Can a Virginia court order a devoted and financially responsible husband to pay spousal support to his adulterous wife based merely on a gross disparity in income?

Can a Virginia court order a devoted and financially responsible husband to pay spousal support to his adulterous wife based merely on a gross disparity in income?

No, not in the case of Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535 (2016), where the Virginia Court of Appeals reversed the decision of the Circuit Court judge recognizing the manifest injustice exception to the bar on alimony to an adulterous spouse.

The parties were married for more than twenty-five years and husband was the primary breadwinner, earning as much as $850,000 per year.  The wife worked part time for less than a year.  The husband was a financially responsible and devoted spouse and father, who took his family on vacations and supported his spouse.  The husband treated his wife to dinners out and entertainment, and supported her interests in the arts and in a rock band. The husband provided daily care to his children and was involved in their extracurricular activities.

Wife admitted to adultery with a member of her rock band and with her personal trainer before separating and two post-separation adulterous relationships with others.

The parties entered into a property settlement agreement in which wife received assets worth $1.8 million dollars, including retirement funds.  Husband received the marital residence and agreed to pay for their children’s college expenses.  The parties did not address spousal support in their property settlement agreement, but left it for a decision by the trial court.

At trial, husband’s vocational rehabilitation expert testified to wife’s earning capacity, which would allow her to earn a sufficient income to support herself.  During closing argument, wife’s attorney admitted that there was no fault on husband’s part.  Nevertheless, the trial court judge recognized the manifest injustice exception to the Virginia bar on spousal support to an adulterous spouse due to the disparities in income of the parties.  The husband appealed the decision to the Virginia Court of Appeals.

The appellate court first recognized the standard of review.  The trial court’s fact findings would not be overturned unless plainly wrong or without evidence to support them.  Further, the appellate court recognized that undisputed or uncontradicted evidence that is not inherently incredible may not be arbitrarily disregarded by the trial court judge, citing Stroud v. Stroud, 49 Va. App. 359, 372, 641 Se.E.2d 142, 148 (2007), quoting Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992).

The court then recognized the bar to spousal support under Virginia Code §20-107.1(B) for adulterous conduct under Virginia Code § 20-91(A)(1), and the narrow exception to that bar for manifest injustice, which must be proved by clear and convincing evidence, Congdon v. Condon, 40 Va. App. 255, 578 S.E.2d 833 (2003), based on the respective degrees of fault and the relative economic circumstances of the parties.  The court stated that a “manifest injustice” had been found to be equivalent to a “miscarriage of justice”, citing Harris v. DiMattina, 250 Va. App. 306, 462 S.E.2d 338 (1995).

The appellate court distinguished the facts in Mundy from its decision upholding a manifest injustice in Congdon v. Condon, 40 Va. App. 255, 578 S.E.2d 833 (2003).  Both fault and relative economic circumstances must be considered together to find a manifest injustice.  In Congdon, the husband had abused the wife, his children and other family members, constituting unusual fault on husband’s part.  Further, the wife had been left with no assets and earned only $10 per hour.  In contrast, the wife in Mundy was left with assets in excess of a million dollars, had a mechanical engineering degree from Rice, and was capable of earning $27,500 to $33,000 per year.  Further, the wife in Mundy was 55 years old and would soon be able to access retirement funds.  The Virginia Court of Appeals ruled that the disparity in incomes found by the trial judge was not a sufficient manifest injustice and reversed the award of spousal support.

You should consult with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., to discuss how adultery might affect the outcome of your divorce case.

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