Craig A Knepp v. Linda E Niece ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
CRAIG A. KNEPP
MEMORANDUM OPINION *
v. Record No. 1801-02-2 PER CURIAM
JANUARY 28, 2003
LINDA E. NIECE
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(John H. Goots; Chenault & Goots, PLC, on
brief), for appellant.
(Jennifer E. Crossland; Parcell, Webb &
Wallerstein, on brief), for appellee.
Craig A. Knepp (husband) appeals the decision of the circuit
court awarding Linda E. Niece (wife) a divorce. On appeal,
husband contends the trial court erred in awarding wife (1) a
divorce on the ground of desertion, (2) $25,000 for her interest
in a business, and (3) spousal support. Upon reviewing the record
and the parties' briefs, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Background
The parties married in 1967 and separated on August 21,
1999. Wife testified she learned husband had had a sexual
relationship with his secretary. She also stated husband told
her to leave the marital home.
During their marriage, husband purchased an interest in the
company Brummell & Associates. He testified he borrowed money
from Christopher Goad to finance the purchase. However, the
corporate records list appellant as the owner of the stock.
Husband's expert witness valued husband's stock in the business
at $82,500. The court awarded wife $25,000 for her interest in
the asset.
Wife testified she worked part-time during the marriage
performing clerical and secretarial work. After the parties
separated, wife returned to full-time work. Husband is in good
health and has a graduate degree in business. Wife's income and
expense statement indicated a monthly need of $934. Husband's
monthly expenses listed over $700 to support his adult daughters
and also included the $704 he was ordered to pay as pendente
lite spousal support. Husband admitted he used his business
account to pay personal expenses. The court awarded wife $500
per month in spousal support.
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Analysis
I.
"'Desertion is a breach of matrimonial duty, and is
composed first, of the actual breaking off of the marital
cohabitation, and secondly, an intent to desert in the mind of
the offender. Both must combine to make the desertion
complete.'" Zinkhan v. Zinkhan, 2 Va. App. 200, 205, 342 S.E.2d
658, 660 (1986) (quoting Nash v. Nash, 200 Va. 890, 893, 108
S.E.2d 350, 352 (1959)). "The burden of proving desertion
should be by a preponderance of the evidence." Bacon v. Bacon,
3 Va. App. 484, 490, 351 S.E.2d 37, 40-41 (1987).
Wife testified appellant was having an affair and that he
ordered her to leave the house. "The law is settled that
desertion as a ground for divorce does not depend on which
spouse actually leaves the family home." Dexter v. Dexter, 7
Va. App. 36, 42, 371 S.E.2d 816, 819 (1988). The evidence
established that appellant intended to leave the marriage and
broke off the marital cohabitation by ordering wife to leave the
house.
II.
The court ordered husband to pay wife $25,000 for her
interest in the business "Brummell & Associates." "In reviewing
an equitable distribution award on appeal, we have recognized
that the trial court's job is a difficult one, and we rely
heavily on the discretion of the trial judge in weighing the
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many considerations and circumstances that are presented in each
case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,
870 (1990). "Unless the record shows that the trial judge has
abused his or her discretion by misapplying the statutory
factors, the trial judge's determination will not be reversed on
appeal." Moran v. Moran, 29 Va. App. 408, 417, 512 S.E.2d 834,
838 (1999). Husband unquestionably owned the stock at the time
the parties separated. The court properly classified the
property as marital and did not err by awarding a portion of its
value to wife.
III.
"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).
Appellant argues the trial court failed to consider the
necessary statutory factors.
The requirement that the trial court
consider all of the statutory factors
necessarily implies substantive
consideration of the evidence presented as
it relates to all of these factors. This
does not mean that the trial court is
required to quantify or elaborate exactly
what weight or consideration it has given to
each of the statutory factors. It does
mean, however, that the court's findings
must have some foundation based on the
evidence presented. Therefore, we hold that
in a determination involving spousal
support, if the court's findings do not have
evidentiary support in the record, then the
court has abused its discretion.
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Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986). Evidence concerning the income and expenses of the
parties established a foundation supporting the court's award of
spousal support.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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