Termination of the Marriage - § 2-4 (D) - § 2-7

(D) Cruelty

2012— Ibrayeva v. Kublan, Va. Ct. of Appeals, Unpublished, No. 1120-12-4
The cruelty that authorizes divorce is anything that tends to bodily harm and thus renders cohabitation unsafe; or, as expressed in older decisions, anything that involves danger of life, limb or health. Evidence of multiple physical altercations between the parties instigated by wife, wife’s convictions for assault and battery arising from two such altercations, and husband’s testimony that he had been continually verbally and physically victimized in his home for years provided the trial court sufficient evidence to grant husband a divorce on grounds of cruelty.

2006— Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2
Trial court did not err in granting Wife a divorce on the grounds of cruelty. Husband assaulted Wife, throwing her across the bed and onto the floor, causing her to sustain serious injuries. This single act of physical violence, which was corroborated, constituted cruelty.

2003— Shaffer v. Shaffer, Va. Ct. of Appeals, Unpublished, No. 3329-02-4
By engaging in sexual intercourse with multiple paramours without any form of protection against sexually transmitted diseases, and then continuing to have sex with his unsuspecting wife, husband rendered continued cohabitation "unsafe" for cruelty purposes.

1989— Davis v. Davis, 8 Va. App. 12
The general rule in Virginia is that a single act of physical cruelty will constitute grounds for divorce if it is so severe and atrocious as to endanger life, if it indicates an intention to do serious bodily harm, if it causes reasonable apprehension of serious danger in the future, or if the precedent or attendant circumstances show that the acts are likely to be repeated. Husband's shooting of wife in the back was so severe and atrocious that it endangered her life, and thus constituted cruelty for which divorce could be decreed.

1985— Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.

1961— Sollie v. Sollie, 202 Va. 855
Angry words, coarse and abusive language, humiliating insults, and annoyances in all forms that malice can suggest, may as effectually endanger life or health as personal violence, and afford grounds of relief to the injured spouse. Cruelty is cumulative, admitting of degrees and augmented by additions, so that it may be condoned and even forgiven for a time, and up to a certain point, without any bar to bringing it all forward when a continuance of it has rendered it no longer condonable.

1958— Hoffecker v. Hoffecker, 200 Va. 119
Habitual drunkenness or use of narcotic drugs is generally not regarded, of itself, as a ground for divorce. However, such habits, together with misconduct caused directly or indirectly by habitual intoxication or existing conjunctively therewith may constitute cruelty.

1957— Baytop v. Baytop, 199 Va. 388
Testimony by wife and her family members, and exhibits showing that husband never established a home for his wife, that he humiliated her, was often rude, that he became cold and indifferent toward her, that he engaged in illicit relations with another woman, and that such conduct over time caused wife to suffer increased anxiety and loss of weight was sufficient to sustain a divorce based on cruelty, though no physical cruelty was inflicted.

1957— Beers v. Beers, 198 Va. 682
Mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, do not amount to legal cruelty, (citing Latham v. Latham, 71 Va. 110 (1878)).

1956— DeMott v. DeMott, 198 Va. 22
Cruelty which authorizes divorce is conduct that tends to bodily harm, and thus renders cohabitation unsafe; or that involves danger to life, limb or health. It is generally held that a single act of cruelty does not constitute ground for divorce, unless it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future, or precedent or attendant circumstances show that the acts are likely to be repeated.

The trial court did not err in refusing to grant wife a divorce based on wife's testimony of a single incident in which husband grabbed her, threw her against a wall, struck her, and threatened her with a butcher knife. The court found that the assault, as reprehensible and unwarranted as it was, did not do her serious bodily harm or cause her reasonable apprehension of serious danger in the future, as evidenced by wife's failure to leave the residence until five days after the incident. Furthermore, there was no evidence that the husband had previously been guilty of such repeated acts of mistreatment that she could not with safety to her person and health continue to live with him.

1953— Upchurch v. Upchurch, 194 Va. 990
Mere financial difficulties arising from extravagance and lack of pecuniary responsibility do not amount to legal cruelty and do not constitute grounds for divorce.

1920— Ringgold v. Ringgold, 128 Va. 485
Mental anguish, and repeated and unrelenting neglect and humiliation may be as bad as physical wounds and bruises, and may be visited upon an unoffending spouse in such degree as to amount to cruelty. A spouse, without physical violence, actual or threatened, may render the marriage impossible to be endured.

(E) Desertion

2016— Mabe v. Mabe, Va. Ct. of Appeals, Unpublished, No. 0007-16-3
The trial court did not err by granting Wife a divorce on desertion grounds where Wife’s testimony established that Husband belittled Wife about her weight, that Husband threatened to leave Wife if she failed to lose weight, and that Wife begged Husband to remain in the marriage and offered to attend marriage counseling.

2003— Buchanan v. Buchanan, Va. Ct. of Appeals, Unpublished, No. 2244-02-2
Desertion as a ground for divorce does not depend on who actually leaves the marital home. Instead, desertion refers to leaving the marital relationship, and may be “constructive,” if the cruelty of one party results in the other party’s enforced separation.

1993— Barnes v. Barnes, 16 Va. App. 98
Desertion occurs when one spouse breaks off marital cohabitation with the intent to remain apart permanently, without the consent and against the will of the other spouse. Where one spouse has filed suit for divorce, he/she is justified in leaving the marital residence so long as the complaint is not unfounded and was not filed as a ruse to “desert with impunity.”

1987— Graves v. Graves, 4 Va. App. 326
Trial court did not err in finding that husband had not proved desertion. After an argument, wife left the home with only a jacket and her purse, and spent the night at her friend’s home. While there, wife told the parties’ minor child via telephone that she “may or may not be back in the course of time.” When wife returned to the home the next morning, husband refused to allow her into the home, and physically assaulted her in removing her from the home. Wife refused to return after that incident. The trial court properly held that wife’s overnight stay away from the residence and her statement to the parties’ child did not evidence a clear intent to desert the marriage, proof of which is required for a claim of desertion.

1987— Jamison v. Jamison, 3 Va. App. 644
Where sexual privileges are willfully withdrawn without just cause or excuse, a finding of desertion does not require the breach and neglect of all marital duties, but only the breach of other significant marital duties, which results in the practical destruction of home life in every true sense. The party so deserted is not required to remove himself from the house in order to maintain the claim for desertion.

1987— Wagner v. Wagner, 4 Va. App. 397
Trial court erred in awarding husband a divorce based on desertion where wife established that husband agreed to her departure from the marital home. When a separation of husband and wife is by agreement or where the husband assents to, or acquiesces in, the wife’s separation from him, he cannot maintain a suit for divorce on the ground of desertion. A separation by mutual consent does not amount to desertion or abandonment in the law.

1986— Petachenko v. Petachenko, 232 Va. 296
A single act of sexual intercourse by the parties, without more, does not constitute reconciliation or preclude the continuance of a claim for desertion. The "matrimonial cohabitation" consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship. To end desertion, the parties must resume the performance of marital duties with the intent to end the desertion. Not only is resumption of sexual relations a factor, the parties also must resume the performance of marital duties while living together on a continuous basis.

1986— Bacon v. Bacon, 3 Va. App. 484
The party claiming desertion as grounds for divorce has the burden of proving desertion by a preponderance of the evidence.

1985— Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.

(F) No Fault

2010— Andrews v. Creacey, et. al., 56 Va. App. 606
Once one party entertains an intent to separate, and the parties have lived separate and apart without any cohabitation and without interruption for one year, the grounds of divorce are complete. It is not relevant whether the party entertaining the intent to separate remained competent during the entire one-year separation period. The trial court did not err in finding that husband had the intention to separate from wife, despite his guardian’s statements that when he later interviewed husband, husband seemed to “go along with whatever was represented” and didn’t exhibit “a whole lot of understanding.” Husband’s letter to the guardian dated prior to the guardian’s interview stated that he wanted a divorce, and enumerated several reasons therefore. Despite conflicting testimony as to statements made by husband to wife after he wrote his letter to the guardian, the trial court was entitled to evaluate the credibility of the witnesses and accept the testimony of the guardian regarding husband’s intent.

2010— Wynn v. Wynn, Va. Ct. of Appeals, Unpublished, No. 2400-09-1
Trial court did not abuse discretion in implicitly finding that the parties separated when wife moved out of the marital residence, despite the fact that husband allowed her to return temporarily three years later after learning that she had been sleeping in her car. Upon wife’s return, the parties slept in separate bedrooms and wife paid husband rent. Thus, the trial court’s finding that the marriage was undergoing an irreconcilable breakdown at all times since Wife initially left the residence was not error.

2002— Bchara v. Bchara, 38 Va. App. 302
Wife and Husband were separated in the same home even though they ate together and maintained a clean home.

1987— Graves v. Graves, 4 Va. App. 326
The trial court erred in granting wife a divorce based upon a one-year separation, where the last hearing regarding the separation prior to the entry of the order occurred one day before the one-year period expired. Because no evidence regarding the maintenance of the separation was heard after the expiration of the one-year separation, the trial court lacked jurisdiction to grant the final divorce.

1986— Petachenko v. Petachenko, 232 Va. 296
A single act of voluntary sexual intercourse does not, alone, automatically terminate a separation.

(G) Felony Conviction

1993— Bandas v. Bandas, 16 Va. App. 427
“Cohabitation” is a bundle of duties, however many more of these duties, responsibilities, rights and incidents are missing in the situation where one of the parties is incarcerated and the other is not. Va. Code §20-91(3) itself presumes that incarceration terminates cohabitation. By use of the word “resumed” in the statute, the legislature has clearly expressed its judgment that in case of confinement for a felony, cohabitation has ceased, and having ceased, must be “voluntarily” resumed. Wife did not “voluntarily resume” cohabitation with husband, as contemplated pursuant to Va. Code §20-91(3), by visiting husband in prison.

§ 2-5. Divorce - Jurisdiction (A) Personal (B) Subject Matter

2007— Jett v. Jett, Va. Ct. of Appeals, Unpublished, No. 2862-06-4
Husband contended that the trial court lacked subject matter jurisdiction to enter a spousal support award in its final divorce decree because Wife’s bill of complaint for divorce did not ask the trial court to award spousal support. The Court of Appeals held that the question Husband raised was related solely to the court’s ability to exercise the subject matter jurisdiction granted by statute, it was waivable, and Husband waived his opportunity to challenge this aspect of the trial court’s spousal support award by failing to object to the entry of the final decree in a timely fashion.

2007— Motley v. Motley, Va. Ct. of Appeals, Unpublished, No. 2551-06-1
Nothing in Va. Code §20-91(A)(9)(a) requires that the one-year separation period must occur prior to the filing of the bill of complaint in order for the trial court to have jurisdiction to enter a final decree of divorce. Wife’s initial complaint alleged a separation date more than one year prior to filing.

2000— Adoteye v. Adoteye, 32 Va. App. 221
Divorce action filed by a foreign national in Virginia on a G-4 (non-immigration) visa is dismissed because she is not a bona fide resident of Virginia as required by Va. Code § 20-97.

(C) Transfer 2012— Williams v. Williams, 61 Va. App. 170

Pursuant to Va. Code 20-79(c), a circuit court may transfer custody and support matters to a juvenile court for post-judgment enforcement, but not to another circuit court.

§ 2-6. Divorce – Types (A) Bed and Board (B) Bonds of Matrimony § 2-7. Divorce – Defenses (A) Collusion (B) Condonation

2007— Polemeni v. Polemeni, Va. Ct. of Appeals, Unpublished, No. 1682-06-1
Trial court did not err in awarding divorce on the grounds of adultery. Wife admitted to having an adulterous relationship during the marriage. Husband condoned the adultery but it was conditioned upon her cessation of her contact with the boyfriend and remaining in New York, and Wife’s moving back to Virginia and resuming relations with the boyfriend nullified the condonation.

1989— Cutlip v. Cutlip, 8 Va. App. 618
Condonation is defined to be the remission, by one of the married parties, of an offense which he knows the other has committed against the marriage, on the condition of being continually afterward treated by the other with conjugal kindness. Conjugal kindness requires that the guilty spouse not only refrain from a repetition of the offense forgiven, but also refrain committing any other offense which falls within the cognizance of a matrimonial court.

Condoned adultery is revived where the guilty party resumes association with his paramour. The trial court erred in finding that husband revived previously-condoned adultery where the evidence established only that, since wife’s initial condonation, husband had spent long hours away from home, had seen his paramour again in a public place, and had lied to wife about his whereabouts on the night he saw the paramour. Although revival does not require strict proof of an actual repetition of the offense, the evidence here, while suspicious, was not inconsistent with husband’s innocence.

1986— Petachenko v. Petachenko, 232 Va. 296
While a single voluntary act of sexual intercourse by an innocent spouse condones a known offense of adultery, it does not suffice as condonation of desertion.

1965— McKee v. McKee, 206 Va. 527
Knowledge is necessary to condonation. A spouse cannot condone what he does not know. Where a spouse is guilty of several instances of adultery and the other spouse knows of one of the instances but not the others, the condonation operates as to the known instance, but, because of the lack of knowledge, the forgiveness does not bar an action based on the other instances.

1965— McKee v. McKee, 206 Va. 527
Condoned adultery is revived where the guilty party has resumed her association with her former paramour, even without strict proof of an actual repetition of the offense.

1957— Baytop v. Baytop, 199 Va. 388
That wife had sexual relations with husband, upon his insistence, the night before the parties separated did not constitute condonation of husband’s long-continued course of mistreatment and emotional cruelty. That conclusion was supported by evidence that, upon wife’s return from church the next morning, husband did nothing to indicate a desire to have wife remain in the house or that he had any intention of treating her better in the future.

1936— Martin v. Martin, 166 Va. 109
Condonation is conditional forgiveness. Knowledge is necessary, as one cannot condone what one does not know. Moreover, it is essential that there be no repetition of the offense. Repetition revives the right to complain of an injury forgiven.

(C) Connivance (D) Consent (E) Justification

1985— Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.

(F) Laches (G) Insanity (H) Reconciliation

2003— Jacobsen v. Jacobsen, 41 Va. App. 582
The party seeking to avoid an agreement based on a defense of reconciliation has the burden of proving that the reconciliation was genuine. Reconciliation is the resumption of one's marital status by voluntarily living together, openly as husband and wife. It is more than simply cohabitation or the observance of civility; it comprehends a fresh start and genuine effort by both parties. Resumption of sexual relations is merely a factor. Reconciliation must exhibit proof that the parties intend to live together as husband and wife and take up their respective roles in the relationship. It must ordinarily appear the parties have established a home and that they live together in it in the normal relationship of husband and wife. Normal married life must be viewed in the context of a couple's married life together as it existed before they separated.

The trial court did not err in finding that the parties' purported reconciliation was a sham, perpetrated by husband for the sole purpose of avoiding compliance with a prior settlement agreement. Husband and wife cohabitated for only twenty-nine sporadic days over a three-month period, during which husband continually called his paramour, told his paramour that he loved her, went on a camping trip with his paramour, admitted to "possibly" having sex with his paramour, dropped wife from his insurance, and listed his address on new resumes and business cards as that of his paramour in Ohio rather than the marital residence in Virginia.

(I) Recrimination

1989— Davis v. Davis, 8 Va. App. 12
Although husband proved that wife willfully deserted him, the defense of recrimination, based on husband's shooting wife in the back ten days after the separation of the parties, barred the granting of a divorce based on desertion to husband. Although wife proved cruelty by husband, the defense of recrimination, based on her willful desertion of the marriage ten days prior to the shooting, barred the granting of a divorce based on cruelty to wife. Because both parties were at fault, the trial court properly refused to grant either a fault-based divorce and instead granted the divorce based upon a one-year separation.

1895— Miller v. Miller, 92 Va. 196
The trial court did not err in sustaining husband’s demurrer to wife’s complaint alleging adultery, where wife stated in her complaint only that “husband has been guilty of adultery on many occasions, and that she has not lived or cohabited with him since she so learned that fact.” The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues in such a manner that the adverse party may be prepared to meet it on trial. Though the name of the person with whom the adultery was committed need not be given, the adultery must be charged with reasonable certainty as to time and place. Neither party has the right to make such a charge against the other on mere suspicion, relying on being able to fish up testimony before trial to support the allegation.

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