Pattillo v. Pattillo

CHARLES C. PATTILLO, JR. v. ALISON PATTILLO

Record No. 1334-17-2

COURT OF APPEALS OF VIRGINIA

MAY 29, 2018

UNPUBLISHED

Present: Judges Chafin, Decker and AtLee

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY

Ricardo Rigual, Judge

Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellant.

Alan C. Bowden (Michael E. Kinney; Bowden Cooch & Meyer PLLC; Turner & Kinney, A Professional Corporation, on brief), for appellee.

Charles Pattillo, Jr. ("husband"¹) appeals a decision of the Circuit Court of Spotsylvania County ("the circuit court") in favor of Alison Pattillo ("wife"). Husband's seven assignments of error² present essentially one question: Did the circuit court err when it awarded spousal support to wife? We find no such error, and affirm.

I. FACTS

As an appellate court, we "view the facts in the light most favorable to the party prevailing before the trial court." Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). We also draw "all reasonable inferences fairly deducible" from those facts. Bajgain v. Bajgain, 64 Va. App. 439, 443, 769 S.E.2d 267, 269 (2015) (quoting Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)). Here, wife prevailed in the circuit court.

A. Background

Married in 1997, husband and wife separated in 2015. In 2016, citing wife's adultery, husband filed for divorce. Prior to trial, the parties resolved all issues but two: the grounds upon which divorce would be granted, and whether wife would receive spousal support. Ultimately, the circuit court granted husband a divorce on the ground of wife's adultery, and awarded wife $3,000 per month in spousal support, indefinitely.

B. The Parties' Financial Positions and Lifestyle

The parties enjoyed a relatively high standard of living during the marriage. They lived in a home worth in excess of half a million dollars, in a lakeside community where they also kept a boat. They traveled, both together and separately. When the parties married, husband was in the Air Force. He retired in 2007, and has worked since then as a defense contractor, and later a civilian employee of the federal government. Husband has a college degree and three master's degrees; he earns nearly $260,000 per year.³ By contrast, wife (a native of Great Britain) has the equivalent of a high school diploma.

Wife spent the majority of the marriage as a stay-at-home mother to the parties' two children.⁴ The circuit court observed that "[a]fter the parties were married in 1997 and had children, the parties agreed that Wife would stay home to take care of the children and the home." As a result, the circuit court concluded, "Wife sacrificed having a job to support the children." She worked outside the home only sporadically, and at the time of the trial she was working retail earning $9.00 per hour. At trial, husband's vocational expert testified that wife's annual earning capacity was less than $25,000.

C. Adultery

At the start of the trial, wife conceded that she had committed pre-separation adultery. That adultery involved two different men, both of whom were neighbors and friends of the parties. The adultery spanned several years leading up to the parties' 2015 separation. In addition to exchanging sexual texts and photos with the two men, wife had sex with them in cars around the parties' neighborhood and in the parking lot of a local Home Depot.

D. Other Factors Contributing to the Breakdown of the Marriage

In its letter opinion, the circuit court declared that although "[t]here is no doubt that Wife's adulterous behavior led to the demise of the marriage" it was "clear to the [c]ourt that Husband's inattention to Wife and the amount of time he devoted to his career, which often took him away from home at least one week of every month, led to the gradual dissolution of the marriage before Wife committed adultery." In reaching this conclusion, the circuit court found that husband, who "wakes up at 3:15am to get ready for work and gets home between 5pm and 6pm," worked so much "that he paid little to no attention to Wife or the children once he got home from work." Although husband "would acknowledge the family when he got home," he"would be glued to his computer once he sat down until he went to sleep." The circuit court's opinion letter went on to summarize the disintegration of the marriage in this way:

Wife testified that the marriage was a loveless and lonely place as far back as the early 2000's. Husband was unemotional and both parties were non-confrontational which would result in the parties failing to communicate with each other. Both parties admitted that their lack of communication was a large component in the dissolution of the marriage.

Several witnesses who knew Wife and Husband over the years testified that Husband always tried to make Wife happy. However, Wife would complain about Husband's lack of socializing with her and their friends and his unwillingness to spend money. Wife approached Husband in 2011 about her unhappiness and Husband agreed to attend counseling. Husband maintains that he took many steps to improve the marriage including pastoral counseling, attending Christian-based therapy and church men's groups, and reading Christian-based books. Additionally, Husband claims he made [an] intentional effort to be more social, attend more social events and stay longer at social events. A year or so after Husband attended counseling, Husband asked Wife about the state of their marriage and Wife felt Husband had made no positive changes thus resulting in her continued unhappiness in the marriage.

Because Husband maintained strict control over their financial accounts, Wife was not privy to the family finances at any time during the marriage. Per Wife's testimony, Husband was very strict about how much money they could spend every month. Husband, without Wife's approval, would give the church $300 every week but only allotted Wife $100 a month for discretionary spending. Per Husband's testimony, Wife went on multiple trips with her girl friends during the marriage and witnesses testified that she never seemed to want for anything. Wife always had access to the parties' joint accounts and credit cards even after the parties separated.

Husband testified that his lack of communication skills, work schedule and exhaustion contributed to the demise of the marriage. And the [c]ourt does so find. Therefore, even though Wife committed adultery in the years immediately prior to the parties' separation, the [c]ourt finds that the marriage was irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties.

The circuit court then examined the facts in light of Code § 20-107.1 and the holding of Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993). The circuit court found "that Wife contributed almost all of the nonmonetary contributions to the family and Husband was the only contributor to the monetary well-being of the family."

Ultimately, the circuit court concluded as follows:

After consideration of the evidence and arguments presented, including the relative economic circumstances of the parties and their respective degrees of fault leading to the dissolution of this marriage, the [c]ourt finds that a denial of spousal support and maintenance to Wife would constitute a manifest injustice. Thus, in weighing the relative needs, earning capacities and abilities of the parties, their ages, the duration of the marriage, and the manner in which the parties were accustomed to living during the marriage, it is hereby adjudged, ordered and decreed that Husband shall pay to the Wife the sum of $3,000.00 [per month] . . . .

Husband appealed to this Court after the circuit court denied his motion to reconsider.

II. ANALYSIS

A. Standard of Review

"Under Code § 8.01-680, a factual determination cannot be reversed on appeal unless 'plainly wrong or without evidence to support it.'" Congdon v. Congdon, 40 Va. App. 255, 261, 578 S.E.2d 833, 836 (2003). "This standard applies to a 'trial court's decision to award spousal support to a party despite his or her adultery' as it does to any other domestic relations case," id. (quoting Rahbaran v. Rahbaran, 26 Va. App. 195, 212, 494 S.E.2d 135, 143 (1997)), because "[w]hether and how much spousal support will be awarded is a matter of discretion for the trial court," id. at 262, 578 S.E.2d at 836 (quoting Northcutt v. Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002)).

B. Award of Support to an Adulterous Spouse

Code § 20-107.1(B) states, in relevant part:

[N]o permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A (1) of [Code] § 20-91.⁵ However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

Thus a court may award support to an adulterous spouse if it finds, based upon clear and convincing evidence, that denial of support would be a manifest injustice, in light of the parties' "respective degrees of fault during the marriage" and the parties' "relative economic circumstances." Husband concedes that "consideration of the relative economic circumstances of the parties is not in issue in this case" and, thus, "that prong of the test would be met."

Husband alleges that the circuit court erred in finding that appellant was at fault at all for the breakdown in the marriage. He also asserts that the "gradual breakdown" of a marriage cannot constitute fault and that wife did not present corroboration of any fault on husband's part. For these reasons, husband argues, there was no manifest injustice...