Craig A Knepp v. Linda E Niece

• Court: Court of Appeals of Virginia
• Decided: January 28, 2003
• Docket: 1801022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements

CRAIG A. KNEPP MEMORANDUM OPINION * v. Record No. 1801-02-2 PER CURIAM JANUARY 28, 2003 LINDA E. NIECE

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge

(John H. Goots; Chenault & Goots, PLC, on brief), for appellant.

(Jennifer E. Crossland; Parcell, Webb & Wallerstein, on brief), for appellee.

Craig A. Knepp (husband) appeals the decision of the circuit

court awarding Linda E. Niece (wife) a divorce. On appeal,

husband contends the trial court erred in awarding wife (1) a

divorce on the ground of desertion, (2) $25,000 for her interest

in a business, and (3) spousal support. Upon reviewing the record

and the parties' briefs, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

Background

The parties married in 1967 and separated on August 21,

1999. Wife testified she learned husband had had a sexual

relationship with his secretary. She also stated husband told

her to leave the marital home.

During their marriage, husband purchased an interest in the

company Brummell & Associates. He testified he borrowed money

from Christopher Goad to finance the purchase. However, the

corporate records list appellant as the owner of the stock.

Husband's expert witness valued husband's stock in the business

at $82,500. The court awarded wife $25,000 for her interest in

the asset.

Wife testified she worked part-time during the marriage

performing clerical and secretarial work. After the parties

separated, wife returned to full-time work. Husband is in good

health and has a graduate degree in business. Wife's income and

expense statement indicated a monthly need of $934. Husband's

monthly expenses listed over $700 to support his adult daughters

and also included the $704 he was ordered to pay as pendente

lite spousal support. Husband admitted he used his business

account to pay personal expenses. The court awarded wife $500

per month in spousal support.

- 2 - Analysis

I.

"'Desertion is a breach of matrimonial duty, and is

composed first, of the actual breaking off of the marital

cohabitation, and secondly, an intent to desert in the mind of

the offender. Both must combine to make the desertion

complete.'" Zinkhan v. Zinkhan, 2 Va. App. 200, 205, 342 S.E.2d

658, 660 (1986) (quoting Nash v. Nash, 200 Va. 890, 893, 108

S.E.2d 350, 352 (1959)). "The burden of proving desertion

should be by a preponderance of the evidence." Bacon v. Bacon,

3 Va. App. 484, 490, 351 S.E.2d 37, 40-41 (1987).

Wife testified appellant was having an affair and that he

ordered her to leave the house. "The law is settled that

desertion as a ground for divorce does not depend on which

spouse actually leaves the family home." Dexter v. Dexter, 7

Va. App. 36, 42, 371 S.E.2d 816, 819 (1988). The evidence

established that appellant intended to leave the marriage and

broke off the marital cohabitation by ordering wife to leave the

house.

II.

The court ordered husband to pay wife $25,000 for her

interest in the business "Brummell & Associates." "In reviewing

an equitable distribution award on appeal, we have recognized

that the trial court's job is a difficult one, and we rely

heavily on the discretion of the trial judge in weighing the

- 3 - many considerations and circumstances that are presented in each

case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,

870 (1990). "Unless the record shows that the trial judge has

abused his or her discretion by misapplying the statutory

factors, the trial judge's determination will not be reversed on

appeal." Moran v. Moran, 29 Va. App. 408, 417, 512 S.E.2d 834,

838 (1999). Husband unquestionably owned the stock at the time

the parties separated. The court properly classified the

property as marital and did not err by awarding a portion of its

value to wife.

III.

"Whether and how much spousal support will be awarded is a

matter of discretion for the trial court." Barker v. Barker, 27

Va. App. 519, 527, 500 S.E.2d 240, 244 (1998).

Appellant argues the trial court failed to consider the

necessary statutory factors.

The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court's findings must have some foundation based on the evidence presented. Therefore, we hold that in a determination involving spousal support, if the court's findings do not have evidentiary support in the record, then the court has abused its discretion.

- 4 - Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986). Evidence concerning the income and expenses of the

parties established a foundation supporting the court's award of

spousal support.

Accordingly, we summarily affirm the decision of the trial

Affirmed.

- 5 -