In this divorce case, the husband appealed the trial court’s decision to grant spousal support to the wife notwithstanding her adultery, based on the court’s finding that manifest injustice would otherwise result. The appellant and the appellee were married for 20 years and had two children. The appellant had a stable career in the trucking business and earned $250,000 per year and had assets totaling more than $6 million. The appellee was the primary caretaker for the children and worked part-time as a receptionist earning $10 an hour. She did not contest that she had an affair for at least five years during the marriage. The court noted, however, that the evidence “portrayed the appellant as a profane and verbally abusive man,” who frequented “strip joints and topless bars,” and frequently boasted and bragged about these experiences in lewd terms in front of the appellee and their children. He was also verbally abusive to his children. Several witnesses testified that “they had never once seen [him] show any affection or any kindness toward [his wife],” and that he “chronically complained” to the appellee and others about her “weight, appearance, housekeeping, and spending habits.” The trial court explained that Va. Code § 20-107.1(B)the law precludes an award of support to any spouse found guilty of adultery, subject to narrow exceptions, including when the trial court determines from “clear and convincing evidence, that denial of support and maintenance would constitute manifest injustice, based upon the respective degrees of fault during the marriage or relative economic circumstances of the parties. The question before the court was whether the trial court committed a reversible error in stating that the statutory standard for deciding if a denial of support and maintenance constitutes a manifest injustice involved considering “either” the respective degrees of fault during the marriage “or” the relative economic circumstances of the parties. In affirming the ruling of the trial court, the Court of Appeals held that the trial court erred, but also that it was a harmless error as it was supported by facts that satisfied the correct standard. The court determined that the proper standard for determining if a denial of spousal support would constitute a manifest injustice must consider “both” the comparative economic circumstances “and” the respective degrees of fault, i.e., the test was a conjunctive test rather than the disjunctive test used by the trial court. Nevertheless, the Court of Appeals affirmed the ruling under correct test. With respect to the relative degrees of fault, the Court of Appeals explained that adultery was not dispositive and that a reasonable factfinder could conclude that appellant’s severe and longstanding abusive conduct went beyond “mere incivility or petulance” and tipped the scales in appellee’s favor. Moreover, the Court of Appeals affirmed the trial court’s finding of “extreme disparities” in the relative economic situations of the parties. Consequently, the trial court erred in stating the standard for determining if a denial of spousal support would cause manifest injustice as requiring either economic disparities or fault instead of both factors, but the error was harmless as the factual findings addressed both factors under the appropriate standard.
Congdon v. Congdon