Opinion
45106 Record No. 840537
April 24, 1987
Present: Carrico, C.J., Cochran, Poff, Compton, Stephenson, Russell, and Thomas, JJ.
Justice Cochran participated in the hearing and decision of this case prior to the effective date of his retirement on April 20, 1987.
The chancellor's denial of spousal support in a no-fault divorce is reversed and remanded because the record does not show that the chancellor considered and rejected the wife's request for such support as required by Code Sec. 20-107.
Domestic Relations — Divorce — No-Fault — Spousal Support — Practice and Procedure — Statutory Construction (Code Sec. 20-91(9))
A couple, married for ten years and parents of four children, both sought divorce, the wife on the ground of constructive desertion and the husband on the ground of desertion or, in the alternative, a no fault divorce as provided in Code Sec. 20-91(9). By final decree the chancellor dismissed the wife's bill, granted the husband's prayer for a no-fault divorce, awarded the wife custody of the children, and ordered the husband to pay child support and attorney's fees. In a letter opinion the chancellor held that the wife was not entitled to spousal support. That ruling was expressly reaffirmed in the final decree. The wife appeals, contending that the court erred in failing to consider the provisions of Code Sec. 20-107.
1. This Court has remanded no-fault divorce decrees where the chancellor failed to make any finding respecting the various factors required to be considered under Code Sec. 20-107 on the question of spousal support. Brooker v. Brooker, 218 Va. 12, 235 S.E.2d 309 (1977), and Bristow v. Bristow, 221 Va. 1, 267 S.E.2d 89 (1980), discussed.
2. There is a two-step process required in the determination of an application for spousal support. In order to conclude that no spousal support is necessary, the record must reflect that the chancellor gave careful consideration to all the statutory factors before making a decision on that matter.
3. Since the decree under review contains no findings underlying the chancellor's ruling that the wife is not entitled to spousal support, it is merely conclusory and it is impossible to tell whether it was based upon a finding that the wife was guilty of marital fault amounting to a ground for divorce under Code Sec. 20-91(9)(c), that the husband was unable to make support payments or that the wife did not need support.
4. When a divorce decree grounded in Code Sec. 20-91(9) denies an award of spousal support (whether expressly or by failure to address the issue), it will be reversed and the cause remanded unless the record on appeal reveals that the chancellor made a finding, supported by credible evidence, either (a) that the appellant was guilty of a violation of Code Sec. 20-91(1), (3), or (6) or Sec. 20-95, or (b) that, in consideration of the several factors enumerated in Code Sec. 20-107.1, the equities of the parties weighed against an award of spousal support.
Appeal from a judgment of the Circuit Court of Wise County. Hon. J. Robert Stump, judge presiding.
Reversed and remanded.
(John Farmer; Wolfe Farmer, on brief), for appellant. Appellant submitting on brief.
(Elizabeth S. Sturgill; Sturgill Sturgill, P.C., on brief), for appellee. Appellee submitting on brief.
This appeal challenges the chancellor's denial of spousal support in a no-fault divorce decree. The decree was entered on evidence taken by deposition.
Timothy and Pamela Collins were married in 1973. In 1982, Pamela filed a bill seeking a divorce on the ground of constructive desertion. Timothy answered and filed a cross-bill seeking a divorce on the ground of desertion or, in the alternative, a no-fault divorce as provided in Code Sec. 20-91(9). By final decree entered January 12, 1984, the chancellor dismissed Pamela's bill, granted Timothy's prayer for a no-fault divorce, awarded Pamela custody of the four children born of the marriage (the oldest of whom was 10 years of age), and ordered Timothy to pay Pamela $540 per month for child support and $350 for attorney's fees.
In a letter opinion, the chancellor held that "[t]he wife will not be entitled to spousal support", and that ruling was expressly reaffirmed in the final decree. On appeal, Pamela confines her complaint to that ruling. Specifically, she contends that "[t]he court below erred in failing to consider the provisions of [Code] Sec. 20-107", and she asks us to remand the cause for a spousal-support determination.
Our decision in this case is guided by three recent decisions of this Court. In Brooker v. Brooker, 218 Va. 12, 235 S.E.2d 309 (1977), the no-fault divorce decree was silent on the question of spousal support. We remanded the cause for a determination of that question because the chancellor failed to make "any finding respecting the various factors required to be considered under Code Sec. 20-107." Id. at 13, 235 S.E.2d at 310. In the no-fault divorce decree entered in Bristow v. Bristow, 221 Va. 1, 267 S.E.2d 89 (1980), the chancellor ruled that "the wife 'is not entitled to either further support . . . or any future support.' " Id. at 3, 267 S.E.2d at 90. The husband defended the ruling as an act of judicial discretion. We held that "the statute [Code Sec. 20-107] commands that, in order to exercise its discretion, '[t]he court shall . . . consider' the specific factors contained therein." Id. Because the chancellor felt it necessary to consider only one of the six statutory factors, we remanded the cause and instructed the chancellor to "hear such additional evidence as may be relevant to consideration of all the factors enumerated in Code Sec. 20-107". Id. at 4, 267 S.E.2d at 90-91.
In Thomasson v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66 (1983), we defined the two-step process required in the determination of an application for spousal support. Unlike the decisions in Brooker and Bristow, we affirmed a no-fault decree which made no provision for spousal support because the record before us, including a letter opinion, made it clear that "the chancellor gave careful consideration to all of the statutory factors." Id. at 399, 302 S.E.2d at 66.
The letter opinion and the decree now under review contain no findings underlying the chancellor's ruling that "[t]he wife will not be entitled to spousal support." Because the ruling is purely conclusory, we cannot tell whether it was based upon a finding that Pamela was guilty of marital fault amounting to a ground for divorce (see Code Sec. 20-91(9)(c)), or that Timothy was unable to make support payments, or that Pamela did not need support.
Reaffirming the rule distilled from the opinions we have cited, we hold that when a divorce decree, grounded in Code Sec. 20-91(9), denies an award of spousal support (whether expressly or by failure to address the issue), the decree will be reversed and the cause remanded unless the record on appeal reveals that the chancellor made a finding, supported by credible evidence, either (a) that the appellant was guilty of a violation of Code Sec. 20-91(1), (3), or (6) or Sec. 20-95, or (b) that, in consideration of the several factors enumerated in Code Sec. 20-107.1, the equities of the parties weighed against an award of spousal support.
Code Sec. 20-107.1 is the statutory descendant of Code Sec. 20-107 which was repealed by Acts 1982, c. 309.
We will reverse the decree insofar as it denies Pamela spousal support and remand the cause with instructions to conduct a new evidentiary hearing and to enter a decree in compliance with the rule we have defined.
Reversed and remanded.