COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Bumgardner 

ERIC L. BYROM 

 MEMORANDUM OPINION*

v. Record No. 2174-97-4 PER CURIAM 

 MARCH 10, 1998 

BETTY JEAN LAYNE-BYROM 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

John E. Kloch, Judge 

 (Bobby B. Stafford; Kathryn E. Coward; The 

Law Offices of Raby & Stafford, on brief), 

for appellant. 

 (Robert M. Alexander, on brief), for 

appellee. 

 Eric L. Byrom (husband) appeals the decision of the circuit 

court awarding Betty Jean Layne-Byrom (wife) a divorce on the 

basis of desertion. Husband contends that the trial court erred 

in (1) finding him guilty of deserting the marriage; (2) finding 

that he was not legally justified in leaving the marital home; 

and (3) granting wife spousal support. 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. 

Desertion

 Husband contends that the trial court erred when it found 

that the parties reconciled after a fight in May or June 1994 and 

 

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

designated for publication. 
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that he subsequently deserted the marriage. Wife was required to 

prove husband's desertion by a preponderance of the evidence. 

See Bacon v. Bacon, 3 Va. App. 484, 488-90, 351 S.E.2d 37, 40-41 

(1986). We find that the trial court's decision is supported by 

credible evidence. 

 Husband left the marital home following an incident in which 

wife slapped him as he talked on the telephone to another woman. 

 According to husband's testimony, wife took a loaded gun which 

the parties kept by the bedside, hid it, and would not tell him 

where it was located. While husband's testimony painted wife as 

the aggressor, he admitted that wife told her daughter to call 

the police and that the police took the weapons out of the house 

and told husband to leave. While husband testified that he was 

afraid that wife might harm him, he admitted that he returned to 

the marital home voluntarily after wife's daughter was killed in 

a car accident in October 1994. Husband denies that the parties 

reconciled at that point, but the evidence established that the 

parties stayed together in the marital home for four months, 

resumed sleeping together, and, at husband's suggestion, began 

marital counseling. Therefore, the evidence supports a finding 

of reconciliation. 

 After staying in the marital home for four months, husband 

elected to discontinue marital counseling and left the home, 

knowing that wife did not want him to go. The trial court was 

entitled to determine whether husband's testimony that he feared 
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for his safety at that time was credible. Sufficient evidence 

supported the trial court's finding that husband deserted the 

marriage. 

 Husband contends that the trial court applied an erroneous 

standard to his claim of justification for leaving the marital 

home by requiring him to prove that he took all reasonable steps 

to address his concerns before leaving. "[A] party may be 

justified in leaving a marital abode even if grounds of divorce 

do not exist and may do so without committing desertion." Kerr 

v. Kerr, 6 Va. App. 620, 624, 371 S.E.2d 30, 33 (1988). 

 [L]eaving the marital home is justified when 

a spouse's conduct creates conditions so 

intolerable that the other spouse cannot 

reasonably be expected to remain in the home. 

 This justification may exist even if the 

conduct of the leaving spouse "may have 

contributed in some measure to the marital 

difficulties" so long as the other spouse's 

conduct is disproportionate to any 

provocation. 

Id. (citations omitted). Husband bore the burden to prove that 

his departure was justified. See Brawand v. Brawand, 1 Va. App. 

305, 310, 338 S.E.2d 651, 653-54 (1986). 

 The trial court found no evidence that husband's action in 

leaving the marital home after the reconciliation was justified. 

 Husband admitted that there were weapons back in the home. He 

indicated that he felt wife was unstable because she was taking 

medication for depression and because sometimes he would awaken 

and find her looking at him. No evidence supports the conclusion 

that wife's conduct was so intolerable as to give husband no 
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alternative but to leave the marital home. Husband's purported 

justification for his departure is not supported by the evidence. 

 Assuming without deciding that the trial court erred by 

requiring husband to prove he took all reasonable steps to 

address his concerns, we find that error to be harmless in light 

of the lack of evidence that husband's departure was justified by 

intolerable conditions in the marriage. 

Spousal Support

 Husband contends that the trial court erred in awarding 

spousal support to wife because wife did not need additional 

financial support and because wife's misconduct significantly 

contributed to husband's desertion. We find no support for 

husband's contentions. 

 "The determination whether a spouse is entitled to support, 

and if so how much, is a matter within the discretion of the 

court and will not be disturbed on appeal unless it is clear that 

some injustice has been done." Dukelow v. Dukelow, 2 Va. App. 

21, 27, 341 S.E.2d 208, 211 (1986). 

 In awarding spousal support, the chancellor 

must consider the relative needs and 

abilities of the parties. He is guided by 

the nine factors that are set forth in Code 

§ 20-107.1. When the chancellor has given 

due consideration to these factors, his 

determination will not be disturbed on appeal 

except for a clear abuse of discretion. 

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 

(1986). 

 Husband contends that wife's independent earnings negate her 
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need for $300 in monthly spousal support. Husband did not 

challenge the reasonableness of wife's claimed expenses. The 

evidence established that wife's standard of living had 

diminished and that her expenses exceeded her income by 

approximately $500 a month. We find no abuse of discretion in 

the trial court's award of spousal support. 

 Husband also contends that the trial court erred in awarding 

wife any support because her misconduct significantly contributed 

to the dissolution of the marriage. Fault may be considered when 

a court decides whether to award spousal support. See Code 

§ 20-107.1. The trial court did not find wife at fault in the 

breakdown of the marriage. Therefore, we find no error in the 

trial court's decision to award her support. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.