From the Circuit Court of Hanover County comes the divorce case of Jennifer M. Payne v. David Ray Payne, Record No. 0065-22-2.
In this matter, on December 16, 2021, the Hanover County Circuit Court entered a final decree of divorce between Jennifer M. Payne (“wife”) and David Ray Payne (“husband”). On appeal, wife contends that the trial court abused its discretion by finding that she deserted the marriage, denying her an immediate award of permanent spousal support, and crediting husband for all mortgage and home equity line of credit (HELOC) payments he made from the separation to the date of the trial court’s letter opinion.
During testimony at trial, husband stated he earned just over $132,000 per year and had received an annual bonus in 2020 totaling approximately $18,000. Wife testified that the parties enjoyed a comfortable standard of living during the marriage, but the Husband
disagreed, and testified that the parties lived paycheck to paycheck, that wife earned approximately 37.000 a year, that he refinanced the HELOC on the marital home, and regularly consolidated credit card debt. The couple had a high amount of marital debt.
By the end of 2018, wife began sleeping in a spare bedroom. During this time, wife struggled with anxiety and depression upon the children moving out of the marital home. Wife, who was accustomed to having a home “full of kids,” was left “alone a lot at the house.” She suffered panic attacks. She testified that the parties relationship got worse, and that she drank more frequently to ease her depression. Events in early 2019 consisted of wife moving in with her parents and telling husband she just needed out, to then moving back into the couple's spare bedroom at the marital home and telling husband she wanted to attend couples counseling, then in April, husband helped wife move into an apartment of her own, then eventually she moved back in with her parents. This all occurred within a few months.
Ultimately in court wife admitted to falsifying her expenses and was likely discredited. Further, upon testimony from husband that his earnings were insufficient to pay wife any amount of spousal support, he testified that he borrowed money to pay part of the temporary spousal support amount. After wife moved out of the marital home, husband became solely responsible for the mortgage and
HELOC payments, as well as other marital debt. Husband argued that he could not continue paying spousal support because of the parties’ marital debts. He testified that he was also responsible for their adult children’s student loans if the children defaulted. While acknowledging that he had played golf, gone hunting, and travelled since the separation, husband stated that the vacations were paid for with his annual bonus. Both parties stipulated that since the separation, husband had paid the mortgage and HELOC
principal down by $14,321.86.
Finally, the trial court granted husband a divorce on the grounds that wife willfully deserted the marriage, finding that “[n]either Wife nor Husband testified as to Wife’s reason for leaving the marriage” and that “Husband testified that he never wanted Wife to leave.” The trial court considered the factors enumerated in Code § 20-107.1(E), including the fault grounds for divorce, which it considered “heavily.”
The wife appealed believing that she moved out to get better, not to abandon the marriage. The court disagreed writing, “Furthermore, a trial judge’s factual finding will ‘not be set aside unless plainly wrong or without evidence to support it.’” Id. (quoting Farley, 9 Va. App. at 328). However, this Court reviews de novo all issues of law, including those involving “examination of the proper interpretation and application of [Code § 20-91(A)(6)].” Dixon v. Dixon, 71 Va. App. 709, 718 (2020). a. Wife broke off marital cohabitation with the intent to end the marriage.
Wife challenges the trial court’s finding of desertion by asserting that her departure was justified by her mental health, arguing that “her leaving was not abandonment, it was for her to get better mentally.” Wife’s reason for leaving the marital home does not constitute legal justification for desertion under Virginia law. “[A] party may be justified in leaving a marital [home] even if grounds of divorce do not exist and may do so without committing desertion.” Kerr v. Kerr, 6 Va. App. 620, 624 (1988).
This case revolved around a wife with mental health concerns from being an empty nester who resorted to drinking, moving out, avoiding contributing financially to the couple's bills and essentially removing herself from the marriage. She said she wanted counseling and that husband never responded and this issue appears to have been discussed very little. Regardless of the ultimate case of the demise of this marriage, it certainly appears that the wife became apathetic once her children were out of the home. This is a normal and sad reality that occurs far too often. She viewed herself as alone and not part of a marriage mostly due to the husband's more active and social lifestyle. However, because she was working then stopped contributing financially in any manner, instead choosing to move out, her life appeared to unravel. Likely unaware of Virginia law, she never realized her actions reflected desertion and cause her to lose spousal support. But the rule of law and the court's decision was upheld. This however is a case that one would hope could have been avoided had there been more communication between the adult children and the husband getting involved. Perhaps this marriage could have been saved but it was not.
Divorce is emotional, financially devastating and morally damaging to some parties. As a family law attorney, it is my desire and job to guide my clients through each stage of the tedious divorce process in a manner that is helpful, that follows the law, that benefits the children, if any, and finally, to a conclusion where my clients can see a future not a past. Please contact me at 434.293.4562 for a consultation today if you are in a situation where you have questions and concerns.
Rob Hagy
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