Alphin v. Alphin

• Decision Date: 08 December 1992
• Docket Number: No. 2279-91-2,2279-91-2
• Citation: 424 S.E.2d 572,15 Va.App. 395
• Court: Virginia Court of Appeals
• Parties: Shannon V. ALPHIN, v. Darnell G. ALPHIN. Record

Page 572

424 S.E.2d 572

15 Va.App. 395

Shannon V. ALPHIN, v. Darnell G. ALPHIN.

Record No. 2279-91-2.

Court of Appeals of Virginia.

Dec. 8, 1992.

Robert C. Bode, Richmond (Hooker, Bode, Collier and Dickinson, on brief), for appellant.

G. Warthen Downs, Richmond (Downs & Wright, on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

By final decree entered November 27, 1991, Darnell G. Alphin (husband) was divorced from Shannon V. Alphin (wife) on the ground that the parties had lived separate and apart for a period in excess of one year. Code § 20-91(9)(a). The decree ordered the husband to pay child support in the amount of $725 per month, and spousal support in the amount of $1,500 per month. In addition, the decree incorporated the trial judge's ruling as to the equitable distribution of the parties' assets. Both parties appeal, asserting multiple grounds of error on the issues of spousal support and equitable distribution. We find that all the questions presented are without merit and affirm the decision of the trial judge.

I. QUESTIONS PRESENTED

The wife argues the trial court erred: (1) in failing to grant her a divorce on the ground of desertion; (2) in failing to grant her a divorce on the ground of adultery, despite the husband's admission and corroborating evidence of post-separation adultery; (3) in awarding an insufficient amount of spousal support; and (4) in ruling that the husband did not waste approximately $100,000 of marital funds after the separation.

The husband asserts three grounds of cross-error. The trial court erred: (1) in awarding the wife an excessive amount of the marital assets; (2) in ordering him to pay the wife's first attorney $2,000, and to pay her second attorney $3,000; and (3) by failing to state the weight accorded to the factors set forth in Code § 20-107.3(E).

II. BACKGROUND

The parties were married August 4, 1973 and separated on January 17, 1990 when the husband left the marital home. Shortly thereafter, the wife instituted divorce proceedings, alleging that her husband deserted the marriage. Husband filed an answer and cross-bill alleging cruelty and constructive desertion by the wife. The trial judge held an ore tenus hearing on October 19, 1991, at which time all pending matters were heard, including the grounds for divorce, equitable distribution, spousal and child support, attorney's fees and the wife's motion to amend her pleadings to allege adultery as an additional ground for divorce. The trial judge denied the wife's motion to amend her bill of complaint and granted a divorce to the husband based on a one-year separation. On October 24, 1991, the trial judge issued an opinion letter deciding all issues, which findings were incorporated into the final divorce decree.

The parties were married for over eighteen years, the first marriage for each. They have two minor children, who are in the custody of the wife. Throughout most of the marriage, the husband, who has a college education, was employed by Best Products Incorporated. After the parties separated, Best Products filed for Chapter 11 bankruptcy protection, and the husband, along with many other employees, was discharged. His salary at the date of discharge was $73,400, plus benefits. He is currently employed in similar employment as a district manager for another department store, but at a significantly reduced salary. The husband was the major financial provider during the marriage, and he is presently in good health.

The wife was primarily a homemaker during the marriage. She has a high school education and has held occasional jobs as a sales clerk. She is a licensed real estate agent, but is currently unemployed and has significant mental health problems.

The parties purchased several homes during the marriage. Each time, with the exception of the last purchase of the marital home, the parties "traded-up" to a residence with a higher market value. In the fall of 1987, they purchased a residence for $335,000. Shortly thereafter, they placed their children in private school and generally overextended themselves financially. Six months before the separation, the residence was sold for $480,000 and the parties purchased the wife's present residence for $220,000. The most recent appraisal values this dwelling at $175,000, and there is an outstanding mortgage on the property of $148,000.

III. GROUNDS FOR DIVORCE

"Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its findings are entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va.App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County Dep't of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986)).

The trial court did not err in failing to award the wife a divorce on the ground of desertion. The law requires corroboration in order to prove any ground of divorce. See Code § 20-99. It is clear from the record that the wife did not adequately corroborate her allegation that her husband deserted the marriage. Furthermore, where "multiple grounds for divorce exist, the trial [court] can use [its] sound discretion to select the grounds upon which [it] will grant the divorce." Lassen v. Lassen, 8 Va.App. 502, 505, 383 S.E.2d 471, 473 (1989). In the case at bar, the trial judge ruled that this divorce should be granted to the husband based upon the parties having been separated for one year, which was proven and corroborated by the evidence. Accordingly, the trial judge did not abuse his discretion in determining the appropriate ground upon which to grant the divorce.

IV. AMENDMENT OF PLEADING--ADULTERY

In June 1991, wife's counsel received a private investigator's report which provided a strong indication that the husband had committed adultery. During discovery depositions, the husband admitted under oath that he had engaged in post-separation adultery. This admission was corroborated by the deposition testimony of his paramour. However, despite the availability of this evidence, the wife chose not to make a motion to amend her pleadings to allege adultery as an additional ground of divorce until the day of trial.

"The decision to permit a party to amend a pleading is discretionary with the trial court. It is reviewable by this Court only for an abuse of that discretion." Thompson v. Thompson, 6 Va.App. 277, 281, 367 S.E.2d 747, 750 (1988). In denying the wife's motion to amend her bill of complaint, the trial judge stated:

When [the adultery] occurred is not nearly as important as when it's being brought before the Court, which is today, and I think that's too late. Obviously, it's something I can consider as to the reason for separation: Was it because the beds weren't made, or was it because of some other reason out there. I think I can take that into consideration, but the motion to amend is denied.

The wife had sufficient time to seek leave of court to amend her pleadings prior to the scheduled final hearing. Her failure to do so without any justification provides ample reasons for the trial judge to deny the motion to amend. The wife's appeal on this issue is without merit.

V. SPOUSAL SUPPORT

The trial judge wrote in his letter opinion that he had "reviewed the factors set out in [Code] § 20-107.1 in establishing spousal support." In addition, he indicated that "[n]umbers 1, 2, 3, 4, 5, and 8 [of Code § 20-107.1] are of particular significance." "When a court awards support based upon due consideration of these factors, as shown by the evidence, its determination 'will not be disturbed except for a clear abuse of discretion.' " Lassen, 8 Va.App. at 505, 383 S.E.2d at 473 (quoting Dodge v. Dodge, 2 Va.App. 238, 246, 343 S.E.2d 363, 367 (1986)). Furthermore, "it is presumed 'that a trial judge properly based his decision on the evidence presented ... and properly applied the law.' " Williams v. Williams, 14 Va.App. 217, 221, 415 S.E.2d 252, 254 (1992) (quoting Brown v. Commonwealth, 8 Va.App. 126, 133, 380 S.E.2d 8, 12 (1989)).

The wife argues that the trial judge awarded her an insufficient amount of spousal and child support. We find no merit to either claim. The wife requested a total payment of $4,262.51 per month, an amount only slightly less than the husband's total monthly income. It is apparent that the child support award of $725 per month was properly calculated pursuant to the guidelines set forth in Code § 20-108.2. No evidence indicates that the husband's $725 per month child support obligation is inappropriate.

The wife's request for additional spousal support is premised on her belief that the division of the marital property did not adequately compensate her, and that she cannot pay her obligations with the amount awarded. In determining the appropriate amount of spousal support, the trial court must consider the needs of the requesting party and the other spouse's ability to pay. Although the evidence established that the wife had a significant need for spousal support, the husband had no greater ability to pay than the amount the trial judge ordered. In fixing the amount of support, the trial "court must look to the financial needs of the [receiving party], her age, physical condition and ability to earn, and balance against these circumstances the financial ability of the [other spouse] to pay, considering his income and his ability to earn." Ray v. Ray, 4 Va.App. 509, 514, 358 S.E.2d 754, 756-57 (1987).

The husband's current gross monthly income is approximately $5,000, which yields a net monthly income of $3578.95. The trial judge ordered the husband to pay $725 in child support and $1,500 in spousal support, producing a combined support obligation of $2225 per month. When the support award is compared to...