The Court of Appeals upholds an award of alimony despite the recipient's adultery, on grounds of "manifest injustice" consideringthe parties' "relative economic circumstances" respective degrees of fault in the breakdown of the marriage, in Pattillo v. Pattillo, unpublished 5/29/2018. Just as in Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), "fault" for this purpose includes everything leading to the breakdown of the marriage, not just conduct that would be grounds for divorce. It can even include "a gradual breakdown in the marital relationship".
When asked to overrule the long-standing Barnes holding, the Court replies that "Even if we wished to do so, we could not," because of "the doctrine of interpanel accord," meaning that a "decision of one panel . . . ‘cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court." It cites Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc).
In this case, the trial court found that the husband's income was $260,000 per year; and the wife earned $9/hr and could earn only $25,000 per year (the husband's expert's figure), having only a high school diploma and having stayed home with the children during the 18-year marriage. The divorce was caused by the wife's several years of adultery with two family friends and neighbors, but that "Husband’s inattention to Wife and the amount of time he devoted to his career, which often took him away from home at least one week of every month, led to the gradual dissolution of the marriage before Wife committed adultery.” After coming home from work he would merely "acknowledge" the family members and then be "glued to his computer" until bedtime. It continued,
Wife testified that the marriage was a loveless and lonely place as far back as the early 2000’s. Husband was unemotional and both parties were non-confrontational which would result in the parties failing to communicate with each other. Both parties admitted that their lack of communication was a large component in the dissolution of the marriage. Several witnesses who knew Wife and Husband over the years testified that Husband always tried to make Wife happy. However, Wife would complain about Husband’s lack of socializing with her and their friends and his unwillingness to spend money. ...
Husband testified that his lack of communication skills, work schedule and exhaustion contributed to the demise of the marriage. And the [c]ourt does so find. Therefore, even though Wife committed adultery in the years immediately prior to the parties’ separation, the [c]ourt finds that the marriage was irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties.
The appeals court did not award fees to either party.