## Facts

- Husband and wife married in 1977, had three children, and separated after a long-term marriage.
- Husband filed for divorce in 1999 alleging wife’s adultery; wife counterclaimed alleging cruelty and constructive desertion.
- Wife admitted adultery that continued for several years during the marriage.
- The trial court credited evidence that husband engaged in severe verbal abuse and degrading conduct toward wife, including behavior witnessed by the children.
- Husband had high income from a family trucking-business enterprise (about $250,000 annually) and substantial assets (over $6 million).
- Wife had limited education and work history, had been primarily a homemaker, and at trial earned modest part-time wages as a receptionist.
- Husband owned separate stock in the family business; the parties disputed whether the stock’s increase in value during the marriage was marital or separate.
- The trial court granted husband a divorce for wife’s adultery, awarded wife spousal support upon finding “manifest injustice” if support were denied, and classified 90% of the stock appreciation as separate property.

## Issues

1. Whether spousal support may be awarded to an adulterous spouse under the “manifest injustice” exception, and whether the exception requires consideration of both fault and economic circumstances.
2. Whether the trial court erred in classifying 90% of the appreciation in husband’s separately owned business stock as separate property.

## Decision

- The appellate court affirmed the divorce decree.
- It held the statute’s “manifest injustice” exception requires a conjunctive analysis of both (a) the parties’ relative degrees of fault and (b) their relative economic circumstances.
- Although the trial court articulated the exception in disjunctive terms, the error was harmless because the court’s findings satisfied the correct conjunctive standard.
- It affirmed the spousal support award based on evidence of husband’s serious marital misconduct and the parties’ stark economic disparity.
- It found no reversible error in classifying 90% of the stock appreciation as separate property, given evidence that the increase was largely passive and attributable to forces other than husband’s personal efforts.

## Legal Principles

- Under Va. Code § 20-107.1(B), adultery generally bars spousal support unless denial would be a “manifest injustice” proven by clear and convincing evidence.
- The “manifest injustice” inquiry is conjunctive: the court must consider both the parties’ relative fault and their relative economic circumstances.
- A trial court’s misstatement of the governing legal formulation may be harmless if its factual findings and analysis satisfy the correct standard.
- In equitable distribution, appreciation of separate property remains separate to the extent it is attributable to passive factors or the efforts of others; appreciation attributable to a spouse’s personal efforts may be marital.
- Appellate review defers to supported factual findings in domestic relations and equitable distribution matters absent reversible error.

## Conclusion

The court affirmed an award of spousal support to an adulterous spouse because, considering both comparative fault and economic circumstances, denying support would be manifestly unjust, and it also upheld the classification of most appreciation in separately owned business stock as separate property where credible evidence showed predominantly passive growth.


Congdon v. Congdon, 578 S.E.2d 833 (Va. Ct. App. 2003)