                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


LOTHAR W. NASS
                                            MEMORANDUM OPINION * BY
v.   Record No. 1882-00-1                    JUDGE RICHARD S. BRAY
                                                 APRIL 10, 2001
ARLENE WOLIN NASS


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  John C. Morrison, Jr., Judge

          G. Michael Price (Connor & Price, P.C., on
          brief), for appellant.

          Janice Pickrell Anderson (Kellam, Pickrell,
          Cox & Tayloe, P.C., on brief), for appellee.


     Lothar W. Nass (husband) and Arlene Wolin Nass (wife) were

divorced by decree of the trial court entered July 5, 2000.

Husband appeals, complaining the trial court erroneously awarded

wife a divorce "on fault grounds," denied him spousal support and

determined the former residence of the parties was not a marital

asset, wasted by wife.   Finding the court incorrectly refused to

decree the divorce pursuant to Code § 20-91(A)(9), notwithstanding

a motion in accordance with Code § 20-121.02, we remand solely for

appropriate amendment of the decree.   In all other particulars, we

find no error and affirm the trial court.



     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     Guided by well established principles, we consider the

evidence most favorably to the prevailing party below, wife in the

instant appeal.    Cook v. Cook, 18 Va. App. 726, 731, 446 S.E.2d

894, 896 (1994).   "'While the report of a commissioner in chancery

does not carry the weight of a jury's verdict, . . . it should be

sustained unless the trial court concludes that the commissioner's

findings are not supported by the evidence.'"   Kelker v. Schmidt,

34 Va. App. 129, 137, 538 S.E.2d 342, 346 (2000) (citation

omitted).   "'Once adopted by the chancellor, . . . actions,

findings and recommendations of the commissioner become those of

the . . . court and are due considerable deference on appeal.'"

Id. (citation omitted).   Thus, "a decree that has confirmed a

commissioner's report . . . will be affirmed unless plainly

wrong."   Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886

(1987).

     The relevant facts are substantially uncontroverted.      The

parties married on February 28, 1976, no children were born to

the marriage, and they separated on March 18, 1996.     Husband

thereafter instituted suit for divorce from bed and board

pursuant to Code § 20-95, alleging that a series of violent

assaults upon him by wife on the day of separation constituted

"cruelty and constructive desertion," and seeking, inter alia,

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equitable distribution and spousal support.     In responsive

pleadings, wife denied any wrongdoing and, by cross-bill,

likewise accused husband of "cruelty" resulting from a violent

assault, followed by "desertion," on March 18, 1996, and prayed

for relief pursuant to Code § 20-107.3 and otherwise.

                          I.   The Divorce

     Wife proceeded on her cross-bill before a commissioner in

chancery designated by the trial court.      Following extensive ore

tenus hearings, the commissioner reported that wife's

corroborated testimony "revealed that . . . [husband], on March

18, 1996, assaulted and generally physically abused [her],

causing her to . . . fear . . . further injury."     The

commissioner, therefore, concluded husband was then "guilty of

conduct toward [wife] constituting cruelty tantamount to

constructive desertion," which resulted in "continuous and

uninterrupted [separation] ever since," a period in excess of

one year.   Accordingly, the commissioner recommended a "decree

be entered . . . granting . . . [wife] . . . a divorce A Vinculo

Matrimonii" from husband, "upon the grounds . . . of

constructive desertion" on March 18, 1996.

     In exceptions to the commissioner's report, husband

contended wife had "elected to go forward on a no-fault

grounds," with husband's "acquiescence," in accordance with Code

§ 20-121.02.   In support of his assertion, husband relied upon

the commissioner's comments on the second day of hearings:      "I'm

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told that the last time we were here we resolved the fault

grounds.   The divorce will be obtained on no fault grounds, put

. . . another way."   The court, however, overruled husband's

exceptions and granted wife a divorce a vinculo matrimonii "on

the grounds that [husband] deserted [her] on" March 18, 1996.

     On appeal, husband contends the court erroneously granted

"a divorce on fault grounds," "[i]n the face of the agreement of

the parties that the divorce would be on no fault grounds only."

Wife does not dispute the concurrence of the parties in a motion

before the commissioner to proceed on no fault grounds, but,

because the evidence established fault, finds no error in the

report and attendant decree.

     Code § 20-121.02, provides in pertinent part,

           In any divorce suit wherein a bill of
           complaint or cross-bill prays for a divorce
           . . . from bed and board under § 20-95, at
           such time as there exists in either party's
           favor grounds for a divorce from the bonds
           of matrimony under § 20-91(9), either party
           may move the court wherein such divorce suit
           is pending for a divorce from the bonds of
           matrimony on the grounds set out in
           § 20-91(9) without amending the bill of
           complaint or cross-bill.

Code § 20-91(A)(9) authorizes "[a] divorce from the bond of

matrimony . . . [o]n application of either party if and when the

husband and wife have lived separate and apart without any

cohabitation and . . . interruption for one year."

     Here, the record confirms a timely motion by one or both

parties, pursuant to Code § 20-121.02, to obtain the divorce in

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accordance with the provisions of Code § 20-91(A)(9), together

with sufficient evidence to support such relief.    Nevertheless,

the commissioner and trial court disregarded the motion,

resulting in an inconsistent recommendation and decree.    Under

such circumstances, husband is entitled to an amendment in the

decree, awarding wife a no fault divorce pursuant to Code

§ 20-91(A)(9).

                       II.   Spousal Support

     Code § 20-91(A)(9)(c) provides, inter alia, that "[a]

decree of divorce granted pursuant to [Code § 20-91(A)(9)] shall

in no way lessen any obligation any party may otherwise have to

support the spouse unless such party shall prove [the]

exist[ence] in favor of such party some other ground of divorce

. . . ."   Thus, spousal support remains an issue in the subject

cause, and husband complains the court erroneously denied him

such relief.

     "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).    In resolving the

issue, the court "shall consider the circumstances and factors

which contributed to the dissolution of the marriage,

specifically including adultery and any other ground for divorce

under . . . subdivision (3) or (6) of § 20-91 or § 20-95."    Code

§ 20-107.1(E).   However, "[t]he statute fails to specify how

such grounds or circumstances are to be considered in making

                               - 5 -
such a threshold determination." 1   Peter N. Swisher et al.,

Virginia Family Law § 9-4(a) n.3 (2d ed. 1997).    Once an award

is deemed appropriate, the court must consider those factors

enumerated in Code § 20-107.1 in "determining the nature, amount

and duration" of such relief.   Code § 20-107.1(E).   A decision

by the trial court with respect to both entitlement to spousal

support and specifics of the award "'will not be disturbed on

appeal unless it is clear that some injustice has been done.'"

Calvin v. Calvin, 31 Va. App. 181, 186, 522 S.E.2d 376, 379

(1999).

     The instant record establishes egregious conduct by husband

toward wife, in the absence of marital fault by her.     Without

recounting the evidence, his violent assault suggested

life-threatening consequences for wife.    Code § 20-107.1(E)

clearly permits the court, after weighing and considering

husband's misconduct, the precipitative event in the separation,

and related evidence, from concluding that he was not entitled

to spousal support.   Accordingly, we find no abuse of

discretion.




     1
       "'Code § 20-107.1(B) identifies adultery as the single
fault ground for divorce which precludes "permanent maintenance
and support" to the offending spouse, [but] this limitation is
not absolute.'" Calvin v. Calvin, 31 Va. App. 181, 185, 522
S.E.2d 376, 378 (1999) (citation omitted).


                                - 6 -
                      III.   The Former Residence

     Lastly, husband complains the court erroneously decreed

"the former marital house is not a marital asset nor considered

a waste asset subject to     . . . equitable distribution."

Assuming, without deciding, that husband's evidence supported

classification of the parties' former residence as marital

property, complemented by related evidence necessary to a

monetary award pursuant to Code § 20-107.3, the record clearly

fails to establish waste.

     Waste or dissipation of marital assets "occurs 'where one

spouse uses marital property for his own benefit and for a

purpose unrelated to the marriage at a time when the marriage is

undergoing an irreconcilable breakdown.'"     Smith v. Smith, 18

Va. App. 427, 430, 444 S.E.2d 269, 272 (1994) (citation

omitted).    Thus, "[o]ur case law uniformly holds that the

challenged use of funds must be 'in anticipation of divorce or

separation . . . [and] at a time when the marriage is in

jeopardy,'" with the burden of proof resting upon the aggrieved

spouse.     Id. (citations omitted).

     As reported by the commissioner and reflected in the

disputed decree, the record establishes that a sudden, explosive

event, which occurred on March 18, 1996, resulted in an

"irreconcilable breakdown" in the marriage, several months after

wife conveyed the realty in issue to husband's daughter.      Such



                                 - 7 -
evidence failed to establish the contemporaneous marital discord

requisite to the doctrine of waste.

     Accordingly, we reverse the award of divorce to wife from

husband upon the ground of desertion and remand the proceedings

to the trial court solely to permit amendment of the decree to

provide relief pursuant to Code § 20-91(A)(9).   We, otherwise,

affirm the decree in all particulars.

                                        Affirmed in part and
                                        reversed and remanded
                                        in part.




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