COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata 

Argued at Chesapeake, Virginia 

BRIAN PATRICK CALVIN 

 OPINION BY 

v. Record No. 0384-99-1 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 21, 1999 

ELIZABETH JANE CALVIN 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 Stephen Merrill (Ghent Law Offices, on 

brief), for appellant. 

 No brief or argument for appellee1. 

 1

 Appellee filed no brief. Shortly before the date 

scheduled for oral argument, appellee moved to be permitted to 

argue orally. No good cause being shown for appellee's failure 

to file a brief, the motion is denied. See Rule 5A:26. 

 On appeal from a final divorce decree, Brian Patrick Calvin 

contends that the trial court erred in (1) awarding substantial 

spousal support to a spouse who has committed adultery in the 

absence of a showing of fault by the payor spouse, (2) 

calculating the amount of spousal support payments, and (3) 

allowing the taking of additional evidence following completion 

of the record. Because we find no abuse of discretion, we 

affirm the judgment of the trial court. 
I. Background 

 "On appeal, we review the evidence in the light most 

favorable to the prevailing party below . . . . Where 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." Ferguson v. 

Stafford County Dep't of Social Servs., 14 Va. App. 333, 336, 

417 S.E.2d 1, 2 (1992) (citation omitted). 

 Brian Patrick Calvin and Elizabeth Jane Calvin were married 

on May 3, 1986. They have two sons, one born of the marriage 

and one born to Mrs. Calvin and adopted by Mr. Calvin. The 

couple separated permanently in August 1994. Mrs. Calvin sued 

for divorce on the ground of desertion. Mr. Calvin filed a 

cross-bill alleging adultery. The commissioner found that Mrs. 

Calvin was vindictive and cruel to Mr. Calvin, that she 

destroyed the couple's property at Mr. Calvin's expense, and 

that she committed adultery. The commissioner recommended that 

a divorce be granted to Mr. Calvin on the ground of Mrs. 

Calvin's adultery. 

 On Mrs. Calvin's motion, the trial court re-referred the 

case to the commissioner, who heard new evidence concerning Mrs. 

Calvin's back surgery and its effects on her employment. Mrs. 

Calvin testified that she had trouble obtaining new employment 

and that she could not afford health insurance. On September 1, 

1998, the commissioner supplemented his original report with a 

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recommendation that Mr. Calvin be ordered to pay a lump sum of 

$10,080 in spousal support. The trial court affirmed the 

commissioner's findings. On January 22, 1999, it granted Mr. 

Calvin a divorce on the ground of adultery. Ruling that the 

denial of spousal support to Mrs. Calvin "would be a manifest 

injustice given her health condition, her reliance during the 

marriage on the financial support of [Mr. Calvin] and her 

present lack of health insurance coverage," the trial court 

ordered Mr. Calvin to pay Mrs. Calvin $10,080 lump sum spousal 

support over a three year period.2

II. Taking of Additional Evidence 

We first consider whether the trial court erred in ordering 

the commissioner to reconsider an award of spousal support. 

Mrs. Calvin presented new evidence regarding her health problems 

and their effect on her ability to work and to secure health 

insurance coverage. The commissioner heard new evidence on this 

issue only. He reported that Mrs. Calvin's health had 

deteriorated following the initial hearing and that her 

inability to work full time and to obtain health insurance 

required an award of spousal support to avoid a manifest 

injustice. The evidence supports that finding. 

 2

 The parties have not questioned on appeal whether the 

circumstances in this case justify the trial court's decision to 

award alimony as a lump sum. See Blank v. Blank, 10 Va. App. 1, 

5-6, 389 S.E.2d 723, 725-26 (1990). Therefore, we do not 

address that issue. 

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Mr. Calvin contends that the re-referral and taking of 

further evidence was error. "The granting or denying of a 

motion to hear additional evidence is within the sound 

discretion of the trial court." Rowe v. Rowe, 24 Va. App. 123, 

144, 480 S.E.2d 760, 770 (1997) (citing Morris v. Morris, 3 Va. 

App. 303, 307, 349 S.E.2d 661, 663 (1986)). The evidence at 

issue addressed whether a denial of spousal support would 

"constitute a manifest injustice." See Code § 20-107.1. 

Finding no abuse of discretion, we affirm the trial court's 

determination that new evidence on this subject should be 

considered. 

III. Spousal Support 

Mr. Calvin contends that the trial court erred in awarding 

Mrs. Calvin spousal support because the divorce was granted on 

the ground of her adultery. He argues further that the amount 

of the spousal support was erroneous. 

[N]o 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. 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). 

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Generally, a spouse who commits adultery is not entitled to 

spousal support. However, we have previously ruled as follows: 

While the husband correctly argues that Code 

§ 20-107.1 identifies adultery as the single 

fault ground for divorce which precludes 

"permanent maintenance and support" to the 

offending spouse, this limitation is not 

absolute. Notwithstanding a finding of 

adultery, a court "may award" spousal 

support, provided "the court determines from 

clear and convincing evidence, that a denial 

of . . . [such support] would constitute a 

manifest injustice, based upon the 

respective degrees of fault during the 

marriage and the relative economic 

circumstances of the parties." 

Williams v. Williams, 14 Va. App. 217, 220-21, 415 S.E.2d 252, 

254 (1992) (citation omitted). 

The respective degrees of fault in this case weigh heavily 

in favor of Mr. Calvin. Therefore, any "manifest injustice" 

resulting from a denial of spousal support must derive from the 

"relative economic circumstances of the parties." Mrs. Calvin 

testified clearly and without contradiction at the supplemental 

commissioner's hearing that she had undergone back surgery and 

had lost her job. Although she admitted that at the time of the 

hearing she had found other employment, her job was part-time 

and provided less income than her previous employment. She 

testified that she could neither secure health insurance through 

her employment, nor afford it on her own. 

The commissioner reported that "Mrs. Calvin's health has 

deteriorated since [the initial hearing]. . . . Given Mrs. 

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Calvin's medical history, her current medical condition which 

requires continued medical treatment, her lack of health 

insurance, and the fact that Mr. Calvin has almost wholly 

supported her during the marriage, [the] commissioner finds that 

a denial of spousal support would constitute a 'manifest 

injustice' under . . . Code § 20-107.1." The commissioner 

recommended an award of $10,080 support payable to Mrs. Calvin 

over a three year period "in order to provide [her] with funding 

sufficient to cover her medical expenses and adequate time in 

which to procure medical benefits and full time employment." 

Overruling Mr. Calvin's exception, the trial court accepted this 

recommendation. Clear and convincing evidence supports that 

decision. 

"In regard to the amount of the spousal support award, we 

will reverse an award on that basis only for an abuse of 

discretion or the judge's failure to consider all the factors 

set forth in Code § 20-107.1." Barnes v. Barnes, 16 Va. App. 

98, 103, 428 S.E.2d 294, 298 (1993) (citation omitted). "The 

determination whether a spouse is entitled to support, and if so 

how much, is a matter within the discretion of the trial court 

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

injustice has been done." Dukelow v. Dukelow, 2 Va. App. 21, 

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

The award of spousal support "'will not be disturbed except 

for a clear abuse of discretion.'" Dodge v. Dodge, 2 Va. App. 

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238, 246, 343 S.E.2d 363, 367 (1986) (citation omitted). We 

find no such abuse. Credible evidence in the record establishes 

that the amount of support ordered is consistent with Mrs. 

Calvin's needs and Mr. Calvin's ability to pay. 

The judgment of the trial court is affirmed. 

Affirmed. 

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