Termination of the Marriage §2-1 - 2-4 (C)

Chapter 2

§2-1. Annulment

2015—MacDougal v. Levick, 66 Va. App. 50
Equitable principles such as unclean hands, equitable estoppel, and estoppel by laches do not apply so as to entitle a party to equitable distribution or spousal support where the marriage is void or voidable and decreed a nullity. Although these equitable principles govern challenges to the validity of a divorce, they are inapplicable annulment proceedings.

2012—Nasseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2570-11-4
The trial court did not err in finding a marriage bigamous, where evidence revealed that, although wife had obtained a "religious" divorce from her previous husband pursuant to Pakistani law, she had not obtained the requisite "legal divorce" pursuant to Pakistani law. Wife's testimony that she was unfamiliar with the additional "legal divorce" requirements of Pakistani law, and that she had a good faith belief that satisfaction of the "religious divorce" requirements under Pakistani law were sufficient to end her previous marriage, is insignificant. Such a mistaken belief does not render an otherwise void marriage valid.

2010—Mustafa v. Mustafa, Va. Ct. of Appeals, Unpublished, No. 2175-09-4
A party charging fraud as grounds for an annulment has the burden of proving, by clear and convincing evidence, (1) a false representation, (2) of material fact, (3) made intentionally and knowingly, (4) with the intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.

Trial court did not err in granting husband an annulment on grounds of fraud. Evidence showed that, despite Wife’s agreement with Husband prior to the marriage that she would have a sexual relationship with him after they were married, Wife admitted to others that she had no intention of consummating the marriage and that she only married husband so that she could come to the United States for the benefit of her daughter. The parties were never physically intimate throughout the marriage.

2006—Rahnema v. Rahnema, 47 Va. App. 645
The standard of proof for an annulment based upon bigamy is the clear-and-convincing standard. This standard supports the strong presumption favoring the challenged marriage.

§2-2. Corroboration Requirement

2016 —Belle v. Belle, Va. Ct. of Appeals, Unpublished, No. 0540-15-2
The trial court erred in awarding a divorce where the only evidence presented as to the grounds for the parties’ divorce was the parties’ testimony that they had lived separate and apart for one year continuously with the intention of ending their marriage, and neither party submitted depositions or affidavits from a third party witness to corroborate that testimony. Financial documents introduced by Wife corroborated only that the parties lived at separate residences, not that the parties intended to end their marriage. Similarly, testimony by Husband’s tax preparer was limited solely to tax questions and did not concern the grounds for the parties’ divorce.

2015 —King v. King, Va. Ct. of Appeals, Unpublished, No. 2066-14-4
The trial court did not err in granting Husband a divorce on grounds of cruelty. Wife’s criminal conviction for malicious wounding and sentencing orders, which Husband introduced into evidence, sufficiently corroborated Husband’s testimony that Wife shot him in the arm while he was sleeping.

2012—Ibrayeva v. Kublan, Va. Ct. of Appeals, Unpublished, No. 1120-12-4
The trial court did not err in finding sufficient corroboration of wife’s cruelty to husband. Pursuant to Va. Code §20-99.1, the absence of evidence of collusion meant that the trial court had to find only “slight” corroboration. Photographs of husband’s injuries caused by wife’s multiple assaults of him, testimony by a police officer regarding those incidents and wife’s propensity for violence, and testimony by husband’s mother regarding wife’s violence provided sufficient “slight” corroboration.

1986—Venable v. Venable, 2 Va. App. 178
Wife's offer into evidence of the torn pants that husband had ripped off of her on the occasion which prompted her leaving, pornographic magazines that husband kept in the marital home, and testimony by wife's mother that she had witnessed bruises and bite marks on wife as well as husband's violent temper were sufficient corroboration of physical and mental cruelty by husband. The purpose of requiring corroboration is to prevent collusion by the parties in obtaining a divorce. Where it is apparent, as it is in this case, that there is no collusion, the corroboration need only be slight.

The trial court did not err in refusing to grant husband a divorce on the grounds of wife's adultery. Wife admitted during the hearing that she had committed post-separation adultery. However, neither wife nor husband, who apparently first learned of wife's adultery during the hearing, offered evidence to corroborate wife's admission.

1961—Martin v. Martin, 202 Va. 769
The purpose of corroboration in a divorce case is to prevent collusion. When it is apparent that there has been no collusion between the parties, only facts necessary to the judgment must be corroborated.

1957—Baytop v. Baytop, 199 Va. 388
Corroboration rests in the facts and circumstances of each case. Only those facts necessary to the judgment must be supported. 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, and that he engaged in illicit relations with another woman was sufficient to sustain a divorce based on cruelty, though no physical cruelty was inflicted.

1952—Graves v. Graves, 193 Va. 659
The question of corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of that particular case. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. Any other rule would deprive the testimony of the complaining spouse of any practical effect. The general rule is that where a particular fact or circumstance is vital to the complaining spouse's case, some evidence of the same, in addition to the complainant's own testimony, is essential.

1936—Martin v. Martin, 166 Va. 109
Corroboration rests in the facts and circumstances of each case. Confirmation is not necessary for that removes all doubt, while corroboration only gives more strength than was had before. It need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established.

§2-3. Divorce – effect of §2-4. Divorce – Grounds (A) Generally

2008 —Fadness v. Fadness, 52 Va. App. 833
Where multiple grounds for divorce exist, the circuit court is free to choose between those grounds in granting the divorce, provided that the ground so chosen is supported by the evidence.

1994—Konefal v. Konefal, 18 Va. App. 612
One ground of divorce is not entitled to precedence over another. Where dual or multiple grounds exist, the trial judge has the sound discretion to select the grounds upon which he will grant the divorce, provided they are supported by the evidence.

(B) Adultery

2012—Jordan v. Jordan, Va. Ct. of Appeals, Unpublished, No. 0698-11-2
A credible explanation that demonstrates the relationship or living arrangement between the spouse and the alleged paramour was for economic benefit or personal convenience undermines an allegation of adultery. (Citing Hughes v. Hughes, 33 Va. App. 141 (2000)). Husband’s proffered evidence failed to indisputably refute wife’s credible explanation that her attorney-client relationship with her alleged paramour was strictly professional. Therefore, husband failed to meet the elevated standard of proving adultery.

2010—Davis v. Davis, Va. Ct. of Appeals, Unpublished, No. 1241-09-2
Evidence that husband and his paramour had known each other socially, that they met frequently at a tennis club, that husband had spent the night at the residence of the paramour when his wife was out of town, that the paramour had left husband sexually explicit voice messages, and husband’s and paramour’s inability to provide a credible explanation for the messages or conduct constituted clear and convincing evidence to support the trial court’s finding of adultery by husband.

2009—Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 2810-08-4
The following was sufficient to prove husband's post-separation adultery by clear and convincing evidence: testimony from a private investigator that husband and his paramour spent the night together regularly, and that on one occasion the investigator witnessed the two walk into husband's house, remain there all night, and the paramour exit the house the next morning looking disheveled and dressed in different clothes than those she wore the night before; deposition testimony by paramour that she and husband shared a room when vacationing and that she signed invoices during those vacations using husband's last name as if she and husband were married; husband's and paramour's own admissions that they had spent the night together in the same bed; and failure by husband or paramour to offer alternative explanations to their behavior.

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.

2003—Watts v. Watts, 40 Va. App. 685
Suspicious conduct, not denied nor explained by Husband, provided basis for trial court finding of adultery.

2000—Hughes v. Hughes, 33 Va. App. 141
One who alleges adultery as a grounds of divorce has the burden of proving it by clear and convincing evidence.

1998—Romero v. Colbow, 27 Va. App. 81
Photos of partially clad Wife in boyfriend's home, kissing, etc. do not establish adultery.

1995—Snyder v. Snyder, Va. Ct. of Appeals, Unpublished, No. 2147-94-4
Where husband and his alleged paramour both denied having a sexual relationship, husband subleased part of the woman’s house, husband hired the woman for a position at his school, husband called the woman several times to discuss his father’s death, and wife’s investigator saw only one brief kiss between the two, adultery was not established by clear and convincing evidence.

1993—Gamer v. Gamer, 16 Va. App. 335
Court of Appeals upheld trial court's award of no-fault divorce, despite the trial court's err in finding the evidence insufficient to prove husband's adultery. The record failed to show that the adulterous conduct had any economic impact on the marital property. Therefore, the Court of Appeals declined to disturb the no-fault decree.

1989—Derby v. Derby, 8 Va. App. 19
Trial court did not err holding that the following was clear and convincing evidence of wife’s adultery: a private investigator’s testimony that (1) wife had spent several nights together with her paramour in the same house; (2) that wife and the paramour had engaged in affectionate behavior in public, such as massaging each other’s neck, entwining arms, etc.; and (3) wife’s admissions that (i) she and her paramour were close friends who saw each other about three times a week, and (ii) she visited her paramour’s relatives in North Carolina with him.

The fact that adultery occurs after the separation of the parties does not lead inexorably to the conclusion that the adultery had nothing to do with the breakdown of the marriage. The commission of adultery during the separation period is the one act most likely to frustrate and prevent a reconciliation.

1989—Cutlip v. Cutlip, 8 Va. App. 618
In order to prove adultery, evidence need not be unequivocal, but must be clear and convincing such that it will produce in the mind of the trier of facts a firm belief or conviction as to the allegation. The trial court erred in finding husband guilty of adultery where evidence established only that, since wife’s condonation of his prior adultery, husband had spent long hours away from home, had seen his paramour again in a public place on one evening, and had lied to wife about spending the night with husband’s brother on that same evening. There was no evidence that husband was alone with the paramour on the night in question. While the evidence created a strong suspicion of guilt, it was not “clear and convincing.”

1983—Coe v. Coe, 225 Va. 616
The party alleging adultery as grounds for divorce has the burden of proving adultery by clear and convincing evidence, but does not have to prove adultery beyond all doubt. Although the allegation of adultery was denied by the defendant, the record contained no testimony by her or that of any witness which contradicted or denied the testimony given by the plaintiff and his detective regarding the alleged affair.

1936—Martin v. Martin, 166 Va. 109
Evidence of adultery should be clear. Suspicious circumstances are not enough, but confirmation beyond a reasonable doubt is not required. Necessarily evidence is usually circumstantial. Few offenses are less susceptible of positive proof. Common sense and common experience of men are the best guides.

Evidence of private detectives should be examined with utmost care. Uncorroborated it is seldom sufficient to sustain any judgment. The private detective is a “most dangerous instrument.”

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.

(C) Constructive Desertion

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 "intolerable" for constructive desertion purposes.

1988—Seehorn v. Seehorn, 7 Va. App. 375
Evidence of excessive consumption of alcohol alone does not, as a matter of law, render cohabitation unsafe by endangering life or health, and therefore, does not support a claim of constructive 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.

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.

1920—Ringgold v. Ringgold, 128 Va. 485
Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert in the mind of the offender. But, where a husband pushes the wife away from him, rejects her appeals for reconciliation and restitution of marital rights, tells her time and time again without reasonable excuse that she cannot return unless she subjects herself to an indefinite period of repent, the length of which is judged solely on the whim of the husband, husband's continued financial support and willingness to allow the wife to sleep in the same house will not be enough to save him from a charge of desertion.

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