Marshall W. Woodward, II v. Loretta Mae Woodward

• Court: Court of Appeals of Virginia
• Decided: April 28, 1998
• Docket: 2525972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Bumgardner

MARSHALL WILBER WOODWARD, II MEMORANDUM OPINION * v. Record No. 2525-97-2 PER CURIAM APRIL 28, 1998 LORETTA MAE WOODWARD

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY William H. Ledbetter, Jr., Judge

(George C. Rawlings, Jr., on brief), for appellant. (R. Scott Pugh, on brief), for appellee.

Marshall Wilber Woodward, II, (husband) appeals the decision

of the circuit court awarding $500 in monthly spousal support to

Loretta Mae Woodward (wife). Husband contends that the trial

court erred in awarding wife spousal support because wife was

guilty of misconduct through post-separation cohabitation with

another man. 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 determination whether a spouse is entitled to support,

and if so how much, is a matter within the discretion of the

court and will not be disturbed on appeal unless it is clear that

some injustice has been done." Dukelow v. Dukelow, 2 Va. App.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 21, 27, 341 S.E.2d 208, 211 (1986). 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 parties submitted evidence by way of deposition. The

trial court found that wife was disabled, and received $1,086 in

monthly disability retirement income. Husband earned $35,000 a

year. Both parties worked throughout the marriage. Wife

testified that she needed assistance to pay rent and utilities on

an apartment for herself and the parties' minor child. Husband sought and was granted a divorce on the ground of a

one-year separation. He did not allege adultery as a ground for

divorce. Wife failed to present sufficient evidence to

corroborate her alleged grounds of adultery and cruelty. The

trial court denied husband's motion to reconsider the award of

spousal support on the basis of wife's misconduct in living with

another man and in using drugs.

On appeal, husband has failed to provide citations to

evidence in the record supporting his allegations that wife was

guilty of misconduct. See Buchanan v. Buchanan, 14 Va. App. 53,

56, 415 S.E.2d 237, 239 (1992). Even if we assumed that husband

presented sufficient evidence to support his allegations, that

2 evidence would not preclude an award of spousal support to wife

under Code § 20-107.1, if other evidence established that support

was warranted. See generally Hollowell v. Hollowell, 6 Va. App.

417, 419, 369 S.E.2d 451, 452 (1988) ("Had the legislature

intended misconduct or illicit cohabitation to terminate spousal

support, it could have so provided as it did with death and

remarriage."). The trial court noted that it considered the

statutory factors and the evidence before awarding wife $500 in

monthly spousal support. Credible evidence established that

wife's income was less than half of husband's income and that

wife continued to need financial assistance to pay for housing

and other expenses. Therefore, husband has failed to establish

that the trial court abused its discretion by awarding spousal

support to wife. Accordingly, the decision of the circuit court is summarily

affirmed.