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Battle v. Battle

Court of Appeals of Virginia
Sep 6, 1994
Record No. 0658-94-2 (Va. Ct. App. Sep. 6, 1994)

Opinion

Record No. 0658-94-2

Decided: September 6, 1994

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, John F. Daffron, Jr., Judge

Affirmed.

(Robert L. Lichtenstein; Eliades Butterworth, on brief), for appellant.

(C. B. Neblett, Jr., on brief), for appellee.

Present: Chief Judge Moon, Senior Judges Cole and Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Edward Daniel Battle (husband) appeals the decision of the circuit court awarding a divorce and spousal support to Myrtle Victoria Williams Battle (wife). Husband raises three issues on appeal: (1) whether the circuit court erred by awarding spousal support to wife without considering all the factors specified in Code Sec. 20-107.1; (2) whether the circuit court abused its discretion in awarding spousal support to wife; and (3) whether the circuit court erred in granting wife a divorce on the grounds of mental and physical cruelty. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.

The evidence consisted mainly of the depositions taken on September 11, 1990, and June 29, 1992. The court also heard testimony from the parties during its hearing on September 2, 1993 that they had lived separate and apart since June 1992. "The rule is firmly established in Virginia that a divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard ore tenus, but such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence." Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986) (citation omitted).

Grounds for Divorce

After reviewing the evidence, the trial court found husband's denial that he abused wife "unreliable and incredible." Wife testified husband abused her, and presented documentation in the form of medical records corroborating her complaints. Essie McDonald testified she saw wife after she had been beaten several times and observed that wife was afraid of husband. The trial court granted wife a divorce on the grounds of husband's cruelty.

Substantial, competent, and credible evidence supports the trial court's decision to award wife a divorce on the grounds of husband's cruelty. Therefore, we affirm the trial court's decision.

Spousal Support

"The determination whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the 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). "When the court does not quantify or elaborate on what weight or consideration it has given each factor [in Code Sec. 20-107.1], we must examine the record to determine if the award is supported by evidence relevant to those factors." Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523 (1988).

Husband is employed, receiving approximately $20,000 a year in salary and a military pension of approximately $12,000 a year. Husband also has a retirement plan and receives medical benefits as a result of his former military service. Husband owns a mobile home, on which he owes more than its assessed value.

The parties lived together for less than one year, and acquired marital assets valued at $750, which were to be divided equally between them. The court also awarded wife fifty percent of husband's pension from his current employment.

In light of this evidence relating to the statutory factors found in Code Sec. 20-107.1, we cannot say the trial court's award of $300 a month in spousal support to wife was unjust or an abuse of discretion.

Accordingly, the decision of the trial court is affirmed.

Affirmed.


Summaries of

Battle v. Battle

Court of Appeals of Virginia
Sep 6, 1994
Record No. 0658-94-2 (Va. Ct. App. Sep. 6, 1994)
Case details for

Battle v. Battle

Case Details

Full title:EDWARD DANIEL BATTLE v. MYRTLE VICTORIA WILLIAMS BATTLE

Court:Court of Appeals of Virginia

Date published: Sep 6, 1994

Citations

Record No. 0658-94-2 (Va. Ct. App. Sep. 6, 1994)