Opinion
Record No. 0459-94-2
Decided: January 17, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, John F. Daffron, Jr., Judge
George H. Edwards for appellant.
Robert C. Elliot, II (Rebecca E. Duffie, on brief), for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Robert Lee Taylor (Plaintiff) appeals from a final decree of divorce from Bobbie Turner Taylor (Defendant) and contends that the trial court abused its discretion: 1) when it ruled that defendant was entitled to a divorce on grounds of cruelty; 2) when it denied plaintiff's motion to order new tests to determine the paternity of the infant son, Robert Lee Taylor, Jr.; 3) in determining the amount of child support to be paid by plaintiff; 4) in determining the amount of spousal support to be paid by plaintiff; and 5) in awarding attorney's fees to defendant to be paid by plaintiff. We disagree and affirm the trial court in all respects.
1. The trial court did not abuse its discretion in granting the
defendant a divorce on grounds of cruelty. "Mental anguish, repeated and unrelenting neglect and humiliation, may be as bad as physical wounds and bruises, and may be visited upon an unoffending spouse in such degree as to amount to cruelty even in the very strict sense in which that term ought always to be used in the law of divorce." Bennett v. Bennett, 179 Va. 239, 242-43, 18 S.E.2d 911, 912 (1942). See also Elder v. Elder, 139 Va. 19, 26, 123 S.E. 369, 371 (1924); Twohy v. Twohy, 130 Va. 557, 563, 107 S.E. 642, 644 (1921). The evidence was sufficient to sustain a finding that the plaintiff was guilty of such cruelty as to justify the defendant in leaving her home. The defendant's deposition as well as the depositions of her daughter and her sister-in-law are replete with accounts of plaintiff's abusive language and behavior toward the defendant. From the evidence presented, the trial court could have found that the cumulative effects of the plaintiff's treatment of the defendant amounted to cruelty.
2. The trial court did not abuse its discretion when it denied the plaintiff's motion to order new tests to determine the paternity of the infant child, Robert Lee Taylor, Jr. A blood test of the child indicated that there was a 99.87 percent certainty that Robert was the plaintiff's son. See Code Sec. 20-49.1. Thus, because the defendant testified that the child belonged to her and the plaintiff, and there was little, if any, evidence of adultery committed by the defendant, we hold the denial of the plaintiff's motion for further testing was not an abuse of discretion.
3. The record shows that the trial court based its determination of child support to be paid by the plaintiff on the statutory guidelines pursuant to Code Sec. 20-108.2. There is sufficient evidence in the record to support the trial court's award of $821.00 based on the statutory guidelines. The plaintiff never put forth any evidence that his income had changed and there was ample testimony from both the defendant and her daughter that the defendant was underemployed solely due to the dependence of her handicapped son. As such, we hold the trial court did not abuse its discretion.
4. The trial court, "upon consideration of the factors set forth in Virginia Code Sec. 20-107.1," found that Mrs. Taylor was entitled to spousal support in the amount of $400 per month. While the parties did not furnish current income and expense statements, the trial court found that this award was appropriate. Based on the record we cannot disagree with its finding.
5. The record shows that before the final hearing, an old order for plaintiff to pay the defendant support of $450 per month was in place. The defendant testified that she was capable of earning only $350 per month. An exhibit entered by the defendant showed the plaintiff's income to be approximately $3,926 per month. While the exhibit was based on the plaintiff's income twenty-one months prior to the hearing, the plaintiff did not testify or put forth evidence to show that his income had changed.
The plaintiff argues that the trial court abused its discretion because it did not consider the parties' current income and expenses and cites Gamble v. Gamble, 14 Va. App. 558, 576-77, 421 S.E.2d 635 (1992), to support his argument. However, Gamble can be distinguished because in that case the trial court had evidence of the parties' current income presented to it which it failed to consider. In this case, the plaintiff failed to bring forward any evidence to show that either his income or expenses had changed. For this reason, we cannot say that the twenty-one month old income statement was too old for the trial court's consideration; the court considered the most recent evidence on which to base its findings. The trial court need only consider that evidence which is before it and the evidence in this case supports the trial court's spousal support award.
5. "[A]n award of attorney's fees to a party in a divorce suit is a matter for the trial court's discretion after considering the circumstances and equities of the entire case." Wagner v. Wagner, 4 Va. App. 397, 411, 358 S.E.2d 407 (1987). Again, we find that the record sufficiently supports the trial court's decision.
Accordingly, the judgment is affirmed.
Affirmed.