ROGER G. WYATT
KIMBERLY S. WYATT
THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge
L. Isaacs (Robert L. Isaacs, P.C., on briefs), for appellant.
Richard L. Locke (Shannon S. Otto; Locke & Quinn on
brief), for appellee.
Present: Chief Judge Decker, Judges Petty and Huff Argued at
WILLIAM G. PETTY JUDGE
G. Wyatt (husband) and Kimberly S. Wyatt (wife) each filed
complaints for divorce; each alleged desertion or cruelty.
The trial court entered a decree of divorce on the grounds of
living separate and apart for a year. Husband argues on
appeal that the trial court erred in granting wife a
reservation to seek future spousal support because wife was
at fault in the destruction of the marriage. We disagree and
the facts in the light most favorable to the prevailing party
below, granting to it the benefit of any reasonable
inferences; we review issues of law de novo.
Hall v. Commonwealth, 55 Va.App. 451, 453 (2009).
parties were married in 2001. Shortly after the death of one
of the parties' three children, each party filed for
divorce; the cases were consolidated in August 2017. Each
party alleged cruelty and desertion. The parties later agreed
to divorce on the grounds of living separate and apart. In
making findings regarding the relative fault of the parties
in the demise of the marriage, the trial court found as
The [c]ourt heard a great deal of evidence that the
parties' marriage was an unhappy one from very early on.
This culminated in December 2016 when the parties' son
was diagnosed with terminal cancer, and Mrs. Wyatt told Mr.
Wyatt, not for the first time, that she wanted a divorce.
Mrs. Wyatt notes that problems began two years into the
parties' marriage. She cites Mr. Wyatt's controlling
and manipulative demeanor as a reason for the marriage's
dissolution and notes that he would say derogatory things to
her in private and in the presence of others. This was
corroborated by Mrs. Wyatt's witness and best friend, Ms.
Tiffany Scale, who said that Mr. Wyatt was
"condescending toward her, making comments about her
hearing, making fun of her, [making] comments about her
weight and also about her intellect." Mr. Wyatt argues
that Mrs. Wyatt's excessive alcohol consumption was an
issue early on in the marriage and a reason for the
trial court expressly incorporated these facts into its
analysis of the statutory factors in deciding spousal
support. See Code § 20-107.3. The court
concluded that, although wife had need for support, husband
had no ability to pay support. The court reserved the right
of each party to seek spousal support in the future upon
change of circumstance. Husband appeals that decision.
trial court has 'broad discretion in setting spousal
support and its determination will not be disturbed except
for a clear abuse of discretion." Giraldi v.
Giraldi, 64 Va.App. 676, 681 (2015). "In
determining the appropriate amount of spousal support, the
trial court must consider the needs of the requesting party
and the other spouse's ability to pay." Alphin
v. Alphin, 15 Va.App. 395, 401 (1992). Code §
20-107.1(E) requires the trial court to consider certain
statutory factors and additionally to "consider the
circumstances and factors which contributed to the
dissolution of the marriage, specifically including adultery
and any other ground for divorce [including desertion and
cruelty]." Thus, even where a court grants a divorce
based on a one-year separation, it must still consider any
proven fault-based ground in relation to spousal support. The
factors and circumstances are not limited to the legal
grounds for divorce, however, but also "encompass all
behavior that affected the marital relationship, including
any acts or conditions which contributed to the
marriage's failure, success, or well-being."
Barnes v. Barnes, 16 Va.App. 98, 102 (1993).
court does not award spousal support, it may "reserve
the right of a party to receive support in the future."
Code § 20-107.1(D). Moreover, "where there is no
bar to the right of spousal support, it is reversible error
for the trial court, upon request of either party, to fail to
make a reservation in the decree of the right to receive
spousal support in the ...