Eugene Mary Ripplinger v. Peggy W. Ripplinger

• Court: Court of Appeals of Virginia
• Decided: September 15, 1998
• Docket: 0451982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

EUGENE MARY RIPPLINGER MEMORANDUM OPINION * v. Record No. 0451-98-2 PER CURIAM SEPTEMBER 15, 1998 PEGGY W. RIPPLINGER

FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY Thomas B. Hoover, Judge

(Dana L. Gay; Duty, Duty & Gay, on brief), for appellant. (Breckenridge Ingles; Martin, Ingles & Ingles, on brief), for appellee.

Eugene Mary Ripplinger (husband) appeals the decision of the

circuit court awarding spousal support to Peggy W. Ripplinger

(wife) and deciding other issues. Husband contends that the

trial court erred by (1) awarding wife a divorce on the basis of

a one-year separation rather than awarding him a divorce on the

basis of cruelty and desertion; (2) awarding wife spousal

support; (3) ordering husband to pay one-half of wife's

attorney's fees; and (4) ordering husband to pay two-thirds of

the fees for the commissioner and court reporter. Upon reviewing

the record and briefs of the parties, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the

decision of the trial court. See Rule 5A:27.

"The decree confirming the commissioner's report is presumed * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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). However, "[t]he ultimate decision in the case is left to

the chancellor, who must review the evidence according to correct

principles of law and arrive at his or her own conclusions."

Cochran v. Cochran, 14 Va. App. 827, 831, 419 S.E.2d 419, 421

(1992). Grounds for Divorce

A trial court is "not compelled 'to give precedence to one

proven ground of divorce over another.'" Williams v. Williams,

14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992) (citation

omitted). "It is well established that '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. (citation omitted). Husband contends that the

trial court erred by failing to award him a divorce on the

grounds of wife's cruelty and desertion. We find no error.

Both parties alleged fault-based grounds for divorce.

Husband also alleged, and wife admitted, that the parties had

lived separate and apart for more than one year. The

commissioner found that both parties were equally at fault

because each constructively deserted the marriage through their

cruelty to the other. The commissioner recommended granting wife

a divorce on the basis of the one-year separation. The trial

- 2 - court accepted the commissioner's recommendation. The trial

court's finding was supported by the evidence and husband has not

demonstrated that the trial court abused its discretion.

Spousal Support

Husband did not allege adultery by wife as a ground for

divorce. While the commissioner found that marital infidelities

by both parties during the marriage contributed to the

dissolution of the marriage, the commissioner made no finding

concerning adultery by wife. Therefore, there was no bar under

Code § 20-107.1 to an award of spousal support to wife.

Moreover, even if husband had alleged and proven adultery by wife

as a ground for divorce, the trial court was not barred from

awarding spousal support if it determined "from clear and

convincing evidence, that a denial of support and maintenance

would constitute a manifest injustice." Id.

The commissioner found that wife earned approximately

one-quarter what husband earned, that husband was the primary

wage-earner throughout the marriage, that both parties

contributed equally to the well-being of the marriage, and that

wife's education and employment skills were limited. Based upon

the evidence, the commissioner recommended an award to wife of

$500 in monthly spousal support.

The trial court also heard the parties testify concerning

their respective income and expenses. While the trial court did

not expressly state that denial of support would constitute a

- 3 - manifest injustice, it recited the statutory factors it

considered in determining the award of spousal support to wife

and expressly found that wife had the need for support and

husband the ability to pay support. Based upon the evidence

related to the statutory factors, we cannot say that the trial

court erred in affirming the commissioner's recommendation to

award $500 in monthly spousal support to wife.

Award of Fees Any award of attorney's fees and costs to a party rests with

the sound discretion of the trial court and will only be

disturbed where there has been an abuse of discretion. See

Rowand v. Rowand, 215 Va. 344, 346-47, 210 S.E.2d 149, 151

(1974). Wife earned approximately one-quarter what husband

earned. The trial court found that husband expended

approximately $20,000 to cover various expenses related to the

operation of his farm, which the trial court expressly found to

be a hobby, during the period of time in which husband alleged he

was unable to pay pendente lite spousal support or mortgage expenses. Based upon our examination of the record, we find no

abuse of discretion in the trial court's decision to order

husband to pay one-half of wife's attorney's fees and two-thirds

of the fees for the commissioner and court reporter.

Accordingly, the decision of the circuit court is summarily

affirmed.

- 4 -