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Mundy v. Mundy

Court of Appeals of Virginia

April 5, 2016

THEODORE V. MUNDY, III
v.
ALISON D. MUNDY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Michael F. Devine, Judge.

Jennifer A. Mullett (Mullett Dove Meacham & Bradley, PLLC, on briefs), for appellant.

Stephen G. Cochran (Roeder & Cochran, PLLC, on brief), for appellee.

Present: Judges Humphreys, McCullough[*] and Senior Judge Haley.

OPINION

[66 Va.App. 179] JAMES W. HALEY, JR., JUDGE.

I.

Code § 20-107.1(B), referencing Code § 20-91(A)(1), denies support to an adulterous spouse. This bar is subject to a narrow exception:

[T]he court may make [a support] award notwithstanding the existence of [adultery] 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).

Relying on that exception, the trial court awarded support to an adulterous wife. Husband maintains that the statutory standard for the exception has not been met. We agree and reverse.

II.

The facts in this case are undisputed. In that posture:

The findings of a trial court after an ore tenus hearing should not be disturbed on appeal unless they are plainly wrong or without evidence to support them. A trial court's conclusion based on undisputed evidence, however, does not have the same binding weight on appeal. Moreover, a fact finder may not arbitrarily disregard uncontradicted evidence that is not inherently incredible.

Stroud v. Stroud, 49 Va.App. 359, 372, 641 S.E.2d 142, 148 (2007) (quoting Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, ...


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