                     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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