Opinion
Record No. 1329-92-3
March 30, 1993
FROM THE CIRCUIT COURT OF HIGHLAND COUNTY DUNCAN M. BYRD, JR., JUDGE
(Frankie C. Coyner, on brief), for appellant.
(Humes J. Franklin, Jr.; Franklin, Franklin, Denney, Heatwole Ward, on brief), for appellee.
Panel: Chief Judge Koontz, Judges Coleman and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon consideration of the record and finding appellant's contentions to be without merit, we summarily affirm in accordance with Rule 5A:27.
I.
A spouse is guilty of constructive desertion if the spouse's cruelty compels the unoffending spouse to leave the marital abode. Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986). Cruelty consists of conduct that tends to cause bodily harm and renders cohabitation unsafe for the unoffending spouse. DeMott v. DeMott, 198 Va. 22, 28, 92 S.E.2d 342, 346 (1956). Cruelty may consist of successive acts of abusive language and ill treatment, even if unattended by actual physical harm. Sollie v. Sollie, 202 Va. 855, 860, 120 S.E.2d 281, 285 (1961). Habitual drunkenness, together with other misconduct, may constitute cruelty. Hoffecker v. Hoffecker, 200 Va. 119, 125, 104 S.E.2d 771, 775-76 (1958). A single act of physical cruelty will constitute grounds for divorce when it is so severe as to endanger life if or when it indicates an intention to do serious bodily harm or causes reasonable apprehension of serious harm in the future. Davis v. Davis, 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989).
The trial court did not err by granting Frances Hammer a divorce on the basis of Dale Hammer's cruelty and constructive desertion. A trial court's judgment will not be set aside on the ground that it is contrary to the evidence unless it is plainly wrong or without evidence to support it. Code § 8.01-680; Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986).
Dale Hammer drank excessively nearly every day of his marriage and used abusive language toward his wife. During 1987, he physically assaulted his wife by attempting to choke her. On December 3, 1989, Dale Hammer physically assaulted Frances Hammer again, hitting and kicking her repeatedly so that she sustained large, painful contusions over her entire body. After the assault, she left the marriage because she justifiably feared that he would physically harm her again.
Dale Hammer's argument that Frances Hammer is estopped from asserting cruelty and constructive desertion because she tolerated his conduct for years is without merit. "[C]ruelty is cumulative, admitting of degrees and augmented by additions, so that it may be condoned and even forgiven for a time, and up to a certain point, without any bar to bringing it all forward when a continuance of it has rendered it no longer condonable."Sollie, 202 Va. at 860-61, 120 S.E.2d at 285. Furthermore, his contention that she deserted him is without merit. Dale Hammer was guilty of cruelty and constructive desertion; therefore, Frances Hammer necessarily was justified in leaving him. Thus, she was not guilty of desertion. See Kerr v. Kerr, 6 Va. App. 620, 623, 371 S.E.2d 30, 32 (1988).
II.
The trial judge did not err in the equitable distribution order by granting Dale Hammer $5,000 as his interest in the marital home, valued at approximately $76,000. Frances Hammer's father deeded by gift to them jointly the real estate where the marital residence is located. The trial judge classified the home as marital property. Whether to grant a monetary award and the amount of the award depends upon the rights and equities of the parties in the marital property and the factors specified in Code § 20-107.3(E). Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 (1989). There is no statutory presumption that marital property is to be equally divided. Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986). The trial court has broad discretion in the weight it gives to the various statutory factors in determining an award, and a reviewing court will not reverse the trial court's decision absent an abuse of discretion. Marion v. Marion, 11 Va. App. 659, 663-64, 401 S.E.2d 432, 435 (1991).
The fact that the trial court arrived at a monetary award by distributing the value of one marital asset differently than it did the value of another marital asset does not constitute an abuse of discretion. A trial court may arrive at a monetary award "by determining the respective rights and equities of the parties in the various items of marital property, considered individually . . . and fixing the . . . award based upon the aggregate value" as long as it considers the enumerated factors specified in Code § 20-107.3(E). McGinnis v. McGinnis, 1 Va. App. 272, 276, 338 S.E.2d 159, 161 (1985).
The trial court considered the statutory factors in determining the rights and equities of Dale Hammer in the property that his father-in-law had deeded to them jointly. The trial judge did not abuse his discretion in awarding Dale Hammer only $5,000 when the evidence showed that he had made no monetary contribution to the acquisition or improvement or maintenance of the real estate. The Hammers were deeded the property only two years before they separated. See Code § 20-107.3(E)(6) (court must consider how and when specific items of marital property were acquired). They occupied the house only four months before their separation. To improve and maintain the house, Frances Hammer contributed $12,000 of her separate property that she had inherited. Dale Hammer made no monetary or nonmonetary contributions to the home improvements. See Code § 20-107.3(E)(2) (court must consider the monetary and nonmonetary contributions of each party in acquisition, care and maintenance of the property). Finally, although Dale Hammer had been the primary wage earner, the trial judge found that Frances Hammer's contributions as mother and homemaker were equal to Dale Hammer's financial contributions to the family.
For the foregoing reasons, we affirm the trial court's decree of divorce and order of equitable distribution.
Affirmed.