COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued at Richmond, Virginia 

JOHN RHODES CONGDON, JR. 

 OPINION BY 

v. Record No. 0522-02-2 JUDGE D. ARTHUR KELSEY 

 APRIL 8, 2003 

MARY EVELYN DAVIS CONGDON 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

 Lawrence D. Diehl, Judge Pro Tempore 

 Donald K. Butler (Mary Beth Joachim; Morano, 

Colan, Cook & Butler, on briefs), for 

appellant. 

 Terrence R. Batzli (Charles E. Powers; 

Barnes & Batzli, on brief), for appellee. 

 In this divorce case, John Rhodes Congdon claims the trial 

court erred by awarding his wife spousal support despite her 

admitted adultery during the marriage. The trial judge, the 

husband argues, misapplied the manifest injustice exception to 

Code § 20-107.1(B)'s statutory bar against awarding support to 

adulterers. In addition to defending her award of support, Mary 

Evelyn Davis Congdon claims that the trial court erred in its 

equitable distribution calculation of the marital share of the 

appreciation of her husband's separately owned stock in the family 

trucking business. 

 We agree with the husband that the trial judge misread our 

precedents on the manifest injustice exception, but we nonetheless 
- 2 - 

affirm because his factual findings support the result reached 

under a proper interpretation of the law. As to the equitable 

distribution calculation of stock appreciation, we disagree with 

the wife and find no reversible error in the trial court's method 

of classifying the increase in stock value. 

I. 

 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. Wright v. 

Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002); Donnell 

v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995). That 

principle requires us to "'discard the evidence'" of the appellant 

which conflicts, either directly or inferentially, with the 

evidence presented by the appellee at trial. Wactor v. 

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) 

(quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 

859, 866 (1998)). We view the facts of this case, therefore, 

through this evidentiary prism. 

 Mary Evelyn Davis (known as Lynn) and John Rhodes Congdon 

married in 1977. During their twenty-two year marriage, the 

couple had three children. John filed for divorce in 1999 

alleging adultery, and Lynn filed a cross-bill asserting cruelty 
- 3 - 

and constructive desertion. The parties agreed to the appointment 

of a judge pro tempore to decide the case.1

 In addition to receiving depositions, the trial judge heard 

testimony ore tenus from multiple witnesses over four days. Much 

of the testimony described the nature of the marriage and the 

circumstances that led to its dissolution. At the beginning of 

the trial, Lynn conceded that she was guilty of adultery and did 

not contest John's request for a final divorce on this ground. 

The evidence showed that she engaged in an extramarital affair for 

at least five years during the marriage. 

 Viewed in the light most favorable to Lynn, however, the 

evidence also portrayed John as a profane and verbally abusive 

man. John frequented "strip joints and topless bars" and told 

Lynn about, among other things, the "oil wrestlers" that performed 

at these places. He would indiscriminately engage in these 

conversations in the presence of his children and Lynn's family, 

at times even "boasting or bragging about those places." "It was 

not an infrequent topic of conversation." John went to these 

places, he explained to one witness, "because they have the best 

p----." John "frequently talked crudely about sexual type 

 

1

 Under Code § 17.1-110, a judge pro tempore is "vested with 

the same power and authority and shall be charged with the same 

duties as to the cause in and as to which he is appointed as 

though he were the regularly elected and qualified judge of such 

court." 
- 4 - 

things." He carried on with this practice "[p]retty much the same 

the whole 20 years." 

 John also directed his profanity toward his children. In one 

instance, John's son Michael had accidentally kicked his father's 

head while both were lying on a bed watching television. Though 

realizing it was simply an accident, John "started yelling . . . 

God damn you, Michael. Why in the f--- did you kick me in the 

face. . . . Why did you f---ing have to kick me in the face?" In 

response, Michael ran out of the house. On another occasion, John 

was having a "food fight" with his twelve-year-old daughter when 

John accidentally got hit in the eye. He "started screaming . . . 

God damn you. God damn, you hit me in the eye." His daughter 

"just sat there and started crying," not at all understanding her 

father's outburst. Other times John would come home from work 

angry and declare, in ear-shot of his children, that "one of the 

girls at the office" was a "bitch or a c---." His use of 

vulgarity, in the presence of his family and others, "was quite 

frequent." 

 Several witnesses who knew John and Lynn over the years 

testified that they had never once seen John show any affection or 

any kindness toward Lynn. Over the course of the marriage, John 

chronically complained (both to Lynn and others) about Lynn's 

weight, appearance, housekeeping, and spending habits. John 

referred to Lynn as "Witch." He was a "heavy drinker," sometimes 

starting as early as "10:00 in the morning." Because John 
- 5 - 

maintained strict control over the financial accounts, Lynn was 

not "privy to the family finances at any time during the 

marriage." John particularly disliked Lynn's family and 

threatened on one occasion to move her out of town if she did not 

"stop speaking with her parents." 

 Despite these problems, John and Lynn enjoyed considerable 

financial security. John has a college degree, a stable and 

long-term career in a family trucking business, an annual salary 

exceeding $250,000, and additional income from corporate dividends 

and family related gifts. John's interests in stocks, real 

estate, and tangible assets exceeded $6 million. In contrast, 

Lynn has not held a full time job since the early years of her 

marriage, choosing instead to stay at home to raise their three 

children. She has no college degree, giving her a future earning 

capacity far below her husband's. At the time of trial, Lynn was 

earning $10.00 an hour as a receptionist. 

 The trial court also heard evidence that John's stock in his 

family business increased in value over the course of the 

marriage. Conceding that John acquired the shares as a gift from 

his family and thus should be considered separate property, Lynn 

argued that under Code § 20-107.3(A)(3)(a) the appreciation 

portion of the stock's present value should be treated as marital 

property. In reply, John presented extensive testimony on the 

internal management of the business and the role of six other key 

employees in the company's success. 
- 6 - 

 After the close of the evidence, the trial court issued a 

comprehensive letter opinion detailing each aspect of the court's 

rulings on divorce grounds, equitable distribution, and spousal 

support. On the first issue on appeal, the adultery bar against 

spousal support, the court invoked the "manifest injustice" 

exception in Code § 20-107.1(B). After considering the additional 

factors in Code § 20-107.1(E), the court awarded support of $2,300 

per month to Lynn to continue until her death or remarriage. On 

the second issue on appeal, the classification (marital or 

separate property) of the stock appreciation, the court found that 

90% of the increase in value should be deemed separate property 

given the extensive efforts of other key employees and the extent 

of "passive growth" in the stock value. 

II. 

Under Code § 8.01-680, a factual determination cannot be 

reversed on appeal unless "plainly wrong or without evidence to 

support it." See Schweider v. Schweider, 243 Va. 245, 250, 415 

S.E.2d 135, 138 (1992); Torian v. Torian, 38 Va. App. 167, 181, 

562 S.E.2d 355, 362 (2002). 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. Rahbaran v. Rahbaran, 26 Va. App. 195, 212, 494 S.E.2d 

135, 143 (1997) (citing Williams v. Williams, 14 Va. App. 217, 

219, 415 S.E.2d 252, 253 (1992)). 
- 7 - 

"Whether and how much spousal support will be awarded is a 

matter of discretion for the trial court." Northcutt v. 

Northcutt, 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002) 

(quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 

244 (1998)). On appeal, a trial court's decision on this 

subject will not be reversed "unless there has been a clear 

abuse of discretion." Id. (quoting Moreno v. Moreno, 24 

Va. App. 190, 194-95, 480 S.E.2d 792, 794 (1997)); see also 

Gottlieb v. Gottlieb, 19 Va. App. 77, 84, 448 S.E.2d 666, 671 

(1994). 

An abuse of discretion can be found if the trial court uses 

"an improper legal standard in exercising its discretionary 

function," Thomas v. Commonwealth, 263 Va. 216, 233, 559 S.E.2d 

652, 661 (2002), because a trial court "'by definition abuses 

its discretion when it makes an error of law,'" Shooltz v. 

Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) 

(quoting Koon v. United States, 518 U.S. 81, 100 (1996)). See

also Mughrabi v. Commonwealth, 38 Va. App. 538, 545, 567 S.E.2d 

542, 545 (2002). An abuse of discretion also exists if the 

trial court fails to consider the statutory factors required to 

be part of the decisionmaking process, Rowe v. Rowe, 24 Va. App. 

123, 139, 480 S.E.2d 760, 767 (1997), or makes factual findings 

that are plainly wrong or without evidence to support them, 

Northcutt, 39 Va. App. at 196, 571 S.E.2d at 914. 
- 8 - 

III. 

A. 

 John challenges the trial court's award of spousal support to 

his wife. Code § 20-107.1(B) bars an award of support to any 

spouse found guilty of adultery, John argues, except in narrow 

circumstances not present in this case. John disagrees with the 

trial court's interpretation of Code § 20-107.1(B), as well as its 

factual findings in support of applying the statutory exception. 

We agree with John that the trial court restated the § 20-107.1(B) 

standard incorrectly, but conclude that the trial court's factual 

findings support its decision in any event. 

 With respect to spousal support, Code § 20-107.1(B) provides 

that "no 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 (1) of § 20-91," which 

includes adultery. This statute bar, however, is subject to a 

narrow exception: 

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. 

Code § 20-107.1(B). The language of this statute circumscribes 

the scope of the exception in three ways. 
- 9 - 

First, the evidence must rise to the level of "clear and 

convincing" proof. A more stringent standard than preponderance 

of the evidence, "clear and convincing" proof requires "that 

measure or degree of proof which will produce in the mind of the 

trier of facts a firm belief or conviction as to the allegations 

sought to be established." Lanning v. Va. Dept. of Transp., 37 

Va. App. 701, 707, 561 S.E.2d 33, 36 (2002) (citations omitted). 

"It is intermediate, being more than a mere preponderance," but 

less than the criminal "reasonable doubt" standard. Gifford v. 

Dennis, 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1 (1985) 

(citation omitted). 

Second, the exception applies only in cases of "manifest 

injustice." The expression, often found outside of domestic 

relations law, has been used synonymously with the phrase 

"miscarriage of justice." Harris v. DiMattina, 250 Va. 306, 

318, 462 S.E.2d 338, 343 (1995) (interpreting the duty imposed 

by Code § 8.01-1 on trial courts to prevent unjust results in 

the application of a new provision of law). The "manifest 

injustice" expression also serves as shorthand for the narrow 

exception to Rule 5A:18's contemporaneous objection requirement. 

M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 702, 568 

S.E.2d 391, 396 (2002). The legislature has put the expression 

to use limiting the ability of a criminal defendant to withdraw 

a guilty plea after judgment. See Code § 19.2-296 (after 
- 10 - 

judgment, a guilty plea may be withdrawn only "to correct 

manifest injustice"). 

Third, the statute limits the fact finder's discretion to 

two specific variables: (i) the relative degrees of fault and 

(ii) the economic disparities between the parties. The statute 

requires the decision to be "based upon" these factors. Code 

§ 20-107.1(B). This language implies a higher level of 

justification than a statutory command that merely requires the 

trial judge to consider this or that factor. 

In this case, the dispute focuses on whether the trial 

court must base its decision on both variables or may rest it 

exclusively on only one. John argued before the trial court 

that under Code § 20-107.1(B) a trial court "must consider and 

weigh both prongs of the test for manifest injustice." 

(emphasis in original). The trial court disagreed, concluding 

that under Calvin v. Calvin, 31 Va. App. 181, 186, 522 S.E.2d 

376, 378 (1999), "it can be argued that only a finding of a 

manifest injustice as to either prong is sufficient to overcome 

the bar to support." 

The trial judge erred in reading our precedent to permit a 

purely disjunctive test, one in which the manifest injustice 

conclusion could be based on either the relative degrees of 

fault or the economic disparities of the parties. "In order to 

find that denial of support will constitute a manifest 

injustice, the court must base that finding on the parties' 
- 11 - 

comparative economic circumstances and the respective degrees of 

fault." Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 

294, 298 (1993) (emphasis in original). We italicized the word 

"and" in Barnes precisely because the statute makes clear that 

the decision must be rooted in both factors.2

We disagree with the trial court's view that Calvin

effectively retooled Code § 20-107.1(B) into a disjunctive test. 

In Calvin, we noted only that the "respective degrees of fault" 

in that case weighed "heavily" in favor of the husband because 

of the wife's adultery and, thus, any manifest injustice 

resulting from a denial of spousal support "must derive from the 

relative economic circumstances of the parties." Calvin, 31 

Va. App. at 186, 522 S.E.2d at 378. We made that observation 

based upon the facts in the appellate record and the specific 

argument presented to us on appeal. The appellee in Calvin did 

not file a brief on appeal or participate in oral argument. Id.

at 182 n.1, 522 S.E.2d at 376 n.1. Calvin did not expressly 

mention, much less analyze, whether Code § 20-107.1(B) requires 

 

2

 In Barnes, 16 Va. App. at 103, 428 S.E.2d at 298, for 

example, we noted that the marriage disintegrated because of the 

"mutual inattention and fault of both parties." The wife's 

post-separation adultery occurred long after the marriage had 

been "irretrievably lost." Id. As a result, we held that the 

"trial judge did not disregard the parties' respective degrees 

of fault during the marriage and base her finding of manifest 

injustice solely upon the parties' disproportionate economic 

circumstances." Id. at 102, 428 S.E.2d at 298. 
- 12 - 

a conjunctive or a disjunctive test. To be sure, Calvin cited 

Barnes without noting any conflict between the two decisions. 

Under Virginia law, a decision of one panel "becomes a 

predicate for application of the doctrine of stare decisis" and 

cannot be overruled except by the Court of Appeals sitting en

banc or by the Virginia Supreme Court. Johnson v. Commonwealth, 

252 Va. 425, 430, 478 S.E.2d 539, 541 (1996). This principle 

applies not merely to the literal holding of the case, but also 

to its ratio decidendi —— the essential rationale in the case 

that determines the judgment. Absent a clear indication to the 

contrary, therefore, we must presume that the panel deciding 

Calvin did not intend to undermine Barnes. 

Despite the trial court's mistaken restatement of the legal 

standard, the court made alternative factual findings on both 

prongs of Code § 20-107.1(B). On the "respective degrees of 

fault" factor, the trial court correctly observed that in this 

context fault "encompasses all behavior that affected the 

marital relationship, including any acts or conditions which 

contributed to the marriage's failure, success, or well-being." 

See Barnes, 16 Va. App. at 102, 428 S.E.2d at 298. Using this 

definition, the trial court rejected the contention that Lynn's 

adultery rendered the balance of wrongdoing "completely 

one-sided." Though the trial court did not enumerate the 

various aspects of fault attributable to John, Code 

§ 20-107.1(B) does not require that this enumeration be done. 
- 13 - 

What § 20-107.1(B) does require, the trial judge did. He 

weighed the respective degrees of fault by considering the 

essential question of culpability for the marriage's demise. 

The ultimate issue remains, then, whether clear and 

convincing evidence of John's and Lynn's respective degrees of 

marital fault —— coupled with an examination of the economic 

disparities between them —— supports a finding of manifest 

injustice. This issue resolves itself under our appellate 

review standard. Under this standard, if "the record contains 

credible evidence in support of the findings made by that court, 

we may not retry the facts or substitute our view of the facts 

for those of the trial court." Calvin, 31 Va. App. at 183, 522 

S.E.2d at 377 (quoting Ferguson v. Stafford County Dep't of 

Social Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992)). 

On the "respective degrees of fault" issue, the evidence 

before the trial judge pits Lynn's admitted adultery against 

John's twenty-year showing of base and profane behavior, not 

only with his wife, but with his children and his extended 

family. We believe a reasonable jurist could put John's "fault" 

in a league apart from the type of mere incivility or petulance 

of manners ordinarily alleged, and often proved, in nearly every 

contested divorce case. We thus dismiss as exaggerated John's 

argument that sustaining the trial court's finding on these 

facts would effectively write the "respective degrees of fault" 

factor out of Code § 20-107.1(B). Nor do we believe, as John 
- 14 - 

contends, that the trial court's finding essentially declares 

that John's behavior "amounted to a justification for adultery." 

The law does not excuse, condone, or justify Lynn's infidelity. 

But neither does the law turn a blind eye to John's behavior, 

which multiple witnesses described as both unrestrained and 

longstanding. 

On the second factor, the "relative economic circumstances 

of the parties," Code § 20-107.1(B), the trial court found 

"extreme disparities in their relative economic situations, both 

in terms of earning capacity, current incomes and other economic 

assets and resources." Ample evidence supports this finding. 

John has a secure job with a family company paying over $250,000 

a year plus corporate dividends and family related gifts. 

John's interests in stocks, real estate, and tangible assets 

exceeds $6 million. On the other hand, Lynn has no separate 

assets of any significance and holds down a $10.00-an-hour job 

as a receptionist. 

For these reasons, the trial court was not plainly wrong in 

finding, by clear and convincing evidence, that denying spousal 

support under Code § 20-107.1(B) would constitute a "manifest 

injustice" based upon the respective degrees of fault 

attributable to John and Lynn as well as their disparate 

financial circumstances. Because credible evidence supports 

that conclusion, we affirm the trial court on this issue. 
- 15 - 

B. 

 Lynn contends that the trial court erred by not classifying 

as marital the full appreciation in John's stock in his family's 

trucking company that occurred during the marriage. The court 

divided the appreciation component of the stock value into 90% 

separate and 10% marital. We find no error in the trial court's 

factual findings on this matter. 

 Separate property that increases in value during the 

marriage "shall be marital property only to the extent that 

marital property or the personal efforts of either party have 

contributed to such increases, provided that any such personal 

efforts must be significant and result in substantial 

appreciation of the separate property." Code 

§ 20-107.3(A)(3)(a). Separate property that has appreciated in 

value due to forces other than either party's efforts, such as 

passive appreciation or the personal efforts of others, remains 

separate property. See Martin v. Martin, 27 Va. App. 745, 750, 

501 S.E.2d 450, 452 (1998) (en banc). In addition, 

the nonowning spouse shall bear the burden 

of proving that (i) contributions of marital 

property or personal effort were made and 

(ii) the separate property increased in 

value. Once this burden of proof is met, 

the owning spouse shall bear the burden of 

proving that the increase in value or some 

portion thereof was not caused by 

contributions of marital property or 

personal effort. 
- 16 - 

Code § 20-107.3(A)(3)(a); see Gilman v. Gilman, 32 Va. App. 104, 

120, 526 S.E.2d 763, 771 (2000). Slight efforts are not enough; 

the nonowning spouse must prove that personal efforts "were 

significant and resulted in substantial appreciation of separate 

property." Bchara v. Bchara, 38 Va. App. 302, 314, 563 S.E.2d 

398, 404 (2002). 

In this case, credible evidence supports the trial court's 

determination that John's stock appreciated greatly because of 

passive growth and the efforts of others. The court examined in 

detail the "extent that Mr. Congdon's efforts were an active 

part of the company's overall growth." Taking into account that 

John's father, brother, and other key officers played more 

active managerial roles in the family business, the trial court 

found John's efforts contributed to only 10% of the stock 

appreciation. See Rowe v. Rowe, 24 Va. App. 123, 133-34, 480 

S.E.2d 760, 764-65 (1997) (recognizing that brother's efforts 

and growth in surrounding areas undermined the significance of 

husband's contributions to the stock's increase in value); 

Decker v. Decker, 17 Va. App. 12, 17-18, 435 S.E.2d 407, 411-12 

(1993) (finding that husband's value to company illustrated his 

"substantial contribution" to the stock's increase in value). 

Lynn has not shown this factual finding to be plainly erroneous 

or without evidence to support it. 
- 17 - 

IV. 

 The trial court did not err in awarding spousal support 

under the "manifest injustice" exception to the adultery bar of 

Code § 20-107.1(B). Despite articulating the legal standard 

incorrectly, the court's factual findings show that it applied 

both factors in reaching its decision. We thus reject John's 

challenge to the support award. 

We also affirm the trial court's decision to classify 90% 

of the stock appreciation as separate property. The court 

applied Code § 20-107.3(A) properly and rested its conclusion on 

a satisfactory factual basis. 

 Affirmed.