                       COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and McClanahan
Argued at Chesapeake, Virginia


BRIAN LEE WINEBARGER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2913-02-1              JUDGE ELIZABETH A. McCLANAHAN
                                               AUGUST 12, 2003
SANDRA SULIK WINEBARGER


              FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                      William H. Shaw, III, Judge

          Breckenridge Ingles (Martin, Ingles & Ingles,
          Ltd., on brief), for appellant.

          No brief or argument for appellee.


     Brian Lee Winebarger (husband) appeals a reservation of

spousal support to Sandra Sulik Winebarger (wife) in a divorce

proceeding.    Husband contends: (1) the trial court improperly

reserved spousal support to wife given a finding of adultery on

the part of wife; and (2) wife failed to prove by clear and

convincing evidence that, despite her adultery, a denial of

support and maintenance would constitute a manifest injustice

based upon the parties' respective degrees of fault during the

marriage and their relative economic circumstances.     The two

questions raise a single issue, which is whether the trial court




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erred in reserving spousal support to wife.   For the reasons

that follow, we reverse the judgment of the trial court.

                           I.   BACKGROUND

     The parties were married on December 23, 1975.    One child

was born of the marriage in 1989.    On April 16, 2001, after 26

years of marriage, and without warning to husband, wife left the

marital residence and moved into a motel in Newport News.     Wife

filed a Bill of Complaint for divorce on April 17, 2001.    When

husband found wife at the motel, she told him that their

marriage was over.   Husband filed an Answer and Cross-Bill for

divorce on May 15, 2001.

     A pendente lite hearing was held on July 13, 2001, at which

wife admitted that she was living with a man named Charles

Thomas and that they had engaged in sexual relations prior to

the hearing.   About a year later, on June 11, 2002, wife failed

to answer within the specified time a Request for Admissions

sent by husband.   As a result, wife was deemed to have admitted

that she had lived with Thomas since April 2001, that they had

regularly engaged in sexual relations since that time, and that

she had deserted husband on April 16, 2001.   In deposition

testimony on July 10, 2002, wife again admitted to living with

Thomas and admitted that they had engaged in sexual relations

after the parties had separated.

     On July 30, 2002, the trial court heard evidence with

regard to the grounds of divorce, equitable distribution and

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spousal support.   Prior to the hearing, husband filed proffers

in accordance with Code §§ 20-107.1, 20-107.3, and 20-124.3.

Wife did not file any proffers.    Fault issues were addressed by

deposition testimony, which was introduced into evidence at

trial.   Husband testified at trial and introduced exhibits.

Wife did not testify nor introduce any exhibits.

     By letter opinion dated September 23, 2002, the trial judge

held that husband was entitled to a divorce on the grounds that

wife deserted the marriage.   He found that wife's adultery did

not constitute a bar to spousal support, but that wife's claim

for such was reserved.   The judge further stated that in the

absence of evidence on wife's needs, living or working

arrangements or opportunities, an award of spousal support would

require unacceptable speculation.    A decree of divorce, which

incorporated the letter opinion, was entered October 25, 2002,

to which husband objected regarding reservation of spousal

support.

                           II.    ANALYSIS

     "'Whether and how much spousal support will be awarded is a

matter of discretion for the trial court.'"    Northcutt v.

Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)

(quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240,

244 (1998)).   On appeal, a trial court's decision on spousal

support will not be reversed "'unless there has been a clear



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abuse of discretion.'"   Id. (quoting Moreno v. Moreno, 24

Va. App. 190, 194-95, 440 S.E.2d 792, 794 (1997)).

     An abuse of discretion can be found if the trial court uses

"an improper legal standard in exercising its discretionary

function."   Thomas v. Commonwealth, 263 Va. 216, 233, 559 S.E.2d

652, 661 (2002).   A trial court, "'by definition abuses its

discretion when it makes an error of law.'"    Shooltz v. Shooltz,

27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon

v. United States, 518 U.S. 81, 100 (1996)).   An abuse also

exists if the trial court makes factual findings that are

plainly wrong or without evidence to support them.    Code

§ 8.01-680; Northcutt, 39 Va. App. at 196, 571 S.E.2d at 914.

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.    Rahbaran v.

Rahbaran, 26 Va. App. 195, 212, 494 S.E.2d 135, 143 (1997).

     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 (1983);

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Dukelow v. Dukelow, 2 Va. App. 21, 26, 341 S.E.2d 208, 210

(1986).    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).   Application of the exception requires: (1)

that the evidence must rise to the level of clear and convincing

proof; (2) that there must be a finding of manifest injustice;

and (3) in determining whether there is a manifest injustice

that the trial court consider (a) the relative degree of fault

of each party and (b) the economic disparities between the

parties.    Barnes v. Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294,

298 (1993); see Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d

833 (2003) (clarifying Calvin v. Calvin, 31 Va. App. 181, 186,

522 S.E.2d 376, 378 (1999)).

     In this case, the judge acknowledged that wife committed

adultery, a marital fault that amounts to a statutory ground for

divorce under Code § 20-91(1).    Therefore, in order for wife to

be entitled to spousal support, it was necessary for the court

to find by clear and convincing evidence that a denial would

constitute a manifest injustice, as contemplated by the

exception provided in Code § 20-107.1(B).   However, the court

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failed to address either the relative degree of fault of each

party or the economic disparities between the parties, as

required by the statute and Barnes.

     With regard to fault, the court found that wife deserted

the marriage, which entitled husband to a divorce on those

grounds.   Wife admitted to committing adultery.   The court made

no assignment of fault on the part of the husband.   Yet, when

reserving spousal support to the wife, the court did not compare

the degrees of fault on the part of husband and wife.   The judge

summarily concluded, "The [c]ourt does not consider that

[w]ife's adultery constitutes a bar to an award."

     With regard to the economic disparities between the

parties, the court wrote, "While given the length of the

marriage, and disparity in incomes, an award might be otherwise

warranted, there is insufficient evidence upon which to base an

award.   Wife filed no proffers and presented no acceptable

evidence regarding her needs, her present living and working

arrangements or her opportunities."    Consequently, there was

certainly no evidence that rose to the level of clear and

convincing proof that a denial of spousal support and

maintenance would constitute a manifest injustice, and the court

never found such.   Therefore, the exception provided in Code

§ 20-107.1(B) cannot apply.

     The trial court was plainly wrong and without supportive

evidence in reserving spousal support.   Adultery bars an award

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of support unless the narrow exception of Code § 20-107.1(B)

applies.   The trial court did not find by clear and convincing

evidence that a denial of support would constitute a manifest

injustice.   Accordingly, this Court reverses the trial court's

decision reserving spousal support to wife.

                                       Reversed and final judgment.




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