Opinion
Record No. 1831-92-2
July 27, 1993
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY F. WARD HARKRADER, JR., JUDGE.
Francis L. Buck (Buck, Hogshire Tereskerz, on brief), for appellant.
No brief or argument for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William Wood Hankins, husband, appeals the trial court's findings in his divorce decree. We affirm and hold (1) the trial court did not commit reversible error in granting a divorce based on the parties having lived separate and apart for one year, notwithstanding the evidence of a fault ground, and (2) the trial court did not err in awarding wife $200 per month in spousal support.
On November 20, 1988, Gail Lee Hankins, wife, and husband were married. On January 5, 1990, wife left the marital home permanently. Wife filed her bill of complaint on February 1, 1990 on the ground of husband's constructive desertion. Husband filed an answer and cross-bill asking for a divorce based on wife's desertion.
At a hearing on August 21, 1990, incorporated into an order entered on January 2, 1991, the court ruled that insufficient credible evidence established any ground of fault entitling wife to a divorce. The court also denied husband's cross-bill for divorce based on his wife's desertion.
Evidence was heard on February 20, 1992, regarding the factors enumerated in Code § 20-107.1 pertaining to spousal support. The court awarded wife $200 per month spousal support in its final decree of August 19, 1992.
I.
Husband contends that he made out a prima facie case of desertion by wife, which wife did not rebut, and that the trial court erred in awarding the divorce on the ground of the parties having lived separate and apart for one year.
We hold that the issue of whether the trial court committed error is moot, because a different finding on the issue of desertion would have had no effect upon the spousal support issue. The existence of the fault ground of desertion is not a factor to be considered in determining the award of spousal support. Dexter v. Dexter, 7 Va. App. 36, 43 n. 4, 371 S.E.2d 816, 820 n. 4 (1988). Furthermore, assuming uncontradicted evidence of desertion, the trial court could nonetheless, award the divorce on the ground of the parties having lived separate and apart. Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663 (1986).
II.
Husband also contends that the court erred in awarding wife $200 per month spousal support pursuant to Code § 20-107.1.
When the record discloses that the trial court considered all of the statutory factors, the court's ruling will not be disturbed on appeal unless there has been a clear abuse of discretion. Calamos v. Calamos, 4 Va. App. 96, 100, 354 S.E.2d 102, 105 (1987).
The trial court discussed all of the factors of Code § 20-107.1 and all of the evidence in its final decree. We find no abuse of discretion in awarding wife $200 in light of the trial court's consideration of the factors and evidence.
Husband contends that the trial court also erred in considering his separate property when determining the issue of spousal support pursuant to Code § 20-107.1(7), because the parties' pre-nuptial agreement stated that the separate property of each party would be free from all claims of the non-owning party in a dispute caused by the marriage. However, husband admits that the pre-nuptial agreement is silent on the issue of spousal support. His contention that the pre-nuptial agreement bars any consideration of his separate property in determining spousal support is incorrect. If the parties intended an agreement on the issue of spousal support, the agreement should have reflected that issue.
To the contrary, the language in the pre-nuptial agreement only bars claims on separate property. We hold that this language does not bar the mere consideration of the parties' separate property pursuant to Code § 20-107.1(7), involving consideration of each party's separate property when determining any amount of spousal support.
Accordingly, we hold the trial court did not err in awarding wife $200 per month spousal support.
Affirmed.