COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Dec ker, Judges Petty and Huff Argued at Richmond, Virginia

ROGER G. WYATT OPINION BY v. Record No . 0364-19-2 JUDGE W ILLIAM G. PETTY OCTOBER 1, 2019 KIMBERLY S. WYATT

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge Robert L. Isaacs (Robert L. Is aacs, P.C., on briefs), for app ellant. Richard L. Locke (Shannon S. O tto; Locke & Quinn on brief), f or appellee.

Roger G. Wyatt (husband) and Kim berly S. Wyatt (wife) each fil ed complaints for divorce; each alleged desertion or cruelty. The trial court en tered a decree of divorce on the grounds of living separate and a part for a year. Husband argue s on appeal that the trial court erred in granting wife a reserva tion to seek future spousal sup port because wife was at fault in the destruction of the marriage . We disagree and thus affirm.

I. BACKGROUND We view the facts in the light most favorable to the prevailing party below, granting to it the benefit of any reasonable inf erences; we review issues of l aw de novo . Hall v. Commonwealth, 55 Va. App. 451, 453 (2009). The parties were married in 20 01. Shortly after the death of o ne of the parties’ three children, each party filed for di vorce; the cases were consolid ated in August 201 7. Each party alleged cruelty and desertion. T he parties later agreed to div orce on the grounds of living separatePUBLISHED- 2 - and apart. In making findings regarding the relative fault of the parties in the demise of the marriage, the trial co urt found as follows: The [c]ourt heard a great deal o f evidence that the parties’ ma rriage was an unhappy one from very early on. This culminated in December 2016 when the parties’ s on was diagnosed with terminal cancer, and Mrs. Wyatt told Mr. Wyatt, not for the first time, that she wanted a divorce. Mrs. Wyatt notes that problems began two yea rs into the parties’ marriage. She cites Mr. Wyatt’s controlling and manipulative demeanor as a reason for the marriage’s dissolutio n and notes that he would say derogatory things to her in private and in the presence of others. This was corroborated by Mrs. Wyatt’s witn ess and best friend, Ms. Tiffany Scal e, who said that Mr. Wyatt was “condescending toward her, makin g comments about her hearing, making fun of her, [making] comm ents about her w eight and also about her intellect.” Mr. Wyat t argues that Mrs. Wyatt’s exces sive alcohol consumption was an issue early on in the marriage and a reason for the marriage’s dissolution. The trial court expressly incorporated these facts into its ana lysis of the statutor y factors in deciding spousal support. See Code § 20-107.3. The court concluded tha t, although wife had need for support, husband had no ability to pay supp ort. The court rese rved the right of each party to seek spousal support in the future upon change of circumstance. Hus band appeals that decision.

II. ANALYSIS

“The trial court has ‘broad di scretion in setting spousal suppo rt and its determination will not be disturbed except for a cl ear abuse of discretion.” Gira ldi v. Giraldi, 64 Va. App. 676, 681 (2015). “In determining the a ppropriate amount of spousal supp ort, the trial court must consider the needs of the requesting part y and the other spouse’s abilit y to pay.” Alphin v. Alphin, 15 Va. App. 395, 401 (1992). Code § 20-107.1(E) requires the tria l court to consider certain statutory factors and additionally to “consider the circumstanc es and factors which contributed to the dissolution of the marriage , specifically including adulter y and any other ground for divorce [including desertion and cruelty] .” Thus, even where a court g rants a divorce based on a one-year separation, it must sti ll consider any proven fault-ba sed ground in relation to spousal- 3 - support. The factors and circum stances are not limited to the legal grounds for divorce, however, but also “encompass[] all behavi or that affected the marital re lationship, including any acts or

conditions which contributed to the marriage’s failure, success , or well-being.” Barnes v. Barnes, 16 Va. App. 98, 102 (1993). When a court does not award spous al support, it may “reserve th e right of a party to receive support in the futur e.” Code § 20-107.1(D). Moreover, “where there is no bar to the right of spousal support, it is rev ersible error for the trial court, upon request of either party, to

fail to make a reservation in t he decree of the right to receiv e spousal support in the event of a change of circumstances.” Bacon v. Bacon, 3 Va. App. 484, 490- 91 (1986). Here, husband contends that “des ertion and cruelty by wife shou ld have barred her right to the reservation [of spousal support].” Prior to 1988, Code § 20-107.1 stated “no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under any provisi on of § 20-91 (1), (3) or (6 ) [cruelty or desertion] or of § 20-95.” “The 1988 amendment to Code § 20-107.1 removed fault as a bar to spousal support except for adultery, sodomy or buggery committed outside the ma rriage.” 1 Dexter v. Dexter, 7 Va. App. 36, 43 n.4 (1988). Currently, Code § 20-107.1(B) prov ides 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 provis ions of subdivision A(1) of C ode § 20-91, [adultery, sodomy

1 We note that Zinkhan v. Zinkhan, 2 Va. App. 200, 205 (1986), c ited by husband in his brief, was decided prior to the 1988 amendment. See id. (“It i s settled law in this Commonwealth that a party shall not be required to pay permanen t spousal support if there exists in such spouse’s favor a g round of divorce under Code § 20-91(6 ) [cruelty or desertion].”). The 1988 amendment overruled that por tion of the opinion that held that cruelty and desertion were a complete bar to spousal support.- 4 - or buggery].” 2 The record supports wife’s argument that none of these ground s for divorce were ever alleged or proven. Thus, the re was no statutory bar to sp ousal support. In determining how much, if any, spousal support to award, the trial court was required to consider, among other things, “th e circumstances and factors wh ich contributed to the dissolution of the marriage.” Code § 20-107.1( E). The trial court conside red the testimony and evidence produced by the parties concerning each party’s behavior toward the other. The trial court made factual findings that recognize d the parties’ marriage was unha ppy from early on. The court found fault with each party, noting e vidence of husband’s contr olling, manipulative, and condescending behavior towards wif e and evidence of the impact of wife’s excessive alcohol consumption on the marriage. The trial court acknowledged test imony from a non-party witness regarding husband’s actions tow ard wife. The court did not fin d desertion or crue lty by wife as a

factor in the dissolu tion of the marriage. Although the trial court declined to award spousal support, it was not error for the court to reserve wife’s right to seek spousal support in the future pursuant to Code § 20-107.1(D). See Bacon, 3 Va. App. at 490. Wife requested attorney’s f ees for this appeal. See Fox v. Fo x, 61 Va. App. 185, 207-08 (2012) (“The appellate court ha s the opportunity to view the re cord in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment [of attorney’s fees].” (quoting O’Loughlin v. O’Loughlin, 23 Va . App. 690, 695 (1996))). After considering the record and argum ents in this case we grant wife ’s request.

2 Even then, the bar is not absolute as “the court may make [a s pousal support] award notwithstanding the existence of such ground if the court deter mines from clear and convincing evidence, that a denial of suppor t and maintenance would consti tute a manifest injustice . . . .” Code § 20-107.1(B).- 5 - III. CONCLUSION The trial court considered the evidence of each party’s fault in the demise of the marriage. Finding no error in the trial court’s reservation of spousal su pport for wife, we affirm. The matter is

remanded to the trial court for an award of attorney’s fees to wife incurred in this appeal, which should also include any additiona l attorney’s fee s and costs in curred at the remand hearing.

Affirmed and remanded.