Jerry Rancis Bass, Sr. v. Sherry Yvonne Bass

• Court: Court of Appeals of Virginia
• Decided: April 20, 1999
• Docket: 1657981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

JERRY FRANCIS BASS, SR. MEMORANDUM OPINION * v. Record No. 1657-98-1 PER CURIAM APRIL 20, 1999 SHERRY YVONNE BASS

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Westbrook J. Parker, Judge

(John D. Eure, Jr., on brief), for appellant.

No brief for appellee.

Jerry Francis Bass, Sr., (husband) appeals the decision of

the circuit court granting Sherry Yvonne Bass (wife) a divorce

under Code § 20-91(9) on the ground that the parties lived

separate and apart for more than one year. Husband contends

that the trial court erred by (1) failing to award him a divorce

on the ground that wife deserted the marriage; and (2) awarding

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. See Rule 5A:27.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Grounds for Divorce

The parties submitted evidence by depositions taken before

a commissioner in chancery. "A decree based on testimony in

deposition form, while presumed to be correct, is not given the

same weight as one where the evidence is heard ore tenus by the

chancellor." Moore v. Moore, 212 Va. 153, 155, 183 S.E.2d 172,

174 (1971). However, "'the decree is presumed to be correct and

should not be disturbed for lack of proof if the controlling

factual conclusions reached are sustained by a fair

preponderance of the evidence.'" Nash v. Nash, 200 Va. 890,

898-99, 108 S.E.2d 350, 356 (1959) (citations omitted).

Based upon the depositions, the trial court ruled that both

parties established grounds for divorce based upon a one-year

separation, but that neither party proved fault-based grounds.

While husband did not plead adultery as a ground for divorce, he

attempted to establish that wife left the marriage because she

was involved in an extra-marital affair. The trial court did

not find that husband proved this allegation by a preponderance

of the evidence. We cannot say that the trial court erred in

finding the evidence insufficient to prove wife deserted the

marriage.

Even assuming arguendo that husband presented evidence

sufficient to prove desertion, a trial court is "not compelled

'to give precedence to one proven ground of divorce over

- 2 - 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). Therefore, we will not disturb the trial

court’s decision to award the parties a divorce on the grounds

of a one-year separation.

Spousal Support Award

In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the nine factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986).

The trial court indicated that it considered the statutory

factors before awarding wife $200 in monthly spousal support,

"giv[ing] special attention to paragraphs 2, 4 and 5." The

parties were married for twenty-seven years. The evidence

indicated that husband's income was more than twice that of wife

and that wife's monthly expenses exceeded her income by over

$100 each month. Husband's expenses included substantial

amounts used for his hobbies, including the upkeep of sixty dogs

- 3 - for a hunt club. We find no clear abuse of discretion in the

trial court’s award of spousal support to wife.

Accordingly, the decision of the circuit court is summarily

affirmed.

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