                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Frank and Clements


ARTHUR LESLIE PORTER
                                                                MEMORANDUM OPINION*
v.     Record No. 2907-03-3                                         PER CURIAM
                                                                    JULY 13, 2004
FLOSSIE LOUISE MAPLES PORTER


                   FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                               Charles B. Flannagan, II, Judge

                 (Robert M. Galumbeck; Mary Lynn Tate; Galumbeck, Necessary,
                 Dennis & Kegley; The Tate Law Firm, on brief), for appellant.

                 (Julia L. McAfee; Carl E. McAfee; McAfee Law Firm, P.C., on
                 brief), for appellee.


       On appeal, Arthur Leslie Porter (husband) contends the trial court misapplied the manifest

injustice test contained in Code § 20-107.1 when it awarded Flossie Louise Maples Porter (wife)

spousal support. Specifically, husband argues that wife failed “to prove by clear and convincing

evidence that it was the actions of Husband which were the more culpable in bringing about the

marriage’s demise.” Because wife failed to prevail on the respective degrees of fault prong,

husband asserts the trial court erred in awarding 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.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND

       The parties married in 1989 and had no children during their marriage. On June 27, 2001,

husband filed a bill of complaint seeking a divorce a mensa et thoro on the grounds of cruelty

and/or constructive desertion.

       Wife filed an answer denying husband’s allegations of cruelty and constructive desertion

and, by cross-bill, asked the trial court to grant her a divorce a vinculo matrimonii on the ground

of constructive desertion. In the alternative, wife moved that a divorce be granted on the ground

the parties had lived separate and apart for the statutory period.

       By order entered April 7, 2003, the trial court granted husband’s motion to amend his bill

of complaint to further seek a divorce a vinculo matrimonii alleging that wife has committed and

is committing adultery. The trial court also granted wife’s motion to amend her cross-bill to

include an additional ground for divorce, namely, adultery committed by husband.

       The trial court conducted evidentiary hearings on July 14, 2003, and August 1, 2003, and

it heard closing arguments on September 30, 2003.

       Wife testified that on February 8, 2000, husband told her, “‘I want to be alone.’” On

February 20, 2000, husband gave wife a proposed separation agreement to sign, but she refused

to sign it. Wife recalled that husband became distant and began going out at night. He “[n]ever

said where he was going, [and] never said when he’d be home.” Each time wife asked husband

if he still wanted to live alone, he reiterated that he did. Early in 2001, husband gave wife a

document entitled “Separation and Property Settlement Agreement.” Husband had signed it

before a notary public on February 1, 2001, and asked wife to sign. Wife refused to sign this

agreement also. The parties separated, and husband filed for divorce in June 2001. Wife

admitted having sexual relations with Jack Cole in August 2002, fourteen months after she and

husband separated.

                                                -2-
       Jack Cole corroborated wife’s testimony that he and wife had sexual intercourse in the

summer of 2002 after she separated from husband and moved out of the marital home.

       Husband testified that he began worrying about his business, his income and his health in

the late 1990’s, so he sought to make plans to address those concerns. In the fall of 1999, he

visited an attorney for the purpose of having a “marital agreement” prepared. Husband prepared

and submitted to the attorney an outline of what he wanted the document to include, namely, a

listing and division of personal and real property and provisions for alimony and divorce

expenses. The attorney prepared the document, entitled, “Marital Agreement,” and gave a copy

to husband “early [in] 2000.” The document recited that “the parties desire to define their

financial rights and obligations” regarding husband’s companies. Husband provided a copy to

wife in February 2000. Husband admitted telling wife at that time that he felt like he could live

alone. Husband explained that he feared wife would not be supportive and helpful when things

“g[o]t tough financially.” Throughout 2000, wife continued to ask husband if he still felt like he

could live alone, and each time, husband replied, “‘Yes, Flossie. I can live alone.’” Following

husband’s insistence that he could live alone, wife “told [some] people that we were separated

and was [sic] moving out.” After learning of wife’s comments, husband testified that in

September 2000, he told wife, “‘Well, Flossie, I guess it’s over.’” Husband visited an attorney in

October or November 2000 and had him prepare a separation and property settlement agreement.

Husband admitted executing the agreement on February 5, 2001, and giving it to wife to sign.

The third paragraph reads as follows:

               WHEREAS, as a result of the unfortunate domestic difficulties, the
               parties are, on the date of the execution of this agreement,
               commencing to live separate and apart, with the intent to live
               permanently separate and apart[.]

Wife never signed the agreement.



                                               -3-
        Following the September 30, 2003 closing arguments, the trial court directed each party to

submit “a proposed final order that grants your client all the relief that you’re asking for. In other

words, as though the [trial court] has ruled in your favor on every point.”

        In its October 15, 2003 final decree, the trial court “adjudged, ordered and decreed that the

[wife] be awarded a final divorce from [husband] on the grounds that the parties have lived separate

and apart without cohabitation” for more than one year. In the section entitled “Spousal Support

and Maintenance,” the trial court ruled as follows:

                After consideration of the evidence and arguments presented,
                including the relative economic circumstances of the parties and
                their respective degrees of fault leading to the dissolution of this
                marriage, the Court finds that a denial of spousal support and
                maintenance to [wife] would constitute a manifest injustice in this
                case, and it is hereby adjudged, ordered and decreed, that
                [husband] shall pay to the [wife] the sum of Two Thousand Dollars
                on the 1st day . . . each and every calendar month

                              THE SPOUSAL SUPPORT EXCEPTION

        “Under Code § 8.01-680, a factual determination cannot be reversed on appeal unless

‘plainly wrong or without evidence to support it.’ This standard applies to a ‘trial court’s

decision to award spousal support to a party despite his or her adultery’ as it does to any other

domestic relations case.” Congdon v. Congdon, 40 Va. App. 255, 261, 578 S.E.2d 833, 836

(2003) (citations omitted).

        Code § 20-107.1(B) provides that “no permanent maintenance and support shall be

awarded from a spouse if there exits in such spouse’s favor a ground of divorce under the

provisions of subdivision (1) of § 20-91,” which provisions include adultery. In determining

whether a party is eligible for spousal support, “the court must determine whether either of the

parties is barred from receiving support due to the existence of a marital fault amounting to a

statutory ground for divorce.” Thomasson v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66



                                                  -4-
(1983). But, even where such a marital fault exists, the statute provides a narrow exception that

reads:

                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).

         “‘In order to find that denial of support will constitute a manifest injustice, the court must

base that finding on the parties’ comparative economic circumstances and the respective degrees

of fault.’” Congdon, 40 Va. App. at 264, 578 S.E.2d at 838 (quoting Barnes v. Barnes, 16

Va. App. 98, 102, 428 S.E.2d 294, 298 (1993)).

                The ultimate issue remains, then, whether clear and convincing
                evidence of [the parties’] respective degrees of marital fault —
                coupled with an examination of the economic disparities between
                them — supports a finding of manifest injustice. This issue
                resolves itself under our appellate review standard. Under this
                standard, if “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.”

Id. at 266, 578 S.E.2d at 838 (quoting Calvin v. Calvin, 31 Va. App. 181, 183, 522 S.E.2d 376,

377 (1999)).

                “[R]espective degrees of fault during the marriage” are not limited
                to legal grounds for divorce. . . . “[F]ault during the marriage”
                encompasses all behavior that affected the marital relationship,
                including any acts or conditions which contributed to the
                marriage’s failure, success, or well-being. The “respective degrees
                of fault” are, however, but one of the two considerations the court
                must take into account in determining whether a denial of support
                constitutes a manifest injustice. Even though one party may have
                been the major force in creating the “fault during the marriage”
                which led to its dissolution and the other spouse may have been
                relatively blameless, those conditions constitute but one of the
                factors the court must weigh. The court must also weigh and
                consider the parties’ relative economic positions in deciding


                                                  -5-
               whether it would be manifestly unjust to deny a spousal support
               award.

Barnes, 16 Va. App. at 102, 428 S.E.2d at 298 (emphasis added).

                                                ANALYSIS

       Husband argues that wife failed to prove “by clear and convincing evidence the second

prong of the manifest injustice test dealing with the relative degrees of fault of the parties.”

However, husband’s argument is based on an incorrect interpretation of the manner in which

Code § 20-107.1 is to be applied. In Congdon, we explained that the trial court must determine

“whether clear and convincing evidence of [the parties’] respective degrees of marital fault —

coupled with an examination of the economic disparities between them — supports a finding of

manifest injustice.” Congdon, 40 Va. App. at 266, 578 S.E.2d at 838 (emphasis added).

Therefore, a party obtaining spousal support need not prevail independently on each prong by

clear and convincing evidence. In Barnes, we noted that “one party may have been the major

force in creating the ‘fault during the marriage’ which led to its dissolution and the other spouse

may be relatively blameless,” yet the trial court may find clear and convincing evidence that a

denial of support would constitute a manifest injustice after also weighing and considering “the

parties’ relative economic positions.” Barnes, 16 Va. App. at 102, 428 S.E.2d at 298. Because

wife was not required to present clear and convincing evidence to prevail on each prong

independently, we look to “whether clear and convincing evidence of [the parties’] respective

degrees of marital fault — coupled with an examination of the economic disparities between

them — supports a finding of manifest injustice.” Congdon, 40 Va. App. at 266, 578 S.E.2d at

838.

       The record demonstrates that wife’s adultery “occurred after the parties were separated.”

Barnes, 16 Va. App. at 102, 428 S.E.2d at 298 (noting that adultery occurring long after marriage

had been “irretrievably lost” did not cause dissolution). On the other hand, the evidence proved
                                                 -6-
that husband became concerned about finances in the late 1990’s, and on February 8, 2000, he

told wife he could live alone. Late in 1999, husband began to visit attorneys and have them

prepare legal documents to define and limit wife’s claims to his business interests and certain

other assets. Husband continued to tell wife he wanted to live alone, and in February 2001,

husband presented wife with a property settlement agreement in contemplation of divorce. The

trial court’s belief that wife was not more culpable than husband in dissolving the marriage is

evident in its refusal to grant husband the divorce based on fault grounds.

       As to the economic factor of the equation, the wife’s earning capacity and her assets were

substantially less than those of husband. Husband had significant assets, including a fifty-five

percent interest in Tri-Tube, Inc., a business he owned prior to the marriage. Husband’s share of

Tri-Tube was valued at trial at $375,152. Prior to the marriage, wife was a clerk at K-Mart, and

she had little or no assets to bring into the marriage.

       The record contains sufficient credible evidence to show that the trial court properly

considered and weighed “the respective degrees of fault during the marriage” as well as the

parties’ relative economic situations in finding by clear and convincing evidence that a denial of

spousal support would be manifestly unjust under these circumstances. Accordingly, the record

fails to show that the trial court improperly applied the spousal support exception or erred in its

consideration of the parties’ respective degrees of fault during the marriage. Moreover, the

record supports the trial judge’s findings of clear and convincing evidence.

       In summary, we affirm the judgment of the trial court. Further, upon review of the

record, we do not find an award of attorney fees, in connection with this appeal as requested by

wife, to be appropriate. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98,

100 (1996).

                                                                                           Affirmed.

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