David Kenneth Giraldi v. Eva Maria Giraldi , 64 Va. App. 676 ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, AtLee and Senior Judge Haley
PUBLISHED
Argued at Richmond, Virginia
DAVID KENNETH GIRALDI
OPINION BY
v. Record No. 1647-14-2 JUDGE RANDOLPH A. BEALES
MAY 5, 2015
EVA MARIA GIRALDI
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Joseph J. Ellis, Judge
Charles E. Powers (Batzli Stiles Butler PC, on brief), for appellant.
Eva Maria Giraldi, pro se.1
On August 11, 2014, the circuit court entered a final decree of divorce between David
Kenneth Giraldi (husband) and Eva Maria Giraldi (wife), in which it awarded husband a divorce
a vinculo matrimonii from wife on the ground of adultery. On appeal, husband raises two
assignments of error. First, husband argues that the circuit court erred by awarding a
reservation2 of spousal support to wife because there was not clear and convincing evidence –
1
Appellee wife’s brief was due to be filed in the office of the clerk of the Court of
Appeals on or before January 4, 2015. See Rule 5A:19(b)(2). Wife did not file a brief, but did
file a letter with this Court in March, 2015 – shortly before oral argument in this case. This
Court did not receive wife’s letter – which was dated March 2, 2015 – until March 12, 2015.
Wife did not seek leave of court to file the letter, which was filed well past the deadline for her
brief. Wife’s letter does not meet the requirements for appellee briefs set forth in Rule 5A:21.
Accordingly, for these reasons, this Court cannot – and does not – consider the contents of wife’s
letter.
2
Pursuant to Code § 20-107.1(D),
the court may reserve the right of a party to receive support in the
future. In any case in which the right to support is so reserved,
there shall be a rebuttable presumption that the reservation will
based on the respective degrees of fault during the marriage and the relative economic
circumstances of the parties – to support a finding that denial of a reservation of spousal support
to wife would constitute a manifest injustice. Second, husband contends that the circuit court
erred when it allowed wife’s counsel to elicit evidence of condonation and when it indicated that
it would consider such evidence when deciding whether to grant wife a reservation of the right to
spousal support.3 For the following reasons, we reverse the circuit court and remand this case to
the circuit court for entry of an order removing wife’s reservation of spousal support from the
divorce decree.
I. BACKGROUND
Under settled principles of appellate review, we view the evidence in the light most
favorable to wife, as the party prevailing below, Chretien v. Chretien, 53 Va. App. 200, 202, 670
S.E.2d 45, 46 (2008), and we grant wife “all reasonable inferences fairly deducible therefrom,”
Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). In this case, the
parties were married in December of 1999, and they separated in May of 2012. At trial, wife
admitted to having an affair with Jose Acanda-Montano from January of 2011 until June of 2011.
Acanda-Montano, who testified at trial, corroborated wife’s admission of adultery. Acanda-
Montano testified that he began to have sexual intercourse with wife in January, 2011.
According to wife, she had the affair because she “never felt [she] had a husband.” She testified
continue for a period equal to 50 percent of the length of time
between the date of marriage and the date of separation.
3
We need not – and do not – reach husband’s second assignment of error. By reversing
the circuit court’s decision to award a reservation of spousal support to wife, the question
whether the circuit court erred by admitting evidence of condonation to consider whether to
award wife a reservation of spousal support becomes irrelevant because this Court today decides
to reverse the reservation of spousal support to wife. “In this case, as in all others, we seek to
decide cases ‘on the best and narrowest ground available’ from the record.” Kirby v.
Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600, 603 n.2 (2007) (internal quotations
and citations omitted).
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that husband was “a very good provider” but that “there was no emotional support.” Wife went
on to testify that husband would frequently travel out of town for business, but stay beyond the
date the business trip ended. According to wife, when husband was home during the week he
would simply “go to work, come home, eat dinner, go upstairs.”
Husband also testified about the state of his marital relationship. According to husband,
he and wife argued frequently. Their breakdown in communication was severe enough that, if
husband had on his pajamas during the argument, he would walk to the walk-in closet and say he
was putting on his clothes so he could leave. According to husband, wife would then shut the
closet door and hold husband hostage in the closet. During one of those incidents, wife put her
hand in between the closet door and the door frame and slammed it about three or four times.
She threatened husband that, if he left the house, she would call the police and tell them that
husband caused her self-inflicted injury.
Both parties offered into evidence a number of documents related to their financial
situation. According to those documents, husband had income of $16,432 per month at the time
of trial. Included in this amount was husband’s salary from General Dynamics, his Coast Guard
retirement pension, and his Coast Guard disability pension. Husband also had retirement
accounts and savings bonds at the time of trial. The circuit court also received evidence that wife
was earning $3,369 per month as a school teacher and that she was also eligible for retirement
benefits when she retired.
After hearing all of the evidence, the circuit court ruled, in relevant part, as follows:
I don’t know what’s going to happen in the future with reference to
either one of you. Notwithstanding the adultery that’s the grounds
for the divorce in this case. I think it would constitute a manifest
injustice to deny a reservation quite different in a matter of support
so each of you will have a reservation one to the other.
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In announcing its ruling, the circuit court, at four different times, admonished wife that her
behavior was “inexcusable” and either “reprehensible” or “beyond reprehensible.” The divorce
decree specified that each party was awarded a reservation of spousal support for a period of six
years and two months.
II. ANALYSIS
“‘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)). The trial court
has “‘broad discretion in setting spousal support and its determination will not be disturbed
except for a clear abuse of discretion.’” Fadness v. Fadness, 52 Va. App. 833, 845, 667 S.E.2d
857, 865 (2008) (quoting Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998)
(internal quotation and citation omitted)). A trial court’s decision regarding spousal support
constitutes reversible error only if “its decision is plainly wrong or without evidence to support
it.” Id. A trial court “‘by definition abuses its discretion when it makes an error of law. . . . The
abuse-of-discretion standard includes review to determine that the discretion was not guided by
erroneous legal conclusions.’” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445
(2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).
Code § 20-107.1(B) states as follows:
Any maintenance and support shall be subject to the provisions of
§ 20-109, and 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. 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,
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based upon the respective degrees of fault during the marriage and
the relative economic circumstances of the parties.4
(Emphasis added). Adultery is a fault ground for divorce under Code § 20-91(1), and, therefore,
a finding that a party has committed adultery generally is an absolute bar to the adulterous party
from receiving spousal support under Code § 20-107.1(B).
A circuit court may grant an award of spousal support to the adulterous spouse only under
a narrow exception that requires a finding of manifest injustice by clear and convincing evidence
based on the two factors that the General Assembly has deemed relevant for considering whether
the exception applies – “respective degrees of fault” and “relative economic circumstances.”
Therefore, the exception to the rule barring spousal support to an adulterous spouse applies only
if the circuit court finds – by clear and convincing evidence – that denying the award of spousal
support would constitute a manifest injustice based on (1) the respective degrees of fault of the
parties during the marriage and (2) the relative economic circumstances of the parties. See
Congdon v. Congdon, 40 Va. App. 255, 267, 578 S.E.2d 833, 839 (2003).
Furthermore, the decision to invoke the manifest injustice exception must be rooted in
both the “respective degrees of fault” factor and the “relative economic circumstances” factor.
Id. at 264, 578 S.E.2d at 837; see Barnes v. Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294, 298
(1993) (explaining that “[i]n order to find that denial of support will constitute a manifest
injustice, the court must base that finding on the parties’ comparative economic circumstances
and the respective degrees of fault” (emphasis in original)). This Court has previously
interpreted the plain language of Code § 20-107.1(B) by stating, “The statute requires the
decision to be ‘based upon’ these factors. This language implies a higher level of justification
4
Husband challenges the circuit court’s decision to award a reservation of spousal
support to wife. However, there is no reason to conclude that an adulterous spouse who requests
a reservation of spousal support – as opposed to a periodic or lump sum award of spousal support
– should be exempt from the burden of proving a manifest injustice.
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than a statutory command that merely requires the trial judge to consider this or that factor.”
Congdon, 40 Va. App. at 264, 578 S.E.2d at 838 (emphasis added) (internal citation omitted).
“‘Respective degrees of fault during the marriage’ are not limited to legal grounds for divorce.
. . . [Rather], ‘fault during the marriage’ encompasses all behavior that affected the marital
relationship, including any acts or conditions which contributed to the marriage’s failure,
success, or well-being.” Barnes, 16 Va. App. at 102, 428 S.E.2d at 298.
Applying these principles to the record in this case, we hold that the decision to award a
reservation of spousal support to wife was reversible error. The record does not show that the
circuit court actually determined, by clear and convincing evidence, that invoking the spousal
support bar of Code § 20-107.1(B) would cause a manifest injustice based on an assessment of
the parties’ “respective degrees of fault” and the parties’ “relative economic circumstances.”
The circuit court never stated – or even indicated – that wife had the burden of proving a
manifest injustice by clear and convincing evidence. Therefore, we have no way of determining
from the record whether the circuit court found that wife satisfied the burden of proof required
by Code § 20-107.1(B).
Moreover, the circuit court never expressly mentioned the two factors upon which a clear
and convincing demonstration of manifest injustice must be based – i.e., the parties’ respective
degrees of fault during the marriage and the relative economic circumstances of the parties. The
circuit court did not make any actual findings of fact on these two factors when it addressed
wife’s request for a reservation of spousal support under Code § 20-107.1(B). 5
5
It is certainly true that “[i]n Virginia, a trial court has no common law duty to explain in
any detail the reasoning supporting its judgments. Absent a statutory requirement to do so, ‘a
trial court is not required to give findings of fact and conclusions of law.’” Pilati v. Pilati, 59
Va. App. 176, 180, 717 S.E.2d 807, 809 (2011) (quoting Fitzgerald v. Commonwealth, 223 Va.
615, 627, 292 S.E.2d 798, 805 (1982)). Moreover, Code § 20-107.1(B) does not require that a
circuit court actually enumerate the various aspects of fault attributable to one party or the other.
Congdon, 40 Va. App. at 266, 578 S.E.2d at 838. Thus, the circuit court was not required to
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During a different point of the proceeding, when addressing the grounds for divorce and
child custody, the circuit court did make a vague reference to fault shared by the parties, noting
that it was “satisfied that there is some degree of fault on both sides” and suggesting that
problems in the marriage may have prompted wife to commit adultery. However, there is
nothing in the record indicating that the circuit court – when addressing wife’s request for a
spousal support reservation order – actually compared the respective degrees of fault by the
parties. See Congdon, 40 Va. App. at 266, 578 S.E.2d at 838. To the extent that statements
indicating that such a comparison was made can be gleaned from the record, those statements
certainly are not favorable to wife. The circuit court admonished wife several times that her
conduct during the marriage was “inexcusable,” “reprehensible,” and “beyond reprehensible.”
Moreover, wife actually admitted to having an adulterous relationship during the marriage.
Similarly, the record does not establish that the reservation of spousal support awarded to
wife was based on the “relative economic circumstances” of the parties. Code § 20-107.1(B).
Although the circuit court did receive some evidence of each party’s finances at the time of trial,
it never made any factual findings regarding the difference between the two parties’ economic
circumstances. While the evidence presented at trial seemed to indicate that husband had a
larger monthly cash flow than wife, there was no evidence regarding other aspects of wife’s
economic profile, such as her earning capacity, and both husband and wife were gainfully
employed. Moreover, wife, who had an apparently steady job as a teacher, was receiving an
annual salary of approximately $40,000 at the time of trial and was eligible for retirement
benefits when she retired. Husband, on the other hand, testified that his job was not guaranteed
provide a step-by-step account of how it arrived at the decision that the manifest injustice
exception should apply. However, the record on appeal still must provide a basis for concluding
that the circuit court’s determination was based on the relevant statutory factors and the required
burden of proof of clear and convincing evidence.
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past June, 2015. The circuit court, at any rate, apparently did not base its decision to make a
reservation of spousal support on these tangible considerations. Instead, the circuit court simply
stated, “I don’t know what’s going to happen in the future with reference to either one of you.”
After stating that it did not know what would happen to the parties in the future, the
circuit court then found that denying a reservation of spousal support would constitute a manifest
injustice. By its very definition, however, a “manifest injustice” cannot be speculative. See
Black’s Law Dictionary 974 (7th ed. 1999) (defining “manifest injustice” as “direct, obvious,
and observable”). Furthermore, Code § 20-107.1(B) makes the “manifest injustice” burden
higher still by requiring proof of the manifest injustice by clear and convincing evidence. See
Seemann v.Seemann, 233 Va. 290, 293 n.1, 355 S.E.2d 884, 886 n.1 (1987) (defining “clear and
convincing” evidence as “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”). In
addition, this clear and convincing showing of manifest injustice must be based on the two
factors of respective degrees of fault and relative economic circumstances. Code § 20-107.1(B).
Even viewing the evidence in the light most favorable to wife (as we must since she was the
prevailing party below), it is difficult to see how the circuit court could have determined – based
on the parties’ respective degrees of fault during the marriage and their relative economic
circumstances – that clear and convincing evidence supported a finding that failure to grant wife
a reservation of spousal support would constitute a manifest injustice. In this case, the
reservation of spousal support was not awarded consistent with the very high burden set forth in
Code § 20-107.1(B). Accordingly, we reverse the circuit court’s decision to award wife a
reservation of spousal support.
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III. CONCLUSION
The circuit court erred in invoking the manifest injustice exception to award wife a
reservation of spousal support. In this case, the circuit court did not make any particularized
reference to the two factors under Code § 20-107.1(B) when deciding to award wife the
reservation. Nor did it make any factual findings related to those factors. Absent any factual
findings related to the two factors, this Court certainly cannot find that the circuit court’s
decision to apply the manifest injustice exception in this case was based on clear and convincing
evidence. We reverse the circuit court, and direct the circuit court on remand to enter an order
removing the reservation of spousal support for wife from the divorce decree.
Reversed and remanded.
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