Opinion
Record No. 1102-92-3
September 28, 1993
FROM THE CIRCUIT COURT OF PULASKI COUNTY A. DOW OWENS, JUDGE.
Randolph D. Eley, Jr. (James E. Cornwell, Jr., on brief), for appellant.
Deborah W. Dobbins (Robert J. Ingram; Gilmer, Sadler, Ingram, Sutherland Hutton, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Richard Paul Best (husband) and Paula Jenkins Best (wife) were divorced by decree of the trial court entered on May 28, 1992. Husband contends on appeal that the trial judge erred in (1) "refusing" to grant a divorce on fault grounds, (2) awarding "alimony" to wife, (3) distributing the marital estate, and (4) ignoring his "pleas of condonation and recrimination." We disagree and affirm the decision.
The parties are fully conversant with the voluminous record in the cause, and a recitation of the facts is unnecessary to this memorandum opinion.
Evidence was heard ore tenus both before a commissioner in chancery and the trial judge. Under familiar principles, we must "'view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where . . . the court hears . . . evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'"Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania Dept. of Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986));Williams v. Williams, 14 Va. App. 217, 219-20, 415 S.E.2d 252, 253 (1992). Although a decree based upon depositions is "'not as strong and conclusive as one based on evidence heard ore tenus, [it, also, is] presumed to be correct . . . [and] will not be reversed if . . . reasonably supported by substantial, competent and credible evidence.'" Martin v. Martin, 202 Va. 769, 773, 120 S.E.2d 471, 474 (1961) (quoting Canavos v. Canavos, 200 Va. 861, 866, 108 S.E.2d 359, 363 (1959)); see also Williams, 14 Va. App. at 219, 415 S.E.2d at 253. The "burden is on him who seeks to overturn it to show that it is manifestly wrong." Canavos, 200 Va. at 866, 108 S.E.2d at 363.
Similarly, the findings of a commissioner "should be sustained by a trial court unless . . . not supported by the evidence," "especially . . . when . . . based upon evidence taken in his presence." Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987) (citations omitted). On appeal, "a decree that has confirmed a commissioner's report is presumed . . . correct and will be affirmed unless plainly wrong." Id. (citations omitted); Scinaldi v. Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986).
Initially, husband complains that, despite "clear" evidence of wife's adultery and desertion, the trial court did not "grant a divorce on either ground." However, one ground of divorce is entitled to no precedence over another. Williams, 14 Va. App. at 220, 415 S.E.2d at 254 (quoting Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989)). "Where dual or multiple grounds for divorce exist, the trial judge can use his sound discretion to select the grounds upon which he will grant the divorce." Id. It is undisputed that the parties had been separated in excess of one year at the time of the final decree. Therefore, irrespective of the adultery and desertion proofs in the instant case, the divorce was properly awarded pursuant to Code § 20-91(9)(a), and condonation and recrimination are no longer pertinent issues.
We are mindful that a party granted a divorce pursuant to Code § 20-91(9) may be relieved of "any obligation . . . to support the spouse" upon proof "that there exists in the favor of such party some other ground of divorce," Code § 20-91(9)(c), and that adultery precludes spousal support to the offending spouse absent "clear and convincing evidence" of a resulting "manifest injustice." Code § 20-107.1; see Williams, 14 Va. App. at 220-21, 415 S.E.2d at 254; Barnes v. Barnes, ___ Va. App. ___, ___, 428 S.E.2d 294, 297 (1993). Similarly, the "circumstances and factors which contributed to the dissolution of the marriage, . . . including any ground for divorce," must be considered by the trial judge in equitably distributing the marital estate. Code § 20-107.3(E) (5). Thus, marital fault remains a relevant circumstance to the consideration of these issues.
Here, the commissioner thoroughly and correctly reported the substantial evidence relevant to the alleged adultery and desertion and the issues of both spousal support and equitable distribution, specifically reciting consideration of those statutory factors essential to his findings and recommendations. The trial judge likewise acknowledged consideration of this evidence and the related factors and resolved the issues of marital fault, spousal support and equitable distribution in a fashion supported by the record. When viewed in the proper perspective and with appropriate deference, such circumstances suggest no abuse of discretion, and the decree will not be disturbed on appeal. See Williams, 14 Va. App. at 221, 415 S.E.2d at 254; Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523 (1988).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.