Robertson v. Robertson

• Citation: 211 S.E.2d 41,215 Va. 425
• Parties: Walter S. ROBERTSON, Jr. v. Luisa Pinillos ROBERTSON.
• Decision Date: 20 January 1975
• Court: Supreme Court of Virginia

Page 41

211 S.E.2d 41

215 Va. 425

Walter S. ROBERTSON, Jr. v. Luisa Pinillos ROBERTSON.

Supreme Court of Virginia.

Jan. 20, 1975.

Harry P. Anderson, Jr., Richmond (William F. Parkerson, Jr., Anderson, Haw, Parkerson & Beazley, Richmond, on brief), for appellant.

R. Harvey Chappell, Jr., Richmond (James W. Tredway, III, Christian, Barton, Epps, Brent & Chappell, Richmond, on brief), for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

In this domestic relations case, the wife, Luisa Pinillos Robertson, filed a bill of complaint for divorce on the grounds of desertion (Code § 20--91(6)) and adultery (Code § 20--91(1)). The husband, Walter S. Robertson, Jr., filed a cross-bill for divorce on the ground of two years separation (Code § 20--91(9)). The trial court awarded the wife a divorce on the grounds set forth in her bill of complaint; ordered the husband to pay alimony of $19,999.92 per year, counsel fees of $10,000, and certain expenses claimed by the wife in connection with the divorce proceeding; directed the husband to replace any furniture or furnishings removed from the wife's apartment; and dismissed the husband's cross-bill. The husband has appealed.

The record shows that the parties were married June 19, 1965. Their marriage was childless. They separated August 11, 1971, when the husband deserted the wife. On various dates following the separation, the husband engaged in an adulterous relationship with another woman. The wife filed her bill for divorce on the grounds of desertion and adultery on July 19, 1973. The husband filed his cross-bill for divorce on the ground of two years separation on August 22, 1973, at which time the two-year period from the date of the original separation had become complete.

The husband contends that under the foregoing circumstances it was error to award the wife a divorce on the grounds of desertion and adultery. He argues that because the two-year separation period had become complete subsequent to the desertion and the acts of adultery, the ground of divorce based upon such separation took precedence over the other grounds. The legislature intended, the husband asserts, in enacting Code § 20--91(9), the two-year divorce statute, to dissolve marriages without regard to the fault of the parties. The legislature further intended, the husband says, that where a court has a choice between a cause of action for a 'no fault' divorce and a cause seeking to fix fault, 'the cause without fault to either party should be chosen.'

We cannot agree with the husband. We find nothing in Code § 20--91(9), or in any other portion of the divorce law, which suggests legislative intent to give precedence to one proven ground of divorce over another. While, as the husband points out, a cause of action for divorce under Code § 20--91(9) is not subject to a plea of res judicata or recrimination with respect to any other ground, no such plea is involved here. We are concerned only with whether a court is required to grant a divorce under the two-year separation statute to the exclusion of all other proven grounds. We hold that such action is not required.

The husband contends alternatively that upon proof by the wife that she was entitled to a divorce on the ground of desertion, it was error to admit evidence of the husband's adulterous conduct occurring after the desertion and to base the award of divorce upon the further ground of adultery. Nothing in the divorce statutes, however, supports this contention of the husband. Furthermore, this court has specifically recognized the propriety of an award of divorce based upon the dual grounds involved here. See Bennett v. Bennett, 187 Va. 631, 47 S.E.2d 312 (1948). We hold, therefore, that evidence of the husband's adulterous conduct was properly admitted and that the wife was properly awarded a divorce on the grounds of desertion and adultery. ¹

This brings us to the principal question raised by the husband: whether the amount of alimony, $19,999.92 per year, awarded the wife is excessive. In resolving this question, the applicable rule requires a husband, within the limits of his financial ability, to maintain his former wife in the manner to which she was accustomed during the marriage. A fair allotment to a wife is determined by balancing her needs against the ability of the husband to pay, considering both his actual earnings and his capacity to earn, whether from his personal exertions or his property. Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106 (1962); Taylor v. Taylor, 203 Va. 1, 3, 121 S.E.2d 753, 755 (1961).

In the present case, we are unable to determine from the record how the trial court arrived at the amount of the alimony award. The judge rendered no opinion, made no findings of fact, and set forth no computations. Employing figures and combinations of figures from the record, we have unsuccessfully attempted to reconstruct the award. Accepting the amount awarded as necessary to support the wife in the manner to which she was accustomed during the marriage, we still are without an explanation from the record to justify the amount in terms of the husband's ability to pay.

Nor has the wife provided a reasonable explanation of the manner in which the award was computed. She has attempted to justify the amount by arguing that the husband should have received a greater return on certain investments ² and that the trial court could have considered the enhanced return in making its award. But the rate of return received by the husband was in accordance with an investment plan followed during the marriage and established with advice of competent counsel. There is no indication that the husband designed the plan to frustrate the wife's efforts to secure alimony. So the possibility of a greater return should not be considered. See Brauer v. Brauer, 215 Va. 62, 205 S.E.2d 665 (1974).

The wife also attempts to justify the amount of the award by noting that the husband is a 'potential recipient of a substantial sum of money . . . under an indenture of trust.' The wife refers to a trust fund valued at several million dollars in which the husband, upon the death of his mother, might share. The trust provides, however, that the mother may designate by will which of her issue will share the fund. Although the mother has 'done nothing that would cause (the husband) not to inherit his share,' the husband's status with respect to...