Shaffer v. Shaffer
| Decision Date | 29 July 2003 |
| Docket Number | Record No. 3329-02-4. |
| Parties | GREGORY SHAFFER v. LINDA SHAFFER |
| Court | Virginia Court of Appeals |
Stephen D. Quatannens for appellant.
Lawrence D. Diehl for appellee.
Present Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia.
Asserting twenty-nine assignments of error, Gregory Shaffer challenges the grounds upon which the trial court granted his wife a divorce, the award of sole legal custody of his children to his wife, the award of spousal and child support, the equitable distribution award, and the award to his wife of attorney's fees incurred in the trial court.
The chancellor addressed each of these issues in a comprehensive letter opinion. Finding no error in the trial court's analysis or its holdings, we affirm. Because many of husband's arguments have little or no legal merit, we grant wife's request for attorney's fees on appeal and remand this matter to the trial court to review the reasonableness of her requested amount.
When reviewing a chancellor's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting her the benefit of any reasonable inferences. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "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." Id. (citations and internal quotations omitted).
Gregory ("husband") and Linda Shaffer ("wife") married on September 30, 1989. The couple had two daughters, born in 1991 and 1994. Wife quit her job as a sales manager after she and husband agreed that she would be a stay-home mother and the "primary caretaker for the children."
In 1993, upon returning from a business trip to Ohio, husband admitted to wife that he had been "in bed" with a woman he met in a bar. Husband denied, however, having intercourse with the woman. Husband also promised never again to be unfaithful. Wife forgave husband, but made clear to him that "the marriage would not survive another incident of infidelity."
In 1995, husband accepted a new job that involved extensive domestic and international travel. "He was hardly ever home," wife recalled. During this period, wife maintained the household and raised the children.
After returning from a trip in March 2000, husband announced that he did not "know if I want to be married anymore, marriage is boring." To liven the relationship, husband suggested, the couple should "go out to bars and go dancing and get drunk." Husband also complained that wife did not do enough to stimulate him sexually or to "keep things exciting." Hearing this news, wife felt emotionally "devastated."
Husband left on another trip, this time to Pakistan. After his return, husband admitted that he had "committed adultery" with numerous women for a "long time." Included in his indiscretions were sexual relations with "a nurse," "a patient," "another nurse," and, when on trips, at least four women he met in bars.1 In later conversations, husband also confessed to at least "three or four" of the affairs to Nancy Pcsolyar, a neighbor, and also admitted his infidelity to Rev. Ronald Melton.
In addition, husband told wife that he had never used a condom or any other type of protection to guard against the transmission of sexually-transmitted diseases to wife, with whom he was also sexually active during the period of his adulteries. "Totally numb" upon hearing this news, wife felt like her "entire life ha[d] been turned upside down." She particularly feared for her health, given the risk of contracting a sexually transmitted disease from her promiscuous husband. Wife stood by "in a state of shock" as husband then packed his belongings and moved out of the home.
A few months later, husband asked if wife would forgive him and consent to him moving back into the marital home. Wife asked him directly if he would "give up his adulterous lifestyle." Husband said he would not. Under such circumstances, wife testified, she would not agree to condone husband's infidelities and to resume cohabitation with him.
During the period of separation, husband continued to display aberrant behavior. He broke into wife's car while she was at a restaurant and, after initially denying that he did so, admitted tearing pages out of wife's journals left in her car. He also entered the home while wife was away and placed items of lingerie on wife's bed — which wife interpreted as a mocking and offensive gesture.
Husband also treated his young children poorly. "Many times," wife testified, he yelled at her in front of the children, including one episode where he called her "an F'ing B" in their presence. In addition, despite a court order forbidding him from doing so, husband exposed his young daughters to his girlfriend — resulting in a contempt of court conviction. And on two occasions, husband forfeited his opportunity for visitation with his daughters so he could vacation with a paramour.
The trial court awarded wife a divorce based on husband's cruelty and constructive desertion. The chancellor also awarded wife sole legal and physical custody of the children, spousal support at $2,000 a month, and child support at $824.52 a month. In the equitable distribution award, the chancellor transferred the marital home to wife and allowed husband to retain substantial funds within his retirement accounts. Husband filed forty-nine exceptions to the final decree.
Rule 5A:20(e) requires the appellant's brief to include, among other things, the "principles of law, the argument, and the authorities relating to each question presented." Statements unsupported by "argument, authority, or citations to the record" do not merit appellate consideration. Thomas v. Commonwealth, 38 Va. App. 319, 321 n.1, 563 S.E.2d 406, 407 n.1 (2002); Dickerson v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d 230, 234 (2001); Bennett v. Commonwealth, 35 Va. App. 442, 452, 546 S.E.2d 209, 213 (2001); Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
Husband asserts on appeal twenty-nine assignments of error. On questions 6, 9, 10, 11, 12, 13, 14, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28, husband's brief provides inadequate citation either to the record or to supporting principles of law. Instead, on these points, husband's brief addresses the subject in a cursory, perfunctory manner. Rule 5A:20(e) precludes our review of these issues in the face of such an inadequate attempt at appellate advocacy.
On the issues that remain, we begin our analysis by restating basic principles governing the standard of appellate review — a subject that intersects nearly every argument husband makes in this appeal.
"Under Code § 8.01-680, a factual determination cannot be reversed on appeal unless 'plainly wrong or without evidence to support it.'" Congdon, 40 Va. App. at 261, 578 S.E.2d at 836 (citation omitted); Torian v. Torian, 38 Va. App. 167, 181, 562 S.E.2d 355, 362 (2002). This standard applies to a trial court's decision regarding divorce, Hughes v. Hughes, 33 Va. App. 141, 145-46, 531 S.E.2d 645, 647 (2000), child custody and visitation, Albert v. Albert, 38 Va. App. 284, 294, 563 S.E.2d 389, 394 (2002), spousal support, Congdon, 40 Va. App. at 261, 578 S.E.2d at 836, child support, Joynes v. Payne, 36 Va. App. 401, 424, 551 S.E.2d 10, 21 (2001), equitable distribution, Thomas v. Thomas, 40 Va. App. 639, 644, 580 S.E.2d 503, 505 (2003), and attorney's fees, Northcutt v. Northcutt, 39 Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002). Under this standard, we do not "retry the facts or substitute our view of the facts for those of the trial court." Congdon, 40 Va. App. at 266, 578 S.E.2d at 838 (citation omitted).
Moreover, we will overturn a decision committed to the chancellor's sound discretion only upon a showing that she abused that discretion. An abuse of discretion can be found if the trial court uses "an improper legal standard in exercising its discretionary function" or fails "to consider the statutory factors required to be part of the decisionmaking process." Id. (citation and internal quotation marks omitted).
Husband challenges the grounds upon which the chancellor granted wife a final divorce. The trial court erred, husband argues, by finding him guilty of cruelty and constructive desertion and by not finding wife guilty of desertion in "barring Mr. Shaffer's return to the residence" after he decided he wanted to come home. In the alternative, husband contends that the trial court should have granted the divorce on no-fault grounds pursuant to Code § 20-91(9)(a). We disagree with each of these assertions.
Cruelty consists of "anything that tends to bodily harm and thus renders cohabitation unsafe" or "involves danger of life, limb or health." Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986) ). Constructive desertion occurs "where the conduct of the other spouse has caused conditions in the marital home to be intolerable" to the point that the affected spouse has to leave. Gottlieb v. Gottlieb, 19 Va. App. 77, 82, 448 S.E.2d 666, 669 (1994) (quoting Kerr v. Kerr, 6 Va. App. 620, 623, 371 S.E.2d 30, 32 (1988)).
The chancellor did not plainly err in finding husband guilty of cruelty and constructive desertion. By engaging in sexual intercourse with multiple paramours without any form of protection against sexually transmitted diseases, and then continuing to have sex with his unsuspecting wife, husband rendered "cohabitation unsafe" for cruelty purposes, Zinkhan, 2 Va. App. at 208, 342 S.E.2d at 662 (citation omitted), and palpably "intolerable" for constructive desertion purposes, Gottlieb, 19 Va. App. at 82, 448 S.E.2d at 669 (citation omitted). To...
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