Opinion
Record No. 0025-92-2
August 10, 1993
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE.
(Debra D. Corcoran, on brief, for appellant.) Appellant submitting on brief.
No brief or argument for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ellen Stine Harrison (wife) and Steven A. Harrison (husband) were married on December 6, 1980. On December 27, 1989, wife filed for divorce, charging husband with desertion and adultery. Following a hearing before the Commissioner in Chancery, the trial court approved the commissioner's recommendations and entered a final decree of divorce, from which wife appeals. She contends that the trial court abused its discretion in (1) determining the equitable distribution of the marital property, (2) denying a divorce based upon husband's fault, and (3) denying spousal support. Finding no error, we affirm.
Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding.
Wife first contends that the court abused its discretion in determining the equitable distribution of the property. Specifically, she contends that the court failed to consider her monetary and nonmonetary contributions to the acquisition of the marital property.
"In reviewing an equitable distribution award on appeal, we recognize that the trial court's job is a difficult one."Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987),appeal after remand, 10 Va. App. 356, 392 S.E.2d 504 (1990). Accordingly, "[t]he trial court's findings must be accorded great deference [and] [i]ts judgment will not be disturbed on appeal unless plainly wrong or without evidence to support it."Keyser v. Keyser, 7 Va. App. 405, 409, 374 S.E.2d 698, 701 (1988); see also Amburn v. Amburn, 13 Va. App. 661, 663, 414 S.E.2d 847, 849 (1992). "In fashioning an award, the trial court must consider each party's contributions to the acquisition of marital property." Amburn, 13 Va. App. at 664, 414 S.E.2d at 849.
The record reflects that the commissioner and the trial court considered the parties' contributions to the acquisition of the marital property. Upon noting that he had considered all of the factors set forth in Code § 20-107.3, the commissioner found that
[husband] made the vast majority of the financial contributions to both the well-being of the family, and the care and acquisition of the marital property; made a greater non-monetary contribution than [wife] to the upkeep of both homes of the parties during the marriage, as a result of extensive renovations; and, made at least an equal non-monetary contribution as [wife] toward the well-being of the family.
These specific findings of fact are supported by evidence in the record and, therefore, will not be disturbed on appeal. Moreover, wife received $10,200, representing the return of her initial separate contribution to the family's first home. We find that the trial court's determination was based upon a consideration of the statutory factors. Therefore, we cannot say that the trial court abused its discretion in determining the equitable distribution of the marital property.
Wife also contends that the trial court improperly denied her a divorce based upon husband's fault. Although wife concedes on brief that there is insufficient proof to establish that husband committed adultery, she maintains that husband is guilty of desertion.
Desertion must be proven by a preponderance of the evidence.Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 40-41 (1986). "'"Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the marital cohabitation, and secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete."'" Dexter v. Dexter, 7 Va. App. 36, 42, 371 S.E.2d 816, 819 (1988) (quoting Zinkhan v. Zinkhan, 2 Va. App. 200, 205, 342 S.E.2d 658, 660 (1986) (other citation omitted)). "The desire to separate, even to terminate the marriage, however, is not synonymous with an intent to 'desert' the marriage."Id. at 43, 371 S.E.2d at 819. "'A mere denial of sexual intercourse, where other marital duties are performed, does not constitute desertion.'" Id. at 42, 371 S.E.2d at 819 (quotingPetachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986)).
The trial court adopted the commissioner's finding that husband "did not intend to permanently desert the marital residence at the initial separation." We agree. Husband rented his apartment on a month-to-month basis and attended counseling with wife through the spring of 1990. Indeed, after initially leaving the marital home, husband approached wife about returning to the marital home. Husband also performed certain repairs at the marital residence following the separation. These facts belie an intent to permanently desert the marriage. Thus, wife failed to prove by a preponderance of the evidence that husband broke off marital relations with the intent to permanently desert the marriage.
Finally, wife contends that the trial court abused its discretion in denying her spousal support. We find no abuse of discretion based on the current circumstances of the parties. Moreover, our review of the court's final decree shows that the court did not deny permanent spousal support. Rather, in the final decree, the trial court merely denied wife spousal support at that time, but reserved and retained jurisdiction over the matter of spousal support. Therefore, the trial court did not prohibit wife from seeking an award of spousal support at some later time.
For these reasons, the judgment of the trial court is affirmed.
Affirmed.