Virginia Family Law Appeals

Noce v. Noce: Post-separation mortgage payments and STD as adultery proof

A trial judge refused to give a husband credit for his post-separation payments on the second mortgage on the former marital home, and the Court of Appeals affirmed, in Noce v. Noce, unpublished, 20 VLW 1530 (4/11/06).  The reasons given were (a) that the husband never showed that what he had used after separation to discharge this mortgage liability were not marital funds, (b) that he had used the property exclusively himself after separation, and (c) that his records for the payments were inadequate.  As to grounds, the Court of Appeals also affirmed the trial court’s judgment that the man’s adultery proof against his wife was insufficient.  It was this: that after he discovered he had genital herpes, and confronted his wife, she said that she “didn’t know he had it,” and husband inferred that the “he” referred to was her boy friend.  His only other evidence was proof that after separation the wife had met another man in her apartment more than once.  This, the trial court said, does not rise above the level of mere suspicion and conjecture.

Martin v. Ziherl: Va. court decriminalizes fornication

Case summary by John Crouch

CRIMINAL LAW — CONSTITUTIONAL LAW —  FORNICATION AND POSSIBLY ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S. Supreme Court decriminalizing sodomy.  607 S.E.2d 367 (1/14/05, 31 FLR 1137).  The ruling did not come in a criminal prosecution, so the state was not involved.  This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the plaintiff could not recover because she had been engaged in the crime of fornication at the time the injury occurred, and in fact the injury was caused by her commission of that crime.

SEPARATION AGREEMENTS – CONTRACTUAL ALIMONY – ADULTERY CUTOFF CLAUSE – NEED TO PLEAD ADULTERY AS A DIVORCE GROUND.

Hall v. Hall, unpublished, 20 VLW 587 (10/11/05).
A couple’s separation agreement provided for alimony which would be precluded or terminated if the recipient wife committed adultery. The trial judge was way off base and abused his discretion, the Court of Appeals held, by ruling that the husband could not invoke the agreement’s defense against alimony in the divorce case without having filed for divorce himself on adultery grounds. Nothing in the agreement says that, and nothing in §20-107.1 or any other statute says that, the Court of Appeals observed.

ADULTERY -- PENSIONS -- MILITARY -- MALPRACTICE TRAP.

Gamer v. Gamer, ___ Va. App. ___, 429 S.E.2d 618 (1993), seems to improve on such cases as Aster v. Gross, and Barnes v. Barnes by holding that if adultery had no proved economic impact, the adultery did not take place.  Moreover, it shows quite a number of things from the applicable statute, most of which would hardly occur to anyone as proof elements, that your expert must conclude and must testify to if your client is to qualify for any pension award at all.  Some of these are present value, present value of one pension compared to present value of the other, separate property and marital property contributions to a buy-in arrangement, exactly how each "contribution" mathematically enhanced the present value, etc. 

ADULTERY — LEVEL OF PROOF — FIVE-YEAR RULE — FIFTH AMENDMENT.

An unpublished opinion from the Court of Appeals serves as a reminder of the statutory provision that an adultery, to be a ground of divorce, has to have happened within the past five years.  The wife had admitted adulteries in 1992 or '93, and when the boy friend was asked whether he had had intercourse with the wife after March 26 of 1999, he took the Fifth Amendment.  That, and the fact that he had admitted to the husband's counsel that he had had sex with the wife, but without admitting any particular date, do not add up to the required proof of current adultery.  Nor does a photograph that he took of the wife in her underwear in 1994 make any difference, so the trial court's award of an adultery divorce and its denial of alimony are reversed.  Fickett v. Fickett, 16 VLW 1100 (2/26/02).

ADULTERY PROOF -- FIFTH AMENDMENT -- ALIMONY -- MANIFEST INJUSTICE.

Helbert v. Helbert,  13 VLW 398 (8/25/98).

ADULTERY – AMENDMENT OF GROUNDS – POST-SEPARATION.

The Court of Appeals has said a few times lately that post-separation adultery can be considered a minor thing which a judge may disregard, but it is not about to say that a judge who considers it significant will be reversed.  Thus the ruling of a Loudoun County judge who allowed a husband to file a supplemental Cross-Bill alleging adultery that occurred after the wife's divorce filing and more than a year after the parties separated was affirmed in the unpublished case of Block v. Block, 18 VLW 886 (1/13/04).  The trial court granted the husband his adultery divorce on the Cross-Bill and that was affirmed.

ALIMONY -- APPEALS -- EQUITABLE DISTRIBUTION -- MARITAL AND SEPARATE.

Some of the logical fallout of the Reid v. Reid principle is seen in the Court of Appeals holding in Hurt v. Hurt, ___ Va. App. ___, 433 S.E. 2d 493, 8 VLW 232 (7/2793). The Reid rule means that if a court ordered restitution of certain paid pendente lite alimony because it later found desertion, and then the Virginia Supreme Court reverses the desertion finding, that repaid money must be repaid again to the wife. In the property-division area, Hurt seems to stand for the principle that if a husband alleges that he threw everything into one bank account, but it turns out he had a complex ledger system separating the money into different theoretical accounts for his earnings and his separate-property earnings, and the judge believes him, that ruling will stand.

Cases on adultery & alimony: Porter, Wright and Williams

ALIMONY -- ADULTERY -- MALPRACTICE TRAP: In 1988 the General Assembly refused to repeal the traditional prohibition on a court’s awarding alimony to a party against whom adultery is proved--although they did, after intense debate, agree to allow an adulterer alimony to prevent a manifest injustice in the appropriate circumstances. The legislators reckoned without the Virginia Court of Appeals, however, which dislikes the prohibition. In what must have been a very hard case, the court explains (in an opinion that will put quite a premium on early and aggressive litigation of adultery cases) that a judge can easily award spousal support to an adulterous wife, without bothering with any manifest injustice finding. The judge can simply award the divorce on grounds of statutory separation instead, despite the adultery proof, and then there is no bar to awarding of alimony, fees and costs to the guilty spouse. Williams v. Williams, ______ Va App ______ 415 SE2d 252 (1992).

ALIMONY – ADULTERY – MANIFEST INJUSTICE, ETC. In the appeal of a case with an unusual and somewhat confusing fact situation, the Court of Appeals affirmed a Loudoun judge's determination that a wife with a minimal income should get alimony out of the husband's $41,000 yearly income. With her various welfare benefits, and $750 per month alimony, her income would be brought up to $9,000 per year. The husband had alleged adultery, and the Court of Appeals ruling is that assuming adultery was proved (post-separation adultery being apparently what the husband had sought to prove), there was plenty of evidence to support the trial court's ruling that it would be a manifest injustice under §20-107.1(B) to deny spousal support. Evidence showed the wife having severe physical and mental "problems" from the beginning of the marriage to the present, and being unable to work and truly desperate. Evidence adduced by husband from a nurse practitioner that the wife was capable of doing some part-time work was not enough to offset testimony of the wife's physician that she was physically and mentally unable to work at all, given the side effects of her medications. As for the relative degrees of fault, this was a case in which apparently both sides had admitted heavy drinking, fighting with one another, and "relationships" outside the marriage, but the trial court felt that the husband's sins were more detrimental on balance than the wife's. Husband failed with an argument that pre-divorce non-marital cohabitation should be as fatal to alimony as adultery is. Without really explaining how such cohabitation can fail to be adultery, within the statutory definitions of both those things, the Court of Appeals rejects this proposition. Clearly, §20-109 now speaks of cohabitation as a post-marital thing which may in some circumstances serve to terminate or modify alimony that is already ordered and being received. The husband's equation of that with the alimony issue being decided in a divorce is rejected. The court also affirms the judge's $1500 fee award, supported by proof of the $15,000 in attorneys fees the wife had incurred. Wright v. Wright, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 68 (6/18/02).

ALIMONY — ADULTERY — "MANIFEST INJUSTICE" — RELATIVE DEGREES OF FAULT. Whatever the institution of marriage is today in the eyes of the court system, it — or at least the sexual fidelity aspect of it — is a matter of such trifling importance that it can be outweighed by almost anything, or nothing, depending on how you call 'em. A wife wanted alimony and the husband argued that her post-separation adultery was a bar under Code §20-107.1. It's not, the Court of Appeals explained in Porter v. Porter, unpublished, 19 VLW 286 (7/13/04). After all, there are relative degrees of fault here, and compared to the wife's adultery the husband is clearly the one who destroyed the marriage because (A) he told his wife in the year 2000 that he could live alone, and (B) in late 1999, he had begun to visit attorneys and (C) have one prepare legal documents with the intent to limit her claims on his business and assets. After that, (D) he told wife he wanted to live alone (the evidence showed, according to the Court of Appeals), and (E) in February 2001 he gave the wife a draft separation agreement for her to consider. The trial court in refusing to deny alimony (and refusing to grant the divorce on adultery grounds) properly considered and weighed the respective degrees of fault and properly found manifest injustice.

ADULTERY — PROOF.

Well, we can add one more set of circumstances to what does not constitute the clear, positive and convincing proof of adultery that is needed in Virginia. The Court of Appeals reiterates that because adultery is a crime, “the general and widely recognized presumption of innocence” must apply. A husband's testimony (with no third-party corroboration) that raised only "strong suspicions" of adultery in his wife's conduct was not enough. Husband produced a photograph of his wife at the alleged paramour’s house wearing nothing but a sweater, and removing her underwear. Wife admitted she had used the paramour’s credit cars, signed his name, and picked up his laundry. She testified that she had not had sexual relations with anyone other than husband from before the parties' separation until the time of the commissioner's hearing, and then recanted her denial and invoked the Fifth Amendment. What Husband testified to was wife kissing another man, phone records showing wife's many calls to other man, his discovery of the photograph in the wife's car, and the car chase that took place when he caught the pair together very late one night. The Court in this case was reversing a Circuit Court’s order that had overruled a Commissioner’s report, denied a reservation of alimony jurisdiction and given wife only one-third of the marital share of retirement because of the adultery. The appeals court noted that the Commissioner, unlike the trial court, actually observed the wife’s testimony and was uniquely able to judge her credibility. Romero v. Colbow, ___ Va. App. ___, ___ S.E.2d ___, 12 VLW 1336 (4/7/98).