Wright v. Wright

• Citation: 38 Va. App. 394,564 S.E.2d 702
• Decision Date: 18 June 2002
• Docket Number: Record No. 1175-01-4.
• Court: Virginia Court of Appeals
• Parties: Clifford E. WRIGHT v. Sallie D. WRIGHT.

564 S.E.2d 702

38 Va. App. 394

Clifford E. WRIGHT v. Sallie D. WRIGHT.

Record No. 1175-01-4.

Court of Appeals of Virginia, at Alexandria.

June 18, 2002.

Christine Mougin-Boal (Paice & Mougin-Boal, P.C., on briefs), Leesburg, for appellant.

Ann B. Vance (Carr & Vance, P.C., on brief), Leesburg, for appellee.

Present: FITZPATRICK, C.J., FRANK and CLEMENTS, JJ.

FITZPATRICK, Chief Judge.

In this domestic relations case, Clifford E. Wright (husband) appeals the trial court's award of spousal support and attorney's fees. On appeal, he contends the trial court erred by: (1) using Code § 20-107.1 to determine an award of final spousal support rather than Code § 20-109; (2) finding husband failed to prove adultery as a bar to spousal support pursuant to Code § 20-91(1); (3) finding husband had a greater degree of fault in the breakup of the marriage; (4) finding wife was unable to work due to her physical and mental disabilities; and (5) abused its discretion in awarding an excessive amount of spousal support and attorney's fees. Finding no error, we affirm.

I. BACKGROUND

On appeal, we construe the evidence in the light most favorable to wife, the prevailing party below, granting to that evidence all reasonable inferences fairly deducible therefrom. See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995)

(citing McGuire v. McGuire, 10 Va.App. 248, 250, 391 S.E.2d 344, 346 (1990)).

So viewed, the evidence established that the parties were married on August 6, 1983 and separated June 27, 1994. There were no children born of the marriage. Husband left the marital home at wife's request. On March 6, 1997, a consent order was entered by the Loudoun County Juvenile and Domestic Relations District Court ordering $500 a month temporary spousal support. The parties had no property settlement agreement but resolved all issues prior to trial other than the grounds for divorce, spousal support and attorney's fees. Neither husband nor wife alleged a fault ground of divorce in their pleadings.

Husband, a truck driver, has an annual income of approximately $41,000. He has lived with his girlfriend on and off since the parties separated. During the marriage, the relationship between husband and wife was replete with allegations of physical and mental abuse on both sides. Husband admitted to having physical altercations with wife during which he broke her toe and ribs on one occasion and "mess[ed] her eye all up" on another. Wife admitted she tried to stab husband and that there were problems throughout the marriage. Both drank heavily. The trial court found "both parties have trouble recalling the events" described above.

Wife did not work consistently during the marriage. At the time of the trial, wife was unemployed and received social security income of $32 per month plus food stamps of $117 per month. She showed a monthly need of $1,381 per month.¹ While the parties were living together, wife was involved in a serious car accident in which she sustained a skull fracture and a large laceration on her forehead. After extensive medical treatment for the injuries sustained in the accident and her pre-existing mental and physical problems, Dr. Richard T. Leschak diagnosed her with chronic cognitive complaints due to a combination of 1) significant head injury with loss of consciousness, 2) medications which can affect cognitive functioning, 3) psychiatric problems that make her anxious and depressed, and 4) sleep disorder. Additional medical reports diagnosed her as bipolar and suffering from hallucinations. She has congenital bilateral hearing loss that requires hearing aids, has twice been hospitalized for psychiatric problems and has attempted suicide.

Wife currently lives with Mike Woods and his mother in Woods' mother's home. She rents two rooms. Prior to moving in with Mr. Woods' mother, she was living with Mike Woods at a home she rented. She admitted to having had sexual relations with Woods two or three times after the parties separated. This occurred after her hospitalization for a suicide attempt, and she denied further relations.

In a letter opinion, dated December 6, 2000, the trial court granted wife a divorce based on separation for more than one year. The trial court analyzed husband's argument that the initial determination of whether wife should receive spousal support should be determined under Code § 20-109 rather than Code § 20-107.1. He found that "[Code § ] 20-109 deals with the modification of final awards and not the situation [of the determination of an initial support award]."² The trial court then found that husband had not proven a ground for divorce under Code § 20-91(1) that would be a bar to an award of spousal support under Code § 20-107.1 and that the "respective degrees of fault" weigh more heavily against husband. The trial court also noted:

[h]ad this finding [a ground for divorce under Code § 20-91(1) (adultery) that would be a bar to spousal support] been made, I believe that there is 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.

He then considered the requisite factors under Code § 20-107.1(E) in determining spousal support and found wife's mental condition to be the substantial factor in the determination of spousal support.

[W]ife has a very serious bi-polar [sic] disorder and ... she is absolutely unable to be employed. She is not able to hold a job in any capacity at this time or in the future. She also has a neurological problem and suffered a closed head injury from an auto accident. She is severely, chronically, malignantly afflicted with this psychiatric disorder. She has extreme depression and mania, including hallucinations and delusions at times when it is worse. She does not respond well to medication. Her memory is very bad ... [S]he suffers from a' hypothyroid disorder, a GI disorder, psychiatric illness, menopause symptoms and elevated cholesterol .... She has limited memory recall and hearing loss.

* * * * *

The [wife] is in a desperate situation. She has to rely on others to remind her to go to her appointments. She receives food stamps, limited SSI and has limited resources. She suffers from a serious mental illness and has cognitive difficulties. The fact that she is able to go to the [bar] and dance and consume alcohol that is contraindicated due to her medication does not alter the fact that she is almost totally dependent on her husband and is unable to be employed. The social security she received has now been cut dramatically and she is in debt. She lives a very modest life and has very modest needs .. . . The circumstances of this case do not permit an award that will meet the wife's needs fully however I believe that support should be fixed at $750.00 per month effective December 1, 2000. The attorney for the wife is awarded attorney fees of $1500 to be paid within 180 days.

On husband's motion to reconsider, the trial judge amended the grant of the divorce to wife and granted both parties a divorce on the ground of separation for more than one year. The final decree of divorce was entered April 2, 2001.

II. CODE §§ 20-109 AND 20-107.1(E)

Husband first contends that the trial court erred in determining his spousal support obligation using Code § 20-107.1 rather than Code § 20-109. He argues that the language of Code § 20-107.1(B), "any maintenance and support shall be subject to the provisions of Code § 20-109," requires that the final support award be governed by the additional dictates of Code § 20-109. We disagree and hold that Code § 20-107.1 establishes the criteria to be used for the initial setting of spousal support and that Code § 20-109 applies to a modification of that award. The language relied upon by husband denotes only that a final support award properly calculated using Code § 20-107.1 factors is subject to later modification under the criteria established in Code § 20-109.

"Where a statute is unambiguous, the plain meaning is to be accepted without resort to the rules of statutory interpretation." Last v. Virginia State Bd. of Med., 14 Va.App. 906, 910, 421 S.E.2d 201, 205 (1992). "Unless a literal construction of a statute would result in internally conflicting provisions amounting to a manifest absurdity, courts cannot construe a statute in a manner that would result in holding the legislature did not mean what it actually expressed." Id. at 910, 421 S.E.2d at 205 (internal citations omitted). "[W]hen analyzing a statute, we must assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute." City of Virginia Beach v. ESG Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (internal citations omitted).

Code § 20-107.1 provides in pertinent part:

Court may decree as to maintenance and support of spouses.

A. [U]pon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may ... decree as it deems expedient concerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.

Code § 20-107.1(B) provides:

Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91.³ However, 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

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