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Court of Appeals of VirginiaMay 18, 1993
Record No. 1100-92-2 (Va. Ct. App. May. 18, 1993)

Record No. 1100-92-2

May 18, 1993


(Milton P. Miller, on brief), for appellant.

(Olivia N. Biss; McGuire, Woods, Battle Boothe, on brief), for appellee.

Present: Chief Judge Moon, Judges Barrow and Bray.


Pursuant to Code § 17-116.010 this opinion is not designated for publication.

Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the circuit court. Rule 5A:27.

Robert L. Umbarger ("husband") appeals the decision of the trial court denying his motion to terminate spousal support for Judith Ann Gordon Umbarger ("wife"). Umbarger asserts the following claims on appeal:

I. Wife's conduct, bordering on adultery, disqualified her from receiving spousal support;

II. Two witnesses who testified as to wife's mental, emotional and physical condition with regard to whether she could be gainfully employed were not qualified to do so;

III. Wife should be disqualified from receiving permanent spousal support for failing to pursue employment opportunities available to her; and

IV. Husband should have been awarded damages from wife for damage to the marital property.

Husband was granted a divorce by final decree, entered

December 10, 1990, on the grounds of cruelty and constructive desertion. Although husband pled adultery, the trial court ruled that adultery had not been proven. No appeal was taken from that decree. By order dated January 26, 1991, the trial court directed husband to pay $250 per month in spousal support. The trial judge also stated, "I encourage Mrs. Umbarger to take appropriate steps to become employed. I will entertain a motion to review this award at any time based on a change of circumstances, and in any event, after 12 months have expired from the sale of the house."

In November 1991, husband moved to terminate spousal support on the ground that wife had not sought employment "as instructed by the Court." Husband also sought an offset or termination of support due to the thousands of dollars he alleged he was required to spend to make the marital home habitable after wife vacated it. A hearing was held and evidence presented on both sides. In a letter opinion following the hearing, the trial court denied husband's claims. The court made a spousal support award of $250 per month after considering the factors listed in Code § 20-107.1.


Husband argues that wife's conduct should preclude her from receiving spousal support under Code § 20-107.1. That section states that no permanent support shall be awarded "from a spouse if there exists in such spouse's favor a ground of divorce" for adultery. However, the court explicitly rejected the allegation of adultery in ruling on the grounds for divorce. This ruling was not appealed. Therefore, this claim is not now available to husband. See Slagle v. Slagle, 11 Va. App. 341, 344, 398 S.E.2d 346, 348 (1990).


Husband challenges the witnesses introduced by wife to support her claim that she is as yet unable to hold a job. She offered testimony from a licensed professional counselor and from a licensed clinical social worker, both of whom had counseled her. Both witnesses found her to be depressed. One testified that wife had low self-esteem and lacked job skills. The witness stated that she had tried without success to find wife a job in the county where she now resides. The other witness testified that wife needed job training and that she had poor decision-making skills.

Husband alleges that these witnesses were not qualified to give expert evidence on wife's mental, emotional and physical condition regarding her ability to obtain and hold a job. "It is well established that the admissibility of expert testimony is within the sound discretion of the trial court, and that court's decision will not be disturbed absent an abuse of discretion." Patterson v. Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986). The issue of an expert's qualifications rests largely in the discretion of the trial court.Lynchburg Foundry v. Tune, 1 Va. App. 295, 299, 338 S.E.2d 645, 647 (1986). In this case, the trial court did not abuse its discretion in admitting the testimony of these professionals as to wife's mental and physical condition.


Husband alleges that the court ordered wife to obtain employment. On the contrary, the January 30, 1991 order read: "I encourage Mrs. Umbarger to take appropriate steps to become employed." In a February 19, 1992 order, which is before us on appeal, the trial judge stated: "I encouraged Mrs. Umbarger to seek employment. Realistically I do not feel that she will ever be employed on a long term basis." Wife had not been employed outside the home for twenty years. The judge did not impute income to wife based on her earning capacity, see Code § 20-107.1(1). We find that this action was not an abuse of discretion. See Calamos v. Calamos, 4 Va. App. 96, 100, 354 S.E.2d 102, 105 (1987) (if trial court has considered statutory factors of Code § 20-107.1, ruling will not be disturbed on appeal absent clear abuse of discretion).


Husband asserts that he should have been awarded damages for the condition of the marital domicile. He purchased the marital domicile from wife as part of the equitable distribution of property. After hearing evidence from both sides, the trial judge held: "I do not feel that it would be appropriate for the Court to hold Mrs. Umbarger responsible for any damages to the residence." On appeal, we view the evidence and all reasonable inferences in the light most favorable to the prevailing party. Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it."Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). The court heard testimony that most of the damage to the home was done before husband moved out. In addition, wife testified that, following the property settlement, husband "trashed the kitchen and garage." Although husband contested this evidence, the trial court chose to give it credence. This ruling is not plainly wrong or without evidence to support it.

For the reasons stated, we affirm the circuit court's decision.


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