COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

LUTHER C. HELBERT, JR. 

 MEMORANDUM OPINION*

v. Record No. 0794-98-3 PER CURIAM 

 AUGUST 25, 1998 

DYANNE WEBB HELBERT 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 (Carl E. McAfee; McAfee & Associates, on 

briefs), for appellant. 

 (Leonard D. Rogers, on brief), for appellee. 

 Luther C. Helbert, Jr. (husband) appeals the decision of the 

circuit court awarding spousal support to Dyanne Webb Helbert 

(wife). Husband contends that the trial court (1) erred by 

failing to rule on his claim that wife committed adultery, 

despite clear and convincing evidence supporting his claim; (2) 

erred by ruling that a manifest injustice would occur if wife did 

not receive spousal support; and (3) abused its discretion by 

awarding wife $1,400 in monthly spousal support while ordering 

husband to be solely liable on a $100,000 federal tax lien. 

Upon reviewing the record and briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the decision of the trial court. See Rule 5A:27. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 I. 

 Husband contends that the trial court erred by failing to 

rule on his claim that wife committed adultery. He alleges that 

there was clear and convincing evidence of wife's adultery. The 

trial court ruled in its letter opinion that husband failed to 

file an amended cross-bill alleging adultery as a ground for 

divorce.1

 In addition, the trial court found that husband did 

not establish wife's post-separation adultery by clear and 

convincing evidence, and, in any case, wife's actions after the 

parties separated "had nothing to do with the deterioration of 

the marriage and did not prevent possible reconciliation." Wife 

was awarded a divorce on the ground of husband's desertion 

without justification. 

 Our review of the record confirms the trial court's finding 

that husband failed to properly file his amended cross-bill 

pleading adultery as a ground for divorce. Husband filed an 

amended cross-bill without first seeking and obtaining leave from 

the trial court. See Rule 1:8. By order dated February 10, 

1995, he subsequently was permitted to file an amended 

cross-bill. That order stated that "[a] copy of said Amended 

Cross-Bill of Complaint is attached hereto." In fact, no copy 

 

 1Husband correctly notes that "[a] court of record speaks 

only through its written orders." Hill v. Hill, 227 Va. 569, 

578, 318 S.E.2d 292, 297 (1984). However, as the trial court 

explained in its letter opinion, husband failed to properly plead 

adultery. Because no claim was pending, we find no reversible 

error in the trial court's failure to deny husband's claim in its 

final decree. 
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was attached to that order, and no amended cross-bill was filed 

after leave was given. Thus, while the file contains the initial 

filing of what was purported to be an amended cross-bill, the 

record does not reflect that an amended cross-bill was filed 

pursuant to the court's order. The trial court did not abuse its 

discretion in refusing to consider husband's amended cross-bill 

when it was not filed in compliance with the order granting leave 

to amend the pleading. See generally Bibber v. McCreary, 194 Va. 

394, 397, 73 S.E.2d 382, 384 (1952). 

 Moreover, even if wife's post-separation adultery had been 

properly pleaded, we find no error in the trial court's 

determination that husband failed to present clear and convincing 

evidence to support his allegation. Wife's alleged paramour, 

Jason Todd Kennedy, was deposed. He admitted sleeping in the 

same bed with wife on occasion, and invoked his right not to 

incriminate himself when asked if he and wife had sexual 

intercourse. Wife admitted that Kennedy spent the night on 

occasion; she was not asked and did not testify that she had a 

sexual relationship with Kennedy. No other evidence was 

presented concerning wife's alleged adultery. 

 Husband contends that Kennedy's assertion of his Fifth 

Amendment right to avoid self-incrimination permitted the trial 

court to draw an adverse inference sufficient to establish wife's 

adultery. We disagree. It is true that Code § 20-88.59(G) 

allows the trier of fact to draw an adverse inference from the 
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refusal of a "party" to answer on the grounds of 

self-incrimination. The statute does not provide that the same 

adverse inference may be drawn when a non-party witness asserts 

the right to avoid self-incrimination. We will not read that 

language into the statute. 

 More significantly, however, is the fact that, even if such 

an adverse inference is drawn, we cannot say that the trial court 

erred by ruling that there was not clear and convincing evidence 

establishing wife's adultery. While repeated overnight stays may 

suggest a romantic relationship, that fact alone is not clear and 

convincing evidence of adultery. See Seemann v. Seemann, 233 Va. 

290, 293, 355 S.E.2d 884, 886 (1987). No evidence established 

that wife had sexual intercourse with Kennedy. "[A] complainant 

must prove and corroborate his or her grounds for divorce by 

independent evidence." Emrich v. Emrich, 9 Va. App. 288, 295-96, 

387 S.E.2d 274, 278 (1989). Any adverse inference drawn from 

Kennedy's refusal to testify would not be sufficient, standing 

alone, in the absence of some corroborating evidence. Thus, even 

if husband properly placed the alleged ground of adultery before 

the trial court, he failed to bear his burden of proving adultery 

by clear and convincing evidence. 

 II. 

 "Whether spousal support should be paid is largely a matter 

committed to the sound discretion of the trial court, subject to 

the provisions of Code § 20-107.1." McGuire v. McGuire, 10 Va. 
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App. 248, 251, 391 S.E.2d 344, 346 (1990). Under Code 

§ 20-107.1, even when a spouse establishes adultery as ground for 

divorce, a trial court may award spousal support to the 

adulterous spouse "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." "'[R]espective degrees of fault 

during the marriage' are not limited to legal grounds for 

divorce. We hold that 'fault during the marriage' encompasses 

all behavior that affected the marital relationship, including 

any acts or conditions which contributed to the marriage's 

failure, success, or well-being." Barnes v. Barnes, 16 Va. App. 

98, 102, 428 S.E.2d 294, 298 (1993). "The court must also weigh 

and consider the parties' relative economic positions in deciding 

whether it would be manifestly unjust to deny a spousal support 

award." Id.

 Here, notwithstanding its findings that husband failed to 

properly plead adultery as a ground for divorce and failed to 

prove adultery, the trial court made the additional finding that 

it would be manifestly unjust to fail to award wife spousal 

support. Wife was awarded a divorce on the ground of husband's 

desertion. The record demonstrates that husband told wife he did 

not love her and had never loved her. He refused any attempts at 

counseling to save the marriage. He testified in his deposition 
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that he left the marital home because "there was no use staying 

together" and he "couldn't see staying there and being miserable 

for the rest of my life and I left." 

 In addition, wife supported husband as he completed college 

and dental school and began his dental practice. At the time of 

the depositions, husband earned approximately $62,000 annually 

while wife earned $17,000. According to her exhibit, wife's 

monthly expenses exceeded her monthly income by over $2,000. 

Husband had additional monthly payments attributable to 

outstanding tax debts to the Internal Revenue Service, among 

others. 

 As demonstrated by the record, both the respective degrees 

of fault in the breakdown of the marriage and the parties' 

economic positions support the trial court's finding that it 

would be manifestly unjust to fail to award spousal support to 

wife. Therefore, we find no error. 

 III. 

 Husband did not appeal the trial court's equitable 

distribution decision holding him solely liable for the parties' 

joint tax indebtedness. See Code § 20-107.3(C). However, he 

contends that the trial court abused its discretion in awarding 

wife monthly spousal support of $1,400 in light of his 

responsibility for the tax debt. The determination whether a 

spouse is entitled to support and, if so, how much, is a matter 

within the discretion of the trial court and will not be 
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disturbed on appeal unless it is clear that some injustice has 

been done. See Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 

208, 211 (1986). 

 In fixing the amount of the spousal support 

award, a review of all of the factors 

contained in Code § 20-107.1 is mandatory, 

and the amount awarded must be fair and just 

under all of the circumstances of a 

particular case. When the record discloses 

that the trial court considered all of the 

statutory factors, the court's ruling will 

not be disturbed on appeal unless there has 

been a clear abuse of discretion. We will 

reverse the trial court only when its 

decision is plainly wrong or without evidence 

to support it. 

Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 

(1992) (citations omitted). 

 The trial court indicated that it considered the statutory 

factors before setting spousal support. The evidence 

demonstrated that husband was primarily responsible for the 

parties' outstanding tax debt because he failed to pay taxes for 

several years prior to the parties' separation. Wife was unaware 

that the taxes were not paid until approximately six months 

before husband left the marital home. There also was evidence 

that the parties took out loans allegedly to pay taxes, but the 

tax bills did not reflect any reduction, leading to the 

conclusion that husband failed to use those funds to pay taxes. 

At the time of the hearing, a portion of each party's salary was 

withheld to pay the outstanding tax lien. 

 Husband's current salary was several times greater than that 
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of wife. While husband contends that wife unreasonably sought to 

maintain the marital standard of living which the parties could 

never afford, on appeal he did not specify which of wife's 

current expenses were unreasonable. The parties were married for 

twenty-four years until husband deserted the marriage. Husband 

has failed to demonstrate that the trial court abused its 

discretion in ordering him to pay wife $1,400 in monthly spousal 

support. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

Affirmed.