Will a court award spousal support to a wife despite her admitted adultery during the marriage?
Yes, in the case of Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003) , where the Virginia Court of Appeals, affirmed the decision of the trial court awarding spousal support to the wife despite her admissions of adultery during the marriage.
The husband and wife were married for twenty-two years before the husband filed for divorce on the grounds of adultery by the wife. The wife filed a cross-bill alleging cruelty and constructive desertion. The wife admitted at trial that she had committed adultery and did not contest husband’s request for a divorce on that fault ground. The evidence established that the wife had engaged in an ongoing adulterous affair for five years during the marriage. The evidence also established that the husband was profane and verbally abusive during the entire marriage. He was a heavy drinker who attended strip clubs and topless bars, and often talked about his activities in a profane manner. He cursed at his children without justification. The husband showed little affection or gentleness toward his wife, complaining about her weight and household failings.
The husband was a college graduate and a successful businessman who owned a trucking company, amassed considerable investments, and earned a high income. The wife did not graduate from college, worked in the home and hourly on a part-time basis outside the home as a receptionist. The husband’s family gave him stock in their trucking company, which increased considerably in value during the marriage.
After hearing and receiving the evidence, the trial court judge held that barring the wife from receiving spousal support would be a manifest injustice under Virginia Code §20-107.1(B) because of the disparity in the parties’ relative financial circumstances. The judge awarded $2,300 in permanent spousal support or alimony per month to wife, until her death or remarriage. The husband appealed the court’s support decision and the wife appealed the trial court’s classification of the trucking company stock as 90% separate and 10% marital.
The Virginia Court of Appeals first recognized the applicable standard for reviewing a decision to award spousal support despite the adultery of the recipient spouse as being the same for any other fact determination by the trial court judge – the finding will stand unless plainly wrong or without evidence to support it, citing Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992) and Torian v. Torian, 38 Va. App. 167, 181, 562 S.E.2d 355, 362 (2002) . Further, the appellate court recognized that the trial court is vested with the discretion to decide whether to award support and the amount of any support award. Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002). An abuse of such discretion occurs in the event of 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 (1996)), or a failure to consider statutory factors, Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d 760, 767 (1997), or findings that are plainly wrong or without evidence to support them, Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002).
The Virginia Court of Appeals then analyzed the narrow exception to the general rule that adultery bars an award of spousal support, as set forth in Virginia Code § 20-107.1(B). The court noted that the exception to the bar is limited in three ways: (1.) it requires the intermediate proof standard of “clear and convincing evidence”; (2.) it applies only in case of “manifest injustice”, a phrase which has been other been associated elsewhere in the code with a miscarriage of justice; and (3.) it limits the fact finder to considering only the relative degrees of fault of the parties and the economic disparity between the parties. Further, the “based upon” language in the statute requires a higher level of justification than the usual “consideration of” factors language.
In Congdon, the trial court erroneously disagreed with the husband’s argument that the court must consider both relative degrees of fault and economic disparity, and held that either prong would be sufficient to overcome the bar against awarding support, relying on Calvin v. Calvin, 31 Va. App. 181, 186, 522 S.E.2d 376, 378 (1999) for support. While the appellate court disagreed with the trial court’s statement of the law, citing Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298 (1993) , the court nevertheless upheld the resulting decision by the trial court. The Calvin case did not concern whether both prongs must be considered, but merely noted in that case that the respective degrees of fault were so heavily weighted in the husband’s favor, that economic disparity would determine the outcome. Not only was the trial court judge’s reliance on the Calvin case misplaced, but the appellate court also noted that the doctrine of stare decisis applied not only to the literal holding of precedent but also the rationale, in ruling that Calvin did not overrule Barnes. In fact, the Calvin case cited the Barnes case in its opinion.
As the divorce court judge in Congdon had made alternate fact findings, considering both prongs for manifest injustice on the record, the appellate court was able to base its decision on the husband’s behavior during the marriage, so the relative degrees of fault did not weigh solely against the wife. There was an adequate factual basis in the record for a finding of manifest injustice by the trial judge based both on the respective degrees of fault and the extreme disparities in relative economic situations. The trial court did properly weigh wife’s adultery against the husband’s base and profane behavior over the course of the marriage, without considering whether it was justified. There was substantial evidence supporting the trial court’s finding of the extreme economic disparity between the husband and the wife. As the judge’s support decision was not plainly wrong or without evidence to support it, it was affirmed on appeal.
The appellate court also affirmed the trial court’s classification of the trucking company stock as 90% separate and 10% marital. The husband had introduced evidence showing that considerable gain was due to passive appreciation and the efforts of others. There was sufficient evidence for the trial court to find that husband’s efforts contributed to only 10% of the gain in value of the stock.
You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss whether adultery might bar an award of permanent spousal support or alimony in your case.