In January, the Virginia Court of Appeals determined that evidence of adultery maybe submitted to the court when evaluating the issue of spousal support, even though adultery was not raised as a potential ground for divorce in the pleadings.
In Chaney v. Karabaic-Chaney, the wife filed for divorce after a five-year marriage. When the husband responded to the wife’s complaint, he did not include a counterclaim for divorce or allege the wife’s adultery as an affirmative defense. As a result, the wife sought to prohibit the husband from introducing anything about her adultery.
The trial court granted the wife’s motion and awarded her a divorce based on the parties’ one-year separation, and ordered the husband to pay spousal support for a period of at least five years, with permission for the wife to seek an extension. The husband appealed the spousal support decision, claiming the trial court did not allow him to present evidence regarding the wife’s affair as a reason for the court to limit spousal support.
The Court of Appeals reviewed the case for abuse of discretion, which is established if the trial court made an error of the law. The statute at issue, Virginia Code § 20-107.1(E), provides in relevant part that:
In determining the nature, amount and duration of [a spousal support award], the court shall consider . . . the circumstances and factors that contributed to the dissolution [of the marriage], specifically including any ground for divorce, as are necessary to consider the equities between the parties.
Pursuant to established case law, consideration of all factors set forth in Section 20-107.1(E) is mandatory, and failure to consider any factor is grounds for reversal.
The wife claimed the trial court properly excluded the evidence of her adultery when it considered spousal support, because the husband failed to raise it as a ground for divorce or as an affirmative defense. The wife relied on Virginia Code § 20-107.1(B), which allows the court to award spousal maintenance and support notwithstanding adultery if denial would constitute a manifest injustice considered in light of the respective degrees of fault during the marriage and the parties’ individual economic circumstances.
The Court of Appeals held that the husband’s failure to allege the wife’s adultery as a ground for divorce did not preclude the trial court from considering her adultery when determining spousal support under § 20-107.1(E), because her adultery was a “factor which contributed to the dissolution of the marriage.”
The court emphasized that it cannot interpret clear and unambiguous language to mean something the legislature did not express. The court noted the importance of construing the legislative intent, which in its opinion required consideration of adultery in determining spousal
support. Because the legislature specifically chose the word “including” in the statute, the court determined there is an implication that “there may be other admissible evidence that contributed to the dissolution of the marriage.”
Additionally, the court noted that the “factors that contributed to the dissolution” analysis is similar to “the respective degrees of fault during the marriage,” which the wife claimed supported her position. The court concluded that the latter language included “all behavior that
affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.”
The court recognized that in this case, as in past cases, it did not limit the “respective degrees of fault during the marriage” for spousal support to the legal grounds pled for divorce, citing its decision in Barnes v. Barnes, 16 Va. App. 98, 102 (1993). The court ultimately ruled that the trial court’s failure to consider a mandatory factor constituted an abuse of discretion and
a reversible error.