                        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.

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     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.




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