COURT OF APPEALS OF VIRGINIA

Present: Judges Chaney, Raphael and Callins

Argued by videoconference

JENNIFER M. PAYNE

OPINION BY

v. Record No. 0065-22-2 JUDGE DOMINIQUE A. CALLINS

MAY 9, 2023

DAVID RAY PAYNE

FROM THE CIRCUIT COURT OF HANOVER COUNTY

Theodore J. Markow, Judge Designate

Theresa Rhinehart for appellant.

No brief or argument for appellee.

On December 16, 2021, the Hanover County Circuit Court entered a final decree of

divorce between Jennifer M. Payne (“wife”) and David Ray Payne (“husband”). On appeal, wife

contends that the trial court abused its discretion by (1) finding that she deserted the marriage, 

(2) denying her an immediate award of permanent spousal support, and (3) crediting husband for 

all mortgage and home equity line of credit (HELOC) payments he made from the date of 

separation to the date of the trial court’s letter opinion. We disagree and hold that the trial court 

did not err in its judgment.

BACKGROUND1

In March 2020, wife filed a complaint seeking a divorce a vinculo matrimonii from 

husband based on the parties’ separation for more than one year. Husband filed an answer and 

1

“When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App. 

255, 258 (2003)). Husband is the prevailing party in this case.

PUBLISHED
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counterclaim, contesting wife’s grounds for divorce and asserting that wife deserted the 

marriage. In her answer to husband’s counterclaim, wife denied the claim that she had 

abandoned the marriage. During the pendency of the proceedings, the trial court ordered

husband to pay to wife $1,000 per month as pendente lite spousal support.

In a pleading titled “Equitable Distribution and Spousal Support Factors,” wife listed 

certain marital assets and debts and asserted her monetary and non-monetary contributions to the 

marriage. Relying on Code § 20-107.1, wife’s pleading requested $1,000 per month in 

permanent spousal support. Among other things, wife explained her decision to leave husband:

As our children got older, it seemed we grew apart. We spent less 

and less time together. It seemed that we would never talk. Our 

separation took several months. I was seeing a psychiatrist for 

depression. I wanted to go to couple’s counseling. I told my 

husband that if he would not go, I was going to leave him. I 

brought him different counselors’ information, but he refused to 

go.

At the equitable distribution trial, both parties testified and presented evidence. Wife

testified that she and husband wed while husband was enrolled at Old Dominion University. 

During that period, wife worked at a bank. The parties used husband’s student loan proceeds to pay 

rent, while wife’s earnings were used to pay family bills and entertainment costs. After husband

graduated from college, the parties moved to Richmond. Following the birth of their first child, 

wife became a stay-at-home mother and husband worked outside the home. When the parties’ 

children entered preschool, wife taught at the preschool, securing free daycare tuition for the 

children. One year after the parties’ youngest child began primary school, wife became a substitute 

teacher and then a full-time employee of Henrico County Public Schools. At the time of trial, wife 

was an office assistant and earned approximately $35,700 annually.

During the marriage, wife’s earnings went into a joint account shared with husband, and the 

parties used the funds for family purposes. At the time of the hearing, husband earned just over
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$132,000 per year and had received an annual bonus in 2020 totaling approximately $18,000. Wife

testified that the parties enjoyed a comfortable standard of living during the marriage. Husband

disagreed, testifying that the parties lived paycheck to paycheck, refinanced the HELOC on the 

marital home, and regularly consolidated credit card debt.

Toward the end of 2018, wife began sleeping in a spare bedroom. During this time, wife

also struggled with anxiety and depression upon the children moving out of the marital home. Wife, 

who was accustomed to having a home “full of kids,” was left “alone a lot at the house.” She 

suffered panic attacks. She testified that her “relationship with [husband] [got] worse” and 

acknowledged using alcohol to soothe her anxiety and depression. Wife also testified that her trust 

in husband eroded after discovering that there had been “females” at a bachelor party husband 

attended.

In early January 2019, wife left the marital home to move in with her parents. She told 

husband that she no longer felt comfortable in the marital home and “just needed to leave.” A short 

time later,

2 wife returned to the marital home and resumed living in the spare bedroom, as she had 

done before she moved out. In the same month, wife expressed a desire to attend couples 

counseling with husband. She told husband that if “they didn’t get things settled by then,” she 

would move out. At trial, wife acknowledged that she considered her proposal an “ultimatum” to 

which husband “just didn’t respond.”

On April 1, 2019, husband helped wife move out of the marital home into an apartment of 

her own. Wife eventually moved out of the apartment, as she could no longer afford it, and back in 

with her parents, where she remained through the time of the equitable distribution trial. According 

2 At trial, husband testified that when wife first left the marital home, she was gone for 

“several weeks.” Wife testified that she moved into her parents’ home for “two or three days.”
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to husband’s testimony, he neither told nor forced wife to leave the marital home, nor did he request 

a divorce.

At trial, wife introduced into evidence her income and expense worksheet but acknowledged

that she had not incurred many of the expenses listed. Wife testified that the statement reflected 

projected, rather than her current, expenses, including an apartment that she could not then afford. 

Wife testified that she “sometimes” paid $400 in monthly rent to her parents, but that she 

occasionally could not pay due to medical bills. Wife further testified that after husband began 

paying temporary spousal support, she made regular rent payments to her parents. Wife’s grocery 

expense was $200 per month, not $400 per month as reflected on her income and expense 

worksheet. She also included several other items on the worksheet that did not match her current 

spending patterns and expenses. Wife argued that she needed spousal support because her income 

was far lower than husband’s, that the parties had a long-term marriage, and that husband was able 

to continue doing “fun things” that were part of their married lifestyle that she could no longer 

afford.

Husband testified that his earnings were insufficient to pay wife any amount of spousal 

support and that he borrowed money to pay part of the temporary spousal support amount. After 

wife moved out of the marital home, husband became solely responsible for the mortgage and 

HELOC payments, as well as other marital debt. Husband argued that he could not continue paying 

spousal support because of the parties’ marital debts. He testified that he was also responsible for 

their adult children’s student loans if the children defaulted. While acknowledging that he had

played golf, gone hunting, and travelled since the separation, husband stated that the vacations were

paid for with his annual bonus.

The parties stipulated that since the separation, husband had paid the mortgage and HELOC

principal down by $14,321.86. At trial, wife argued that the trial court should limit husband’s
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separate credit for the mortgage paydown to $7,000 because the parties benefitted equally from his 

payments during their separation period. Husband argued that the $14,321.86 represented only the 

mortgage and HELOC principal and he had actually paid approximately $40,000, including interest. 

Husband sought credit for the full principal amount that he paid on the loans during the separation 

period. He also argued that because wife abandoned the marriage, she was not entitled to spousal 

support and further, he could not afford to pay any amount of support.

After considering the evidence and argument, the trial court took the matter under 

advisement and subsequently issued a letter opinion. The trial court granted husband a divorce on 

the grounds that wife willfully deserted the marriage, finding that “[n]either Wife nor Husband 

testified as to Wife’s reason for leaving the marriage” and that “Husband testified that he never 

wanted Wife to leave.” The trial court considered the factors enumerated in Code § 20-107.1(E), 

including the fault grounds for divorce, which it considered “heavily.” The trial court found that 

wife did not demonstrate a present need for spousal support, discrediting wife’s income and 

expense worksheet because she testified that many of the items “were not reflective of her 

current cost of living” and did “not accurately reflect her current needs.” However, the trial court 

granted wife a reservation of spousal support in the future. After reviewing the factors enumerated 

in Code § 20-107.3(E), including wife’s desertion, the trial court determined that husband was 

“entitled to a credit in the amount he has paid toward the [m]ortgage and H[ELOC] from the date of 

separation to the date of this opinion.” The trial court ordered that husband’s separate credit be paid 

from wife’s equitable share of the marital home proceeds.

The trial court also observed that “a large amount of debt” had been acquired during the

marriage. Given “the large disparity in income” between wife and husband, its decision not to 

award spousal support, and the financial resources available to husband, the trial court ordered 

husband to continue to make the debt payments.
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Wife filed a motion for reconsideration, arguing that the trial court abused its discretion in 

finding that wife deserted the marriage and granting husband a divorce on that ground. Wife

contended that her departure did not constitute “abandonment, [but] was for her to get better 

mentally.” Wife also argued that the trial court erred in failing to award her spousal support and in 

giving husband credit for the entire principal amount he paid toward the mortgage and HELOC. 

After hearing the parties’ arguments, the trial court denied wife’s motion and entered the final 

divorce decree. The decree stated that husband’s credit for the entire amount he paid toward the 

mortgage and HELOC should be deducted “prior to the distribution of the equity in the marital 

residence.” Wife appeals.

ANALYSIS

I. The trial court did not err in finding that wife deserted the marriage.

Wife argues that the trial court abused its discretion in finding that she willfully deserted the 

marriage and claims that the evidence, instead, supported a decree of divorce based on one-year 

separation grounds. She asserts that she did not desert the marriage but had to leave the marital 

home to protect her mental health.

“[W]here dual or multiple grounds for divorce exist, the trial [court] can use [its] sound 

discretion to select the grounds upon which [it] will grant the divorce.” Williams v. Williams, 14 

Va. App. 217, 220 (1992) (quoting Lassen v. Lassen, 8 Va. App. 502, 505 (1989)). That is, there is 

no mandate for a trial court “to give precedence to one proven ground of divorce over another.” Id.

(quoting Robertson v. Robertson, 215 Va. 425, 426 (1975). “A trial [judge’s] determination of 

matters [that lie] within [the trial judge’s] discretion is reversible on appeal only for an abuse of that 

discretion.” Hughes v. Hughes, 33 Va. App. 141, 146 (2000) (alterations in original) (quoting 

Farley v. Farley, 9 Va. App. 326, 328 (1990)). “Furthermore, a trial judge’s factual finding will 

‘not be set aside unless plainly wrong or without evidence to support it.’” Id. (quoting Farley, 9 
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Va. App. at 328). However, this Court reviews de novo all issues of law, including those involving 

“examination of the proper interpretation and application of [Code § 20-91(A)(6)].” Dixon v. 

Dixon, 71 Va. App. 709, 718 (2020).

a. Wife broke off marital cohabitation with the intent to end the marriage.

Code § 20-91(A)(6) provides that “[w]here either party has . . . willfully deserted or 

abandoned the other, [a] divorce may be decreed to the innocent party after a period of one year 

from the date of such act.”3 Notwithstanding Code § 20-91(A)(6)’s use of the disjunctive “or” to 

distinguish “desertion” and “abandonment,” our Supreme Court has found that “[i]n the domestic 

relations context, ‘abandonment’ is generally used synonymously with ‘desertion.’” Purce v. 

Patterson, 275 Va. 190, 195 (2008). Desertion or abandonment is defined “as ‘a breach of 

matrimonial duty—an actual breaking off of the matrimonial cohabitation coupled with an intent to 

desert in the mind of the deserting party,’” id. (quoting Petachenko v. Petachenko, 232 Va. 296, 

298-99 (1986)), and is usually effected when a party physically leaves the marital home and does 

not return. We have held, however, that a spouse may abandon their marital “duty” even where the 

deserting spouse has not left the marital home. Jamison v. Jamison, 3 Va. App. 644, 647-48 (1987)

(holding that evidence of “the willful withdrawal of sexual privileges without just cause or excuse 

and the willful breach and neglect of other marital duties” is sufficient to support grounds for 

willful desertion where the parties continue to live together in the marital home). Although there 

exists no single, monolithic matrimonial duty, the practical obligations that accompany marital life 

are manifold. Accordingly, “[d]omestic relations cases have considered ‘matrimonial duty’ to 

include cooking, cleaning, support, and contributing to the well-being of the family.” Purce, 275 

3 Although Code §§ 20-91, 20-107.1, and 20-107.3 were revised following the initiation of 

these divorce proceedings, none of the revisions are relevant to the instant case. All subsequent 

references to Code §§ 20-91, 20-107.1, and 20-107.3 refer to the versions of the statutes in effect 

when wife began divorce proceedings in March 2020.
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Va. at 195. Historically, the duty has also encompassed sexual intimacy. See Jamison, 3 Va. App. 

at 647-48. Thus, desertion or abandonment entails the “termination of the normal indicia of a 

marital relationship” coupled with the intent to not resume the marital relationship. Purce, 275 Va. 

at 195. Moreover, this willful breaking off occurs “without the consent and against the will of the 

other spouse.” Barnes v. Barnes, 16 Va. App. 98, 101 (1993).

Here, the record supports dual grounds for divorce. With their relationship under strain, 

husband and wife began to sleep in separate bedrooms before wife left the marital home in early 

January 2019. When wife returned to the marital home, she and husband continued living apart 

from each other. Although they shared a residence and continued contact, they no longer shared a 

joined life consistent with marriage. Indeed, wife averred that during this period she and husband

“lived separate and apart . . . without cohabitation, and with the intent to remain separate and apart 

permanently.” Wife admitted that she conditioned her remaining in the marital home on husband’s 

participation in marital counseling. When husband did not respond to her demand, wife left the

marital home and moved into an apartment. In her motion for reconsideration, wife acknowledged

that she left the marital home as a means of self-care, “to get better mentally.” Husband testified 

that he did not force wife to leave the marital home, did not tell wife to leave the marital home, and 

did not tell wife that he wanted a divorce. According to husband, when wife left the marital home 

the first time, she told him that “[s]he did not want to be there.” Even as her physical residence 

varied, wife maintained marital separation from husband from the time she initially left the marital 

home in January 2019 through the entry of the final decree of divorce in December 2021.

Based on this evidence, the trial court found that wife deserted the marriage, having 

broken off the matrimonial cohabitation with the intent to end the marriage. It is true that the 

same evidence supports a divorce based on the parties’ separation of one year. See Code 

§ 20-91(A)(9). Yet, “because multiple grounds existed . . . the [trial] court was free to choose 
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between those grounds in granting the divorce, and did not abuse its discretion by granting the 

divorce on the grounds of” desertion. Fadness v. Fadness, 52 Va. App. 833, 840 (2008).

Wife asserts that there “was no corroboration of th[e] finding” that wife deserted 

husband. For support, she points to the trial court’s finding that “[n]either Wife nor Husband 

testified as to Wife’s reason for leaving the marriage.” Yet, the record is not silent on the issue 

of wife’s reason for leaving the marriage. Wife physically left the marital home after husband 

did not respond to her request for marriage counseling. The evidence establishes that she took 

additional actions to terminate or discontinue all indicia of the marital relationship: wife chose to 

live in a spare bedroom, in her parents’ home, and in a separate apartment to be separate from 

husband; she did not hold herself out as married; and she stopped contributing to marital debts 

and obligations. Husband’s testimony reflects that he did not seek or compel marital separation. 

He testified that wife told him that she “just had to leave.” Combined, this evidence supports the 

trial court’s finding of desertion. See Ringgold v. Ringgold, 128 Va. 485, 499 (1920)

(recognizing that “protracted absence, with other circumstances, may establish the original 

intent” of desertion (quoting Bailey v. Bailey, 62 Va. 43, 47 (1871))).

b. Wife’s reason for leaving the marital home was not legally justifiable.

Wife challenges the trial court’s finding of desertion by asserting that her departure was 

justified by her mental health, arguing that “her leaving was not abandonment, it was for her to get 

better mentally.” Wife’s reason for leaving the marital home does not constitute legal justification 

for desertion under Virginia law.

“[A] party may be justified in leaving a marital [home] even if grounds of divorce do not 

exist and may do so without committing desertion.” Kerr v. Kerr, 6 Va. App. 620, 624 (1988). 

Although our jurisprudence supplies “no fixed formula for determining when justification exists, [it] 

recognize[s] the underlying premise that leaving the marital home is justified when a spouse’s 
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conduct creates conditions so intolerable that the other spouse cannot reasonably be expected to 

remain in the home.” Id. Thus, we have held that “[t]he burden of going forward with evidence of 

justification or showing that leaving was for a reason other than the intent to desert rests on the party 

who claims his or her leaving was without an intent to desert.” D’Auria v. D’Auria, 1 Va. App. 455, 

459 (1986) (citing Graham v. Graham, 210 Va. 608, 610 (1970)).

Virginia has consistently recognized desertion or abandonment as justified in circumstances 

that feature patterns of intimate partner violence and other forms of intolerable mistreatment and 

cruelty. See Pillow v. Pillow, 13 Va. App. 271, 276 (1991); Kerr, 6 Va. App. at 625-26; Brawand v. 

Brawand, 1 Va. App. 305, 310-11 (1985); Breschel v. Breschel, 221 Va. 208, 211-12 (1980); Capps 

v. Capps, 216 Va. 382, 385 (1975); Rowand v. Rowand, 215 Va. 344, 345-46 (1974); Graham, 210 

Va. at 616. Indeed, we have held that even 

a single act of physical cruelty will constitute [such justified] grounds

. . . if it is so severe and atrocious as to endanger life, if it indicates an 

intention to do serious bodily harm, if it causes reasonable 

apprehension of serious danger in the future, or if the precedent or 

attendant circumstances show that the acts are likely to be repeated.

Davis v. Davis, 8 Va. App. 12, 15 (1989).

Such a “single act” or patterns of intimate partner violence or intolerable mistreatment or 

cruelty are not present here. Sprott v. Sprott, 233 Va. 238 (1987), better resembles the case before 

us. There, our Supreme Court traced the gradual deterioration of the parties’ marital relationship, 

noting how, over time, wife “began to build what she described as a ‘psychological wall’ between 

herself and [husband]” and “[a]fter each perceived affront, [wife] added another brick to the wall.” 

Id. at 241. When wife eventually left the marriage, the Court declined to “hold[] that one spouse is 

legally justified in leaving the other merely because there has been a gradual breakdown in the 

marital relationship.” Id. at 242. Similarly, we held in D’Auria that, although “wife’s physician 

testified that her physical problems were the result of severe anxiety in contemplation of divorce,” 
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the evidence failed to “establish that husband’s behavior was the cause of wife’s emotional 

difficulties,” and, thus, that wife was legally justified in deserting her husband. 1 Va. App. at 460.

Here, wife testified to trust problems within the marriage, as well as to her recurring “mental 

problems.” But her assertions fail to establish unreasonably intolerable conditions or conduct—

unreasonable or otherwise—by husband that created or contributed to wife’s mental-health issues.

Conflicts concerning trust, mental health, and other intangible elements can, we 

acknowledge, work like a potent solvent to slowly dissolve the bonds of intimacy and unity in a 

marital relationship. Yet whether such elements are sufficient to dissolve the legal bonds of 

marriage is a different matter. And the relevant question before us concerns whether the 

non-departing spouse “‘caused conditions in the marital home to be intolerable’” and whether, as a

result, “the departing spouse ‘reasonably believe[d] that . . . her health [wa]s endangered by 

remaining in the household . . . .’” Gottlieb v. Gottlieb, 19 Va. App. 77, 82 (1994) (first quoting 

Kerr, 6 Va. App. at 623; and then quoting D’Auria, 1 Va. App. at 459). Even if wife’s mental 

health was impacted by staying in the marital home, the record lacks evidence to show that her 

health was endangered due to husband’s conduct.

While providing that “cruelty” or “reasonable apprehension of bodily hurt” may serve as 

justified grounds for divorce, Code § 20-91(A)(6) expresses no similar recognition of mental health 

issues, generally, as sufficiently deleterious to justify unilateral termination of a marital 

relationship.

4

 But whether and to what extent the law keeps pace with evolving social perspectives 

regarding marriage, divorce, and mental health is a determination reserved to the legislature. Even 

if addressing this intersection in the law “may be highly desirable from the standpoint of social 

4 Under current law, any spouse who breaks off marital cohabitation with the intent to 

leave their marriage, whose departure is neither legally justifiable nor consented to by the other 

spouse, may be found to have deserted or abandoned their marriage. This is true even, plausibly, 

where a marital relationship has deteriorated to the point of compelling separation and divorce.
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policy . . . it would represent a marked change from the settled rule in Virginia.” Lane Co., Inc. v. 

Saunders, 229 Va. 196, 199 (1985). Hence, our applicable legal standards do not justify wife’s 

legal fault in deserting the parties’ marriage.

II. The trial court did not err in its decision not to award wife spousal support.

Wife contends that the trial court abused its discretion in declining to award her spousal 

support. Wife’s argument reduces to three claims. First, wife claims that the trial court erred by 

“heavily consider[ing] the fault grounds” when determining whether to award her spousal 

support. Second, wife claims that the trial court’s decision not to award spousal support is 

inequitable and fails to properly account for wife’s contributions to the marriage, her sacrifices, 

and, in turn, her earning potential compared to that of husband. Third, wife contests the trial 

court’s finding that her “financial statement was not credible” and argues that a trial court should 

craft an award of spousal support reflecting the “marital standard of living.” We disagree with

wife’s contention and hold that because the trial court awarded wife a reservation of spousal 

support in accordance with Code § 20-107.1(D), her claims are without merit. 

Whether to award spousal support is a matter within the broad discretion of the trial 

court. See Northcutt v. Northcutt, 39 Va. App. 192, 196 (2006). Thus, the judgment of the trial 

court will be disturbed only when there has been “a clear abuse of discretion.” See Giraldi v. 

Giraldi, 64 Va. App. 676, 682 (2015) (quoting Fadness, 52 Va. App. at 845). The abuse of 

discretion standard recognizes that a court has a “range of choice” and that “its decision will not 

be disturbed as long as it stays within that range and is not influenced by any mistake of law.” 

Galiotos v. Galiotos, 300 Va. 1, 10 (2021) (quoting Landrum v. Chippenham & Johnston-Willis 

Hosps., Inc., 282 Va. 346, 352 (2011)). In other words, “[w]e will reverse the trial court only 

when its decision is plainly wrong or without evidence to support it.” Gamble v. Gamble, 14 
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Va. App. 558, 574 (1992). However, “[w]e review the trial court’s statutory interpretations and 

legal conclusions de novo.” Chaney v. Karabaic-Chaney, 71 Va. App. 431, 434 (2020).

a. The trial court properly weighed wife’s fault.

We begin by recognizing that “[t]he courts of this Commonwealth are empowered to assess 

spousal support awards, not to penalize or reward either party to the marriage contract, but rather to 

do equity between the two and to protect society’s interests in the incidents of the marital 

relationship.” Jacobs v. Jacobs, 219 Va. 993, 995 (1979). To that end, the scope and breadth of the 

trial court’s authority to make an initial award of spousal support is contained within Code 

§ 20-107.1. A trial court may, in its discretion, award a party spousal support to be paid “in 

periodic payments for a defined duration, or in periodic payments for an undefined duration, or 

in a lump sum award, or in any combination thereof.” Code § 20-107.1(C). Nonetheless, “in 

lieu of an award pursuant to subsection C,” a trial court may also exercise its discretion to 

“reserve the right of a party to receive support in the future.” Code § 20-107.1(D). In other 

words, a court-ordered reservation of the right to receive spousal support pursuant to Code 

§ 20-107.1(D) is a “decree concerning maintenance and support” of a spouse. When a trial court 

grants a reservation of spousal support it is awarding the right to seek periodic or lump sum 

support and maintenance at a later date. See Wyatt v. Wyatt, 70 Va. App. 716, 720 (2019) 

(“When a court does not award [a] spousal support [sum], it may ‘reserve the right of a party to 

receive [spousal] support in the future.’”). We have previously held that a trial court is mandated 

to grant this reservation when a party requests it. See id.; Bacon v. Bacon, 3 Va. App. 484, 491 

(1986) (holding that “it is reversible error for the trial court, upon request of either party, to fail 

to make a reservation in the decree of the right to receive spousal support”). But absent such 

request, the award of a reservation is entirely within the discretion of the trial court. Thus, the 
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trial court here did not deny wife spousal support but rather awarded her the right to seek support 

at another, future time.

An order for reservation of spousal support, like an order granting or denying support 

under subsection C, must “be accompanied by written findings and conclusions of the court 

identifying the factors in [Code § 20-107.1] subsection E which support the court’s order.” Code 

§ 20-107.1(F). The primary considerations of a trial court in determining whether to award 

spousal support—including a reservation of spousal support—are “the circumstances and factors 

which contributed to the dissolution of the marriage, specifically including adultery and any 

other ground for divorce [including desertion and cruelty].” Wyatt, 70 Va. App. at 719 

(alteration in original) (emphases added) (quoting Code § 20-107.1(E)).

Wife argues that the trial court “heavily” considered her fault when determining whether 

to award her a specific spousal support amount. Although a trial court is not required “to 

quantify or elaborate exactly what weight or consideration it has given to each of the statutory 

factors,” Pilati v. Pilati, 59 Va. App. 176, 183 (2011) (emphasis added) (quoting Duva v. Duva, 

55 Va. App. 286, 300 (2009)), given that it must, under subsection F, provide written findings 

and conclusions, the fact that the trial court here did expressly state the weight given to wife’s 

fault is not inconsistent with its statutory obligation, and thus not reversible error.5

5 We note, however, that Code § 20-107.1(F) requires that an order reserving a right of 

spousal support “state whether the retirement of either party was contemplated by the court and 

specifically considered by the court in making its award.” The trial court did not include such 

statement in the final decree of divorce. As neither husband nor wife assign error to that 

statutory noncompliance, we do not address it here. See Commonwealth ex rel. Breakiron v. 

Farmer, 32 Va. App. 430, 437 (2000) (“A matter not in dispute before the trial court will not be 

considered for the first time on appeal[.]” (quoting Connelly v. Commonwealth, 14 Va. App. 888, 

891 (1992))).
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b. The trial court properly considered all statutory factors.

Moreover, the trial court’s spousal support decision did not turn on the single fulcrum 

point of fault. Although the trial court expressed the “heavy weight” it attributed to wife’s 

desertion, it is clear from the record that fault was not the exclusive—or even the “heaviest”—

factor to which the trial court gave weight in its spousal support decision. The trial court also has 

discretion in determining “the ‘nature, amount and duration’ of the award.” Robinson v. Robinson, 

54 Va. App. 87, 91 (2009) (quoting Code § 20-107.1(E)). To make this determination, it must make 

and weigh findings regarding the statutory factors of Code § 20-107.1.

In addition to considering “the standard of living established during the marriage,” “the 

duration of the marriage,” and the “contributions, monetary and nonmonetary, of each party to the 

well-being of the family,” the trial court must also weigh, among other considerations, the 

obligations, needs, and financial resources of the parties. Code § 20-107.1(E). See also Wyatt, 70 

Va. App. at 719 (“In determining the appropriate amount of spousal support, the trial court must 

consider the needs of the requesting party and the other spouse’s ability to pay.” (quoting Alphin

v. Alphin, 15 Va. App. 395, 401 (1992))). But the “party seeking spousal support bears the burden 

of proving all facts necessary for an award including evidence of financial need[.]” Andrews v. 

Creacey, 56 Va. App. 606, 634 (2010) (quoting Robbins v. Robbins, 48 Va. App. 466, 484 (2006)).

Here, the record demonstrates that the trial court took care to balance the fault grounds for 

the divorce against wife’s established financial need. At trial, wife admitted that her financial 

statement included estimated future expenses rather than expenses establishing a baseline for her 

current need. The trial court found that wife provided an unreliable financial statement that failed to 

track wife’s “current needs.” Based on wife’s testimony, the trial court’s conclusion that wife failed 

to meet her evidentiary burden was not plainly wrong. See Andrews, 56 Va. App. at 634.
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The trial court also took care to balance its spousal support decision against other 

considerations, including its decision to make husband solely responsible for the paying down of the 

marital debt. See Code § 20-107.1(E)(8) (“[T]he court shall consider . . . [t]he provisions made with 

regard to the marital property under § 20-107.3.”). The court found that wife and husband had 

“acquired a large amount of debt during the marriage.” In recognition of “the large disparity in 

income between the Parties [and] Husband’s ability to continue making payments,” the trial court 

assigned to husband the task of maintaining the debt and accordingly found that “Wife is not 

entitled to spousal support at this time.” Even so, the trial court awarded wife a reservation of 

spousal support, in recognition that she may, in the future, demonstrate a need for support. The trial 

court expressly found that it would be “manifest[ly] unjust” to withhold such a reservation.6

Code § 20-107.1(E) tasks trial courts with a complex balancing act. See Robinson, 54 

Va. App. at 96 (recognizing that the 13 economic and noneconomic factors include factor “number 

thirteen . . . an open-ended directive that ‘the court shall consider . . . [s]uch other factors . . . as are 

necessary to consider the equities between the parties’” (emphasis added)). Although a trial court 

may struggle to craft judgments with perfect Solomonic precision, the trial court here balanced the 

equities by fashioning a judgment that accounted for the financial, fault, and other complexities that 

accompanied the parties’ divorce. On appeal, this Court does not question whether it would have 

rendered the same judgment. Rather, “only when reasonable jurists could not differ can we say an 

abuse of discretion has occurred.” Galiotos, 300 Va. at 11 (quoting Sauder v. Ferguson, 289 Va. 

449, 459 (2015)). That is, it is only when reasonable jurists would uniformly agree that an abuse of 

discretion has occurred.

6 Although the trial court found that “it would present a manifest injustice” to deny wife a 

reservation of spousal support, we do not consider this statement indicative of the trial court 

applying the “manifest injustice” exception to a bar to spousal support under Code 

§ 20-107.1(B), which is implicated only in cases where a party has established adultery grounds.
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Here, where it stayed within the fixed parameters of law, the trial court did not abuse its 

discretion in awarding to wife a reservation of spousal support in lieu of a sum.

III. Credit for Mortgage and HELOC Payments

Wife further challenges the judgment of the trial court in awarding husband credit for the 

full amount that he paid toward the mortgage and HELOC during the parties’ separation and 

divorce. Wife argues that although “Virginia law does not require . . . any specific credit be given 

for postseparation mortgage payments,” the trial court’s decision to make a dollar-for-dollar award 

is “unprecedented.” We find wife’s arguments unpersuasive and hold that the trial court did not 

abuse its discretion in awarding husband credit for his mortgage and HELOC payments.

“Code § 20-107.3, which governs awards of equitable distribution, ‘is intended to recognize 

a marriage as a partnership and to provide a means to divide equitably the wealth accumulated 

during and by that partnership based on the monetary and non-monetary contributions of each 

spouse.’” von Raab v. von Raab, 26 Va. App. 239, 245 (1997) (quoting Williams v. Williams, 4 

Va. App. 19, 24 (1987)). In rendering its equitable distribution judgment, a trial court must first 

determine property “ownership and value,” including legal title, and then classify the property as 

either marital, separate, or partially both. Code § 20-107.3(A). Next, “the court may (1) order the 

division or transfer, or both, of jointly owned marital property, (2) apportion and order the payment 

of marital debts, or (3) grant a monetary award to either party.” von Raab, 26 Va. App. at 246. 

“The court must determine the amount of its award of any of these remedies ‘upon the factors listed 

in [Code § 20-107.3(E)].’” Id. (alteration in original) (quoting Code § 20-107.3(C), (D)).

“[T]o the extent that the appeal requires an examination of the proper interpretation and 

application of Code § 20-107.3, it involves issues of law, which the Court reviews de novo on 

appeal.” Dixon, 71 Va. App. at 718. At the same time, “[i]n reviewing an equitable distribution 

award on appeal, we have recognized that the trial court’s job is a difficult one, and we rely heavily 
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on the discretion of the trial judge in weighing the many considerations and circumstances that are 

presented in each case.” Stark v. Dinarany, 73 Va. App. 733, 749-50 (2021) (quoting Wright v. 

Wright, 61 Va. App. 432, 449-50 (2013)). “Accordingly, ‘decisions concerning equitable 

distribution rest within the sound discretion of the trial court.’” Id. at 750 (quoting Wright, 61 

Va. App. at 450). “The [trial] court’s ‘discretion is limited only in that the [trial] court must 

consider all of the factors in Code § 20-107.3(E).’” Id. (quoting Fadness, 52 Va. App. at 842). 

These factors, like the other provisions in Code § 20-107.3, reflect the larger purpose of the statute, 

having been designed to affect a distribution of assets and liabilities that is equitable. But such a 

distribution need not be numerically equal to be equitable. Indeed, “[i]t is within the discretion of 

the court to make an equal division or to make a substantially disparate division of assets as the 

factors outlined in Code § 20-107.3(E) require.” Rinaldi v. Rinaldi, 53 Va. App. 61, 76 (2008) 

(quoting Matthews v. Matthews, 26 Va. App. 638, 645 (1998)). Although “the trial court must

consider each of the statutory factors, [it] may determine what weight to assign to each of them.” 

Robbins, 48 Va. App. at 481 (quoting Owens v. Owens, 41 Va. App. 844, 859 (2003)).

Subdivision 2 of Code § 20-107.3(E) provides that a court may consider “contributions, 

monetary and nonmonetary, of each party in the acquisition and care and maintenance” of marital 

property. Code § 20-107.3(E)(2). We have held that “Code § 20-107.3 does not mandate that the 

trial court award a corresponding dollar-for-dollar credit for such contributions.” von Raab, 26 

Va. App. at 250. Accepting arguendo wife’s contention that the trial court’s award was 

“unprecedented,” it does not follow that the trial court’s decision exceeded statutory bounds. The 

statute does not prescribe a set formula that trial courts must apply when dividing assets and 

liabilities. See Hart v. Hart, 27 Va. App. 46, 57 (1998) (“Fashioning an equitable distribution award 

lies within the sound discretion of the trial judge and that award will not be set aside unless it is 

plainly wrong or without evidence to support it.” (quoting Srinivasan v. Srinivasan, 10 Va. App. 
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728, 732 (1990))). Just as the plain text of Code § 20-107.3 does not mandate a dollar-for-dollar 

credit for post-separation payments, neither does it preclude a trial court, in the exercise of its 

discretion, from awarding the same.

Further, the trial court weighed the factor of “the dissolution of the marriage and the efforts 

made by husband to maintain this marital asset upon wife’s desertion.” See Code § 20-107.3(E)(5). 

After weighing the factors, the trial court crafted an award that it concluded approximated equity. 

In so doing, it rendered a judgment that was responsive to evidence in the record. Wife argues that 

the equitable distribution award was not equitable because it failed to consider that husband had 

exclusive use and possession of the marital home. But husband had exclusive use of the marital 

home by virtue of wife’s desertion, so the trial court did not err by assigning little weight to wife’s 

argument.

The trial court determined that “Husband is entitled to a credit in the amount he has paid 

toward the Mortgage and H[ELOC] from the date of separation to the date of this opinion.” On 

appeal, wife assumes the credit granted to husband by the trial court encompasses the total amount 

husband paid toward the mortgage and HELOC, including principal and interest. Wife’s 

assumption is inconsistent with the record before us. The parties stipulated that, at the time of trial, 

husband had paid down the mortgage and HELOC principal by $14,321.86 since the date of 

separation. Husband also presented evidence supporting these payments. This is the only evidence 

in the record regarding the “amount [husband] paid toward the mortgage and H[ELOC] from the 

date of separation to the date of this opinion,” which is the credit that the trial court gave husband. 

Hence, husband’s credit is confined to the $14,321.86 husband paid from the date of separation 

through the date of trial, plus any additional payments husband made between the date of trial 

through the date of the court’s letter opinion of July 14, 2021. Contrary to wife’s contention, the 

trial court neither awarded husband more than he requested nor more than that amount which was 
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supported by the evidence.7 Because the trial court did not abuse its discretion in awarding husband 

full credit for the payments introduced at trial, we find no error.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

7 At oral argument, wife argued that the trial court erred in its application of the credit to 

wife’s share of the total marital equity. Put differently, wife claimed that the trial court did not 

direct that husband’s separate credit be taken “off the top” of the total amount before dividing 

between the parties. Although wife did not make this argument on brief, we note that the 

argument mischaracterizes the court’s order. In the final decree of divorce, the trial court 

adjudged, ordered, and decreed that “prior to the distribution of the equity in the real property, 

Husband shall be entitled to a credit in the amount that he has paid towards the . . . mortgage and 

the HELOC mortgage from the date of separation (January 1, 2019) to the date of the Opinion 

letter (July 14, 2021).” (Emphasis added.)