Brian Patrick Calvin v Elizabeth Jane Calvin

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
BRIAN PATRICK CALVIN
OPINION BY
v. 	Record No. 0384-99-1 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 21, 1999
ELIZABETH JANE CALVIN
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Stephen Merrill (Ghent Law Offices, on
brief), for appellant.
No brief or argument for appellee1.
1 Appellee filed no brief. 	Shortly before the date
scheduled for oral argument, appellee moved to be permitted to
argue orally. 	No good cause being shown for appellee's failure
to file a brief, the motion is denied. 	See Rule 5A:26.
On appeal from a final divorce decree, Brian Patrick Calvin
contends that the trial court erred in (1) awarding substantial
spousal support to a spouse who has committed adultery in the
absence of a showing of fault by the payor spouse, (2)
calculating the amount of spousal support payments, and (3)
allowing the taking of additional evidence following completion
of the record. 	Because we find no abuse of discretion, we
affirm the judgment of the trial court.

I. 	Background
"On appeal, we review the evidence in the light most
favorable to the prevailing party below . . . . 	Where the
record contains credible evidence in support of the findings
made by that court, we may not retry the facts or substitute our
view of the facts for those of the trial court." 	Ferguson v.
Stafford County Dep't of Social Servs., 14 Va. App. 333, 336,
417 S.E.2d 1, 2 (1992) (citation omitted).
Brian Patrick Calvin and Elizabeth Jane Calvin were married
on May 3, 1986. 	They have two sons, one born of the marriage
and one born to Mrs. Calvin and adopted by Mr. Calvin. 	The
couple separated permanently in August 1994. 	Mrs. Calvin sued
for divorce on the ground of desertion. 	Mr. Calvin filed a
cross-bill alleging adultery. 	The commissioner found that Mrs.
Calvin was vindictive and cruel to Mr. Calvin, that she
destroyed the couple's property at Mr. Calvin's expense, and
that she committed adultery. 	The commissioner recommended that
a divorce be granted to Mr. Calvin on the ground of Mrs.
Calvin's adultery.
On Mrs. Calvin's motion, the trial court re-referred the
case to the commissioner, who heard new evidence concerning Mrs.
Calvin's back surgery and its effects on her employment. 	Mrs.
Calvin testified that she had trouble obtaining new employment
and that she could not afford health insurance. 	On September 1,
1998, the commissioner supplemented his original report with a
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recommendation that Mr. Calvin be ordered to pay a lump sum of
$10,080 in spousal support. 	The trial court affirmed the
commissioner's findings. 	On January 22, 1999, it granted Mr.
Calvin a divorce on the ground of adultery. 	Ruling that the
denial of spousal support to Mrs. Calvin "would be a manifest
injustice given her health condition, her reliance during the
marriage on the financial support of [Mr. Calvin] and her
present lack of health insurance coverage," the trial court
ordered Mr. Calvin to pay Mrs. Calvin $10,080 lump sum spousal
support over a three year period.2
II. 	Taking of Additional Evidence
We first consider whether the trial court erred in ordering
the commissioner to reconsider an award of spousal support.
Mrs. Calvin presented new evidence regarding her health problems
and their effect on her ability to work and to secure health
insurance coverage. 	The commissioner heard new evidence on this
issue only. 	He reported that Mrs. Calvin's health had
deteriorated following the initial hearing and that her
inability to work full time and to obtain health insurance
required an award of spousal support to avoid a manifest
injustice. 	The evidence supports that finding.
2 The parties have not questioned on appeal whether the
circumstances in this case justify the trial court's decision to
award alimony as a lump sum. 	See Blank v. Blank, 10 Va. App. 1,
5-6, 389 S.E.2d 723, 725-26 (1990). 	Therefore, we do not
address that issue.
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Mr. Calvin contends that the re-referral and taking of
further evidence was error. 	"The granting or denying of a
motion to hear additional evidence is within the sound
discretion of the trial court." 	Rowe v. Rowe, 24 Va. App. 123,
144, 480 S.E.2d 760, 770 (1997) (citing Morris v. Morris, 3 Va.
App. 303, 307, 349 S.E.2d 661, 663 (1986)). 	The evidence at
issue addressed whether a denial of spousal support would
"constitute a manifest injustice." 	See Code § 20-107.1.
Finding no abuse of discretion, we affirm the trial court's
determination that new evidence on this subject should be
considered.
III. 	Spousal Support
Mr. Calvin contends that the trial court erred in awarding
Mrs. Calvin spousal support because the divorce was granted on
the ground of her adultery. 	He argues further that the amount
of the spousal support was erroneous.
[N]o 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. 	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 maintenance would constitute
a manifest injustice, based upon the
respective degrees of fault during the
marriage and the relative economic
circumstances of the parties.
Code § 20-107.1(B).
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Generally, a spouse who commits adultery is not entitled to
spousal support. 	However, we have previously ruled as follows:
While the husband correctly argues that Code
§ 20-107.1 identifies adultery as the single
fault ground for divorce which precludes
"permanent maintenance and support" to the
offending spouse, this limitation is not
absolute. 	Notwithstanding a finding of
adultery, a court "may award" spousal
support, provided "the court determines from
clear and convincing evidence, that a denial
of . . . [such support] would constitute a
manifest injustice, based upon the
respective degrees of fault during the
marriage and the relative economic
circumstances of the parties."
Williams v. Williams, 14 Va. App. 217, 220-21, 415 S.E.2d 252,
254 (1992) (citation omitted).
The respective degrees of fault in this case weigh heavily
in favor of Mr. Calvin. 	Therefore, any "manifest injustice"
resulting from a denial of spousal support must derive from the
"relative economic circumstances of the parties." 	Mrs. Calvin
testified clearly and without contradiction at the supplemental
commissioner's hearing that she had undergone back surgery and
had lost her job. 	Although she admitted that at the time of the
hearing she had found other employment, her job was part-time
and provided less income than her previous employment. 	She
testified that she could neither secure health insurance through
her employment, nor afford it on her own.
The commissioner reported that "Mrs. Calvin's health has
deteriorated since [the initial hearing]. . . . 	Given Mrs.
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Calvin's medical history, her current medical condition which
requires continued medical treatment, her lack of health
insurance, and the fact that Mr. Calvin has almost wholly
supported her during the marriage, [the] commissioner finds that
a denial of spousal support would constitute a 'manifest
injustice' under . . . Code § 20-107.1." 	The commissioner
recommended an award of $10,080 support payable to Mrs. Calvin
over a three year period "in order to provide [her] with funding
sufficient to cover her medical expenses and adequate time in
which to procure medical benefits and full time employment."
Overruling Mr. Calvin's exception, the trial court accepted this
recommendation. 	Clear and convincing evidence supports that
decision.
"In regard to the amount of the spousal support award, we
will reverse an award on that basis only for an abuse of
discretion or the judge's failure to consider all the factors
set forth in Code § 20-107.1." 	Barnes v. Barnes, 16 Va. App.
98, 103, 428 S.E.2d 294, 298 (1993) (citation omitted). 	"The
determination whether a spouse is entitled to support, and if so
how much, is a matter within the discretion of the trial court
and will not be disturbed on appeal unless it is clear that some
injustice has been done." 	Dukelow v. Dukelow, 2 Va. App. 21,
27, 341 S.E.2d 208, 211 (1986).
The award of spousal support "'will not be disturbed except
for a clear abuse of discretion.'" 	Dodge v. Dodge, 2 Va. App.
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238, 246, 343 S.E.2d 363, 367 (1986) (citation omitted). 	We
find no such abuse. 	Credible evidence in the record establishes
that the amount of support ordered is consistent with Mrs.
Calvin's needs and Mr. Calvin's ability to pay.
The judgment of the trial court is affirmed.
Affirmed.
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