Home / Fulltext Opinions / Virginia Court of Appeals / RIPPLINGER v. RIPPLINGER




SEPTEMBER 15, 1998
Record No. 0451-98-2




Thomas B. Hoover, Judge
Present: Judges Bray, Annunziata and Overton

(Dana L. Gay; Duty, Duty & Gay, on brief), for appellant.

(Breckenridge Ingles; Martin, Ingles & Ingles, on brief), for

Eugene Mary Ripplinger (husband) appeals the decision of the
circuit court awarding spousal support to Peggy W. Ripplinger
(wife) and deciding other issues. Husband contends that the trial
court erred by (1) awarding wife a divorce on the basis of a
one?year separation rather than awarding him a divorce on the
basis of cruelty and desertion; (2) awarding wife spousal
support; (3) ordering husband to pay one?half of wife’s
attorney’s fees; and (4) ordering husband to pay two?thirds of
the fees for the commissioner and court reporter. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
"The decree confirming the commissioner’s report is presumed
to be correct and will not be disturbed if it is reasonably
supported by substantial, competent, and credible evidence."
Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651,
652 (1985). However, "[t]he ultimate decision in the case is
left to the chancellor, who must review the evidence according to
correct principles of law and arrive at his or her own
conclusions." Cochran v. Cochran, 14 Va. App. 827,
831, 419 S.E.2d 419, 421 (1992).
Grounds for Divorce
A trial court is "not compelled ‘to give precedence to
one proven ground of divorce over another.’" Williams v.
, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992)
(citation omitted). "It is well established that ‘where dual
or multiple grounds for divorce exist, the trial judge can use
his sound discretion to select the grounds upon which he will
grant the divorce.’" Id. (citation omitted). Husband
contends that the trial court erred by failing to award him a
divorce on the grounds of wife’s cruelty and desertion. We find
no error.
Both parties alleged fault?based grounds for divorce. Husband
also alleged, and wife admitted, that the parties had lived
separate and apart for more than one year. The commissioner found
that both parties were equally at fault because each
constructively deserted the marriage through their cruelty to the
other. The commissioner recommended granting wife a divorce on
the basis of the one?year separation. The trial court accepted
the commissioner’s recommendation. The trial court’s finding was
supported by the evidence and husband has not demonstrated that
the trial court abused its discretion.
Spousal Support
Husband did not allege adultery by wife as a ground for
divorce. While the commissioner found that marital infidelities
by both parties during the marriage contributed to the
dissolution of the marriage, the commissioner made no finding
concerning adultery by wife. Therefore, there was no bar under
Code Sect.20?107.1 to an award of spousal support to wife.
Moreover, even if husband had alleged and proven adultery by wife
as a ground for divorce, the trial court was not barred from
awarding spousal support if it determined "from clear and
convincing evidence, that a denial of support and maintenance
would constitute a manifest injustice." Id.
The commissioner found that wife earned approximately
one?quarter what husband earned, that husband was the primary
wage?earner throughout the marriage, that both parties
contributed equally to the well?being of the marriage, and that
wife’s education and employment skills were limited. Based upon
the evidence, the commissioner recommended an award to wife of
$500 in monthly spousal support.
The trial court also heard the parties testify concerning their
respective income and expenses. While the trial court did not
expressly state that denial of support would constitute a
manifest injustice, it recited the statutory factors it
considered in determining the award of spousal support to wife
and expressly found that wife had the need for support and
husband the ability to pay support. Based upon the evidence
related to the statutory factors, we cannot say that the trial
court erred in affirming the commissioner’s recommendation to
award $500 in monthly spousal support to wife.
Award of Fees
Any award of attorney’s fees and costs to a party rests with
the sound discretion of the trial court and will only be
disturbed where there has been an abuse of discretion. See
Rowand v. Rowand, 215 Va. 344, 346?47, 210 S.E.2d 149,
151 (1974). Wife earned approximately one?quarter what husband
earned. The trial court found that husband expended approximately
$20,000 to cover various expenses related to the operation of his
farm, which the trial court expressly found to be a hobby, during
the period of time in which husband alleged he was unable to pay pendente
lite spousal support or mortgage expenses. Based upon our
examination of the record, we find no abuse of discretion in the
trial court’s decision to order husband to pay one?half of
wife’s attorney’s fees and two?thirds of the fees for the
commissioner and court reporter.
Accordingly, the decision of the circuit court is summarily


to Code Sect.17?116.010 this opinion is not designated for