COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Overton 

Argued at Salem, Virginia 

NORMA JEAN ARMISTEAD 

 MEMORANDUM OPINION* BY 

v. Record No. 0614-97-3 JUDGE SAM W. COLEMAN, III 

 FEBRUARY 3, 1998 

WILLIAM P. ARMISTEAD 

FROM THE CIRCUIT COURT OF WISE COUNTY 

Ford C. Quillen, Judge 

 (Anthony E. Collins; Collins & Collins, on 

brief), for appellant. Appellant submitting 

on brief. 

 William J. Sturgill (Sturgill & Sturgill, 

P.C., on brief), for appellee. 

 In this divorce case, Norma Jean Armistead (wife) appeals 

the trial court's decree granting William P. Armistead (husband) 

a divorce on the ground of adultery. She contends that husband 

failed to prove by clear and convincing evidence that she 

committed adultery. She further argues that the trial court 

erred in determining the value of the marital estate, in 

distributing the marital assets, and by denying her spousal 

support. For the reasons that follow, we affirm. 

I. BACKGROUND

 The couple was married on January 16, 1963. During the 

marriage, husband inherited a life estate in certain stock from 

his father which included fifty-five shares of Coca-Cola Bottling 

 

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

designated for publication. 
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Company of Norton and sixty shares of Coca-Cola Bottling Company 

of Vansant. From this inheritance, husband and William Kline, 

who also inherited stock from husband's father, formed Lonesome 

Pine Coca-Cola Bottling Company. Lonesome Pine purchased the 

outstanding shares of the Norton and Vansant bottling companies 

with a loan secured by husband's mother. Kline died, and 

Lonesome Pine purchased back Kline's shares from the Kline 

estate. Husband sold his shares of Lonesome Pine to Coca-Cola 

Consolidated for $9,000,000 and received an additional $2,000,000 

for a non-compete agreement.1

 The couple invested the proceeds 

from the stock sale by purchasing several rental properties, 

which husband managed. 

 On August 4, 1995, the parties separated. Husband filed for 

divorce on the ground that wife committed adultery. The trial 

court appointed a special commissioner to receive the evidence 

and to make factual findings pertaining to the grounds for 

divorce, spousal support and maintenance, and equitable 

distribution. The parties submitted their evidence to the 

special commissioner by de bene esse depositions. 

 Husband presented the testimony of Regina Lambert and Karen 

Blevins to prove his allegation that wife committed adultery. 

 

 1The special commissioner found that husband effectively 

merged his life interest in the Norton and Vansant bottling 

stocks into the new corporation formed during the marriage and, 

thus, transmuted the stock into marital property. See Steinback 

v. Steinback, 11 Va. App. 13, 18-20, 396 S.E.2d 686, 690 (1990). 

 Husband does not contest this finding on appeal. 
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Lambert testified that on several occasions she accompanied wife 

to various hotels and reserved rooms in her own name so that wife 

could covertly meet Bobby Pittman. On these occasions, Lambert 

would leave wife and Pittman in the hotel room and return a few 

hours later to take wife home. Lambert also accompanied wife to 

meet Pittman at his house in Kentucky. She waited outside for 

twenty minutes before wife asked her to come inside Pittman's 

house. Wife told Lambert that she was meeting with Pittman to 

discuss his amorous relationship with wife's granddaughter 

because the granddaughter had told wife that Pittman had raped 

her. Lambert further testified that she never observed wife 

having sexual intercourse with Pittman and that wife never 

discussed having sex with him, but she did see wife and Pittman 

holding hands. On one occasion, wife urged Lambert to ask 

Pittman "if he loved her." 

 Blevins testified that wife had recounted to her several of 

the meetings with Pittman. Blevins testified that wife admitted 

having sexual intercourse with Pittman. When asked whether wife 

expressly stated that she had sex with Pittman, Blevins claimed 

that wife said she "had the best time of her life." According to 

Blevins, wife stated that she put "leg locks" on Pittman, that he 

"didn't last too long," and that she offered to give him oral 

sex. Blevins also testified that she did not observe any sexual 

activities between wife and Pittman, but she did see the two 

holding hands. 
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 After reviewing the evidence and briefs of the parties, the 

commissioner recommended that the husband be granted a divorce on 

the ground of adultery and that wife should not be awarded 

permanent spousal support because of her adultery. The 

commissioner considered the appraisals of the marital property 

submitted by the parties and found the values submitted by the 

husband's expert to represent the value of the property. The 

commissioner further recommended that the husband be awarded 

sixty percent of the marital property and that the wife be 

awarded forty percent. The trial court overruled wife's 

exceptions to the commissioner's report and entered a final 

decree approving and affirming the commissioner's findings. Wife 

appealed. 

II. STANDARD OF REVIEW

 "Where the evidence is heard by a commissioner and not ore

tenus by the trial court, the decree is not given the same weight 

as a jury verdict, . . . but if the decree is supported by 

substantial, competent and credible evidence in depositions, it 

will not be overturned." McLaughlin v. McLaughlin, 2 Va. App. 

463, 466-67, 346 S.E.2d 535, 536 (1986) (citations omitted). See

Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 

(1986) (divorce decree based solely on depositions held "not as 

conclusive on appellate review as one based upon evidence heard 

ore tenus, but such a decree is presumed correct and will not be 

overturned if supported by substantial, competent, and credible 
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evidence"). 

III. ADULTERY

 To prove adultery, the evidence of another spouse's 

extramarital sexual intercourse must be "clear and convincing." 

Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989). 

"While a court's judgment cannot be based upon speculation, 

conjecture, surmise, or suspicion, adultery does not have to be 

proven beyond all doubt." Gamer v. Gamer, 16 Va. App. 335, 339, 

429 S.E.2d 618, 622 (1993) (citing Coe v. Coe, 225 Va. 616, 622, 

303 S.E.2d 923, 927 (1983)). Rather, the evidence must "'produce 

in the mind of the trier of facts a firm belief or conviction as 

to the allegations [of adultery] sought to be established.'" 

Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) 

(quoting Seeman v. Seeman, 233 Va. App. 290, 293 n.1, 355 S.E.2d 

884, 886 n.1 (1987)). 

 Clear and convincing evidence in the record supports the 

trial court's finding that the wife committed adultery. Husband 

produced substantial, competent and credible evidence of wife's 

extramarital affair with Pittman. Blevins testified that wife 

admitted having sexual intercourse with Pittman. Furthermore, 

the evidence proved that wife covertly met with Pittman in hotel 

rooms on various occasions. In these instances, the wife's 

friends would reserve a hotel room in the friend's name, leave 

wife and Pittman in the hotel room, and return several hours 

later to pick up wife. Further, Blevins testified that wife held 
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hands with Pittman and described to Blevins the "leg locks" she 

placed on Pittman and how Pittman "didn't last too long" during 

their encounters. 

 The commissioner was free to disbelieve wife's explanation 

to Lambert that she met with Pittman to discuss his relationship 

with wife's granddaughter. Based on the foregoing evidence, we 

cannot say that the trial court erred in finding that wife 

committed adultery. 

 IV. VALUATION OF MARITAL PROPERTY

 We hold that the trial court's valuation of the marital 

assets was not erroneous. The trial court must value the 

parties' marital property before making an equitable 

distribution. See Code § 20-107.3. The parties bear the burden 

of providing the trial court with sufficient evidence from which 

it can value their property. Bosserman v. Bosserman, 9 Va. App. 

1, 5, 384 S.E.2d 104, 107 (1989). 

 In this case, the parties presented conflicting expert 

appraisals of the property. The commissioner found the value of 

the property to be "consistent with the appraisal of [husband's 

expert]." Wife contends the commissioner arbitrarily disregarded 

the credible evidence of wife's expert and argues that the trial 

court's acceptance of the commissioner's valuation was error. 

 Wife's contention is without merit. The commissioner had 

discretion to resolve the conflicting evidence of the expert 

appraisers and to make factual findings. See Reid v. Reid, 7 Va. 
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App. 553, 563, 375 S.E.2d 533, 539 (1989) (commissioner may find 

one of several conflicting expert appraisals more credible so 

long as credible evidence supports selected appraisal); see also

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) 

("The commissioner has the authority to resolve conflicts in the 

evidence and to make factual findings."). Moreover, the 

commissioner stated in his report that he found the testimony of 

the husband's expert to be "convincing and worthy of a great deal 

of weight." In this respect, the commissioner's report indicates 

that he weighed the evidence of both experts and found the 

valuation of the husband's expert more plausible. Accordingly, 

the trial court did not err in accepting the commissioner's 

valuation of the marital property. 

V. EQUITABLE PROPERTY DISTRIBUTION

 We hold that the trial court did not err in assigning only 

forty percent of the marital estate to wife under equitable 

distribution. "The goal of equitable distribution is to adjust 

the property interests of the spouses fairly and equitably." 

Booth v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). 

In making an equitable distribution, once the court classifies 

and determines the value of marital property, it must distribute 

the property to the parties, taking into consideration all of the 

factors in Code § 20-107.3(E). Alphin v. Alphin, 15 Va. App. 

395, 403, 424 S.E.2d 572, 576 (1992). The court is not required 

to qualify each factor, or weigh them equally, but its 
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consideration of each factor must be supported by the evidence. 

Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 434 

(1991). Further, in fashioning an award, the trial court has 

broad discretion to weigh the particular circumstances of each 

case, Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644 

(1992), and its decision will not be set aside unless it is 

plainly wrong or unsupported by the evidence. Srinivasan v. 

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). 

 Here, the commissioner considered all of the factors in Code 

§ 20-107.3(E). He found that husband's business interests and 

acumen supplied the "vast majority of the monetary contribution 

to the well-being of the family" and accounted for the 

acquisition of the couple's marital property. He noted that wife 

cared for the couple's child and house in the early years of the 

marriage, but was frequently absent from the home towards the end 

of the marriage. Further, he found that wife's adultery 

contributed to the dissolution of the marriage, but did not cause 

any economic depreciation in the marital property. From these 

facts, the commissioner recommended assigning sixty percent of 

the value of the marital property to husband and forty percent to 

wife. 

 Wife contends the evidence fails to support the 

commissioner's finding that husband contributed the substantial 

portion of the marital property. We disagree. The record 

reveals that most, if not all, of the marital property was 
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acquired by husband's use of his inheritance to establish 

Lonesome Pine and purchase the rental properties. The 

commissioner's finding is supported by substantial and credible 

evidence and, thus, the trial court's affirmance of this finding 

is not error. 

 Further, citing Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 

(1988), wife contends the commissioner and trial court improperly 

considered wife's marital fault in making an equitable 

distribution. Aster held that "[c]ircumstances that lead to the 

dissolution of the marriage but have no effect upon marital 

property, its value, or otherwise are not relevant in determining 

a monetary award, need not be considered." 7 Va. App. at 5-6, 

371 S.E.2d at 836. In this vein, Aster sought to eliminate 

arbitrary monetary awards that punished a spouse for his or her 

marital fault without showing such fault had an economic impact 

on the marriage. See O'Loughlin v. O'Loughlin, 20 Va. App. 522, 

528, 458 S.E.2d 323, 326 (1995). 

 Wife's reliance on Aster is misplaced. Although the 

commissioner did find that wife's adultery had "not caused any 

economic depreciation in the marital property value," the 

commissioner's report does not reflect that he considered wife's 

adultery in recommending an equitable distribution. Moreover, 

the trial court did not mention wife's adultery in finding the 

commissioner's sixty/forty distribution fair and equitable, but 

rather relied "especially [upon] the monetary contributions by 
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the husband . . . ." Accordingly, the trial court's equitable 

distribution did not violate Aster.2

VI. DENIAL OF SPOUSAL SUPPORT

 We hold that the trial court's denial of spousal support was 

not erroneous. Code § 20-107.1 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 [for 

adultery]." The court may, in its discretion, make such an award 

if it determines from "clear and convincing evidence that a 

denial of support and maintenance would constitute a manifest 

injustice, based upon respective degrees of fault during the 

marriage and the relative economic circumstances of the parties." 

 Code § 20-107.1. Wife asserts that the trial court's denial of 

 

 2At any rate, we elaborated on Aster in O'Loughlin and 

stated that: 

 

 our ruling in Aster did not establish that 

the negative impact of marital fault . . . 

could not be considered in light of other 

factors, such as the couple's nonmonetary 

contributions, under Code § 20-107.3(E). 

Just as marital fault could be shown to have 

an economic impact on a marriage, i.e., waste 

or dissipation of assets, it can also be 

shown to have detracted from the marriage in 

other ways. 

20 Va. App. at 528, 458 S.E.2d at 326. Thus, "the negative 

impact of fault on non-economic aspects of the marriage [may] 

also be considered in determining a monetary award." Theismann 

v. Theismann, 22 Va. App. 557, 569, 471 S.E.2d 809, 815 (1996) 

(emphasis added). In this respect, the trial court, if it had so 

chosen, could have considered the effect of wife's adultery on 

the nonmonetary contributions by the parties to the well-being of 

the family. 
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spousal support constituted a manifest injustice because she had 

not performed any gainful employment for thirty years, is in poor 

health, and had become accustomed to having maids and 

housekeepers. 

 Decisions regarding spousal support rest within the sound 

discretion of the trial court and will not be reversed on appeal 

unless plainly wrong or unsupported by the evidence. Konefal v. 

Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154 (1994). The 

commissioner recommended denying wife spousal support after 

considering wife's adulterous conduct and the relative economic 

circumstances of the parties. We cannot say that the trial court 

abused its discretion in accepting this recommendation and 

finding that wife failed to show by clear and convincing evidence 

that its denial of spousal support constituted a manifest 

injustice. 

 Finding no error, we affirm the trail court's decree. 

 Affirmed.