Opinion
Record No. 0322-94-1
Decided: September 27, 1994
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, William L. Forbes, Judge
Affirmed.
(Henry M. Schwan, on brief), for appellant.
No brief for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Melvin P. Sidwell (husband) appeals the decision of the circuit court awarding Joan S. Sidwell (wife) permanent monthly spousal support. Husband contends that the court erred in affirming the commissioner in chancery's finding that, despite wife's adultery and legal fault in the breakdown of the marriage, it would be manifestly unjust not to award wife spousal support. Upon reviewing the record and opening brief, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
The evidence was heard by a commissioner in chancery. "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1985).
Any maintenance and support shall be subject to the limitations set forth in Sec. 20-109, and no 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 Sec. 20-91 (1). 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. The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments, or in a lump sum award, or both.
Code Sec. 20-107.1 (emphasis added).
The commissioner found that husband should pay wife support of $600.00 per month. In so concluding, he stated:
This marriage had been irretrievably lost due to gradual dissolution caused by mutual fault from both parties. Even though the circumstantial evidence points to post separation adultery, it is your Commissioner's opinion that there is no bar to spousal support. For the Commissioner not to recommend some support to the complainant would be a "manifest injustice."
Husband excepted to this conclusion, noting:
That the Commissioner's recommended amount of spousal support and his failure to state the period of time that such spousal support is to be paid, leads to the conclusion that such support is for an indefinite period of time and that such an amount and period is erroneous and plainly wrong given the complainant's repeated assertion in various forms throughout the transcript that she does not wish to work, and that said support, if any, should be only for a limited period of time to allow for job procurement on the part of the complainant.
The trial judge denied husband's exception.
Husband's exception addressed only the "relative economic circumstances of the parties" issue contained in Code Sec. 20-107.1. It did not address the "respective degrees of fault during the marriage" issue. Accordingly, we will not address that issue on appeal. "[P]arts of the commissioner's report not excepted to are 'considered as admitted to be correct,' as the party excepting ' "must put his finger on the error" that the court may see what it has to decide.' It is too late to do so for the first time on appeal." McLaughlin v. McLaughlin, 2 Va. App. 463, 470, 346 S.E.2d 535, 539 (1986) (citation omitted). See Rule 5A:18.
Husband contends that wife should not be awarded spousal support because she remains unemployed voluntarily, and has others means to increase her income, including charging her adult daughter rent and obtaining money from a friend. Wife's estimated gross monthly income, without spousal support, was $400.00, while her expenses totaled more than $1,800.00. By contrast, husband's monthly income exceeded $3,000.00. While wife had worked at various jobs, she had not been employed full time for many years. Wife also was on medication for a heart condition. The record does not support husband's contention that wife is voluntarily unemployed or underemployed. Due to her lengthy history without full-time employment, it was not plainly wrong for the trial judge to conclude that she should not have income imputed to her. Rather, substantial credible evidence supports the trial court's decision to award wife spousal support.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.