Congdon v. Congdon

Citation40 Va. App. 255,578 S.E.2d 833
Decision Date08 April 2003
Docket NumberRecord No. 0522-02-2.
PartiesJohn Rhodes CONGDON, Jr., v. Mary Evelyn Davis CONGDON.
CourtVirginia Court of Appeals

Donald K. Butler (Mary Beth Joachim; Morano, Colan, Cook & Butler, on briefs), Richmond, for appellant.

Terrence R. Batzli (Charles E. Powers; Barnes & Batzli, on brief), Chesterfield, for appellee.


KELSEY, Judge.

In this divorce case, John Rhodes Congdon claims the trial court erred by awarding his wife spousal support despite her admitted adultery during the marriage. The trial judge, the husband argues, misapplied the manifest injustice exception to Code § 20-107.1(B)'s statutory bar against awarding support to adulterers. In addition to defending her award of support, Mary Evelyn Davis Congdon claims that the trial court erred in its equitable distribution calculation of the marital share of the appreciation of her husband's separately owned stock in the family trucking business.

We agree with the husband that the trial judge misread our precedents on the manifest injustice exception, but we nonetheless affirm because his factual findings support the result reached under a proper interpretation of the law. As to the equitable distribution calculation of stock appreciation, we disagree with the wife and find no reversible error in the trial court's method of classifying the increase in stock value.


When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences. Wright v. Wright, 38 Va.App. 394, 398, 564 S.E.2d 702, 704 (2002); Donnell v. Donnell, 20 Va.App. 37, 39, 455 S.E.2d 256, 257 (1995). That principle requires us to "`discard the evidence'" of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial. Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)). We view the facts of this case, therefore, through this evidentiary prism.

Mary Evelyn Davis (known as Lynn) and John Rhodes Congdon married in 1977. During their twenty-two year marriage, the couple had three children. John filed for divorce in 1999 alleging adultery, and Lynn filed a cross-bill asserting cruelty and constructive desertion. The parties agreed to the appointment of a judge pro tempore to decide the case.1

In addition to receiving depositions, the trial judge heard testimony ore tenus from multiple witnesses over four days. Much of the testimony described the nature of the marriage and the circumstances that led to its dissolution. At the beginning of the trial, Lynn conceded that she was guilty of adultery and did not contest John's request for a final divorce on this ground. The evidence showed that she engaged in an extramarital affair for at least five years during the marriage.

Viewed in the light most favorable to Lynn, however, the evidence also portrayed John as a profane and verbally abusive man. John frequented "strip joints and topless bars" and told Lynn about, among other things, the "oil wrestlers" that performed at these places. He would indiscriminately engage in these conversations in the presence of his children and Lynn's family, at times even "boasting or bragging about those places." "It was not an infrequent topic of conversation." John went to these places, he explained to one witness, "because they have the best p___." John "frequently talked crudely about sexual type things." He carried on with this practice "[p]retty much the same the whole 20 years."

John also directed his profanity toward his children. In one instance, John's son Michael had accidentally kicked his father's head while both were lying on a bed watching television. Though realizing it was simply an accident, John "started yelling .. . God damn you, Michael. Why in the f___ did you kick me in the face.... Why did you f___ing have to kick me in the face?" In response, Michael ran out of the house. On another occasion, John was having a "food fight" with his twelve-year-old daughter when John accidentally got hit in the eye. He "started screaming ... God damn you. God damn, you hit me in the eye." His daughter "just sat there and started crying," not at all understanding her father's outburst. Other times John would come home from work angry and declare, in ear-shot of his children, that "one of the girls at the office" was a "bitch or a c___." His use of vulgarity, in the presence of his family and others, "was quite frequent."

Several witnesses who knew John and Lynn over the years testified that they had never once seen John show any affection or any kindness toward Lynn. Over the course of the marriage, John chronically complained (both to Lynn and others) about Lynn's weight, appearance, housekeeping, and spending habits. John referred to Lynn as "Witch." He was a "heavy drinker," sometimes starting as early as "10:00 in the morning." Because John maintained strict control over the financial accounts, Lynn was not "privy to the family finances at any time during the marriage." John particularly disliked Lynn's family and threatened on one occasion to move her out of town if she did not "stop speaking with her parents."

Despite these problems, John and Lynn enjoyed considerable financial security. John has a college degree, a stable and long-term career in a family trucking business, an annual salary exceeding $250,000, and additional income from corporate dividends and family related gifts. John's interests in stocks, real estate, and tangible assets exceeded $6 million. In contrast, Lynn has not held a full time job since the early years of her marriage, choosing instead to stay at home to raise their three children. She has no college degree, giving her a future earning capacity far below her husband's. At the time of trial, Lynn was earning $10.00 an hour as a receptionist.

The trial court also heard evidence that John's stock in his family business increased in value over the course of the marriage. Conceding that John acquired the shares as a gift from his family and thus should be considered separate property, Lynn argued that under Code § 20-107.3(A)(3)(a) the appreciation portion of the stock's present value should be treated as marital property. In reply, John presented extensive testimony on the internal management of the business and the role of six other key employees in the company's success.

After the close of the evidence, the trial court issued a comprehensive letter opinion detailing each aspect of the court's rulings on divorce grounds, equitable distribution, and spousal support. On the first issue on appeal, the adultery bar against spousal support, the court invoked the "manifest injustice" exception in Code § 20-107.1(B). After considering the additional factors in Code § 20-107.1(E), the court awarded support of $2,300 per month to Lynn to continue until her death or remarriage. On the second issue on appeal, the classification (marital or separate property) of the stock appreciation, the court found that 90% of the increase in value should be deemed separate property given the extensive efforts of other key employees and the extent of "passive growth" in the stock value.


Under Code § 8.01-680, a factual determination cannot be reversed on appeal unless "plainly wrong or without evidence to support it." See Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992)

; Torian v. Torian, 38 Va.App. 167, 181, 562 S.E.2d 355, 362 (2002). 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) (citing Williams v. Williams, 14 Va.App. 217, 219, 415 S.E.2d 252, 253 (1992)).

"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 this subject will not be reversed "unless there has been a clear abuse of discretion." Id. (quoting Moreno v. Moreno, 24 Va.App. 190, 194-95, 480 S.E.2d 792, 794 (1997)); see also Gottlieb v. Gottlieb, 19 Va.App. 77, 84, 448 S.E.2d 666, 671 (1994)


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), because 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, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). See also Mughrabi v. Commonwealth, 38 Va.App. 538, 545, 567 S.E.2d 542, 545 (2002)

. An abuse of discretion also exists if the trial court fails to consider the statutory factors required to be part of the decisionmaking process, Rowe v. Rowe, 24 Va.App. 123, 139, 480 S.E.2d 760, 767 (1997), or makes factual findings that are plainly wrong or without evidence to support them, Northcutt, 39 Va.App. at 196,

571 S.E.2d at 914.


John challenges the trial court's award of spousal support to his wife. Code § 20-107.1(B) bars an award of support to any spouse found guilty of adultery, John argues, except in narrow circumstances not present in this case. John disagrees with the trial court's interpretation of Code § 20-107.1(B), as well as its factual findings in support of applying the statutory exception. We agree with John that the trial court restated the § 20-107.1(B) standard incorrectly, but conclude that the trial court's factual findings support its decision in any event.


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