and opening
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Grounds for Divorce
The parties submitted evidence by depositions taken before
a commissioner in chancery. "A decree based on testimony in
deposition form, while presumed to be correct, is not given the
same weight as one where the evidence is heard ore tenus by the
chancellor." Moore v. Moore, 212 Va. 153, 155, 183 S.E.2d 172,
174 (1971). However, "'the decree is presumed to be correct and
should not be disturbed for lack of proof if the controlling
factual conclusions reached are sustained by a fair
preponderance of the evidence.'" Nash v. Nash, 200 Va. 890,
898-99, 108 S.E.2d 350, 356 (1959) (citations omitted).
Based upon the depositions, the trial court ruled that both
parties established grounds for divorce based upon a one-year
separation, but that neither party proved fault-based grounds.
While husband did not plead adultery as a ground for divorce, he
attempted to establish that wife left the marriage because she
was involved in an extra-marital affair. The trial court did
not find that husband proved this allegation by a preponderance
of the evidence. We cannot say that the trial court erred in
finding the evidence insufficient to prove wife deserted the
marriage.
Even assuming arguendo that husband presented evidence
sufficient to prove desertion, a trial court is "not compelled
'to give precedence to one proven ground of divorce over
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another.'" Williams v. Williams, 14 Va. App. 217, 220, 415
S.E.2d 252, 253 (1992) (citation omitted). "It is well
established that 'where dual or multiple grounds for divorce
exist, the trial judge can use his sound discretion to select
the grounds upon which he will grant the divorce.'" Id.(citation omitted). Therefore, we will not disturb the trial
court’s decision to award the parties a divorce on the grounds
of a one-year separation.
Spousal Support Award
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).
The trial court indicated that it considered the statutory
factors before awarding wife $200 in monthly spousal support,
"giv[ing] special attention to paragraphs 2, 4 and 5." The
parties were married for twenty-seven years. The evidence
indicated that husband's income was more than twice that of wife
and that wife's monthly expenses exceeded her income by over
$100 each month. Husband's expenses included substantial
amounts used for his hobbies, including the upkeep of sixty dogs
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for a hunt club. We find no clear abuse of discretion in the
trial court’s award of spousal support to wife.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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