Opinion
Record No. 1179-93-4
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY, Benjamin N. A. Kendrick, Judge
Affirmed.
John D. Hemenway; John T. Phillips, II, for appellant.
Fitzhugh Lee Godwin, Jr., for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Margaret Tsao Fu, wife, appeals from the trial court's equitable distribution and entry of a final decree of divorce from Shen Fu, husband, on grounds of adultery. On appeal, she argues (1) that the commissioner's denial of her motion for a continuance and the manner in which he conducted the hearing and the circuit court's denial of her motion for a de novo hearing violated her due process rights; (2) that the commissioner erred by refusing to hear testimony on the issue of recrimination; (3) that the circuit court erred in finding that the parties resumed marital cohabitation where the uncontradicted evidence shows that husband failed to return certain items of marital property and failed to resume performance of marital duties; and (4) that the evidence was insufficient to support a finding that wife committed adultery. For the reasons that follow, we affirm the judgment of the trial judge.
I.
We conclude first that neither the commissioner nor the circuit court violated wife's due process rights in the manner alleged. The record shows clearly that wife had notice several weeks in advance of the commissioner's hearing and an opportunity to be heard at the hearing, both directly and through an interpreter. See Lockhart v. Baxter, 12 Va. App. 600, 604, 405 S.E.2d 434, 437 (1991). The substance of wife's assignments of error relate to the commissioner's denial of her motion for a continuance. Assuming without deciding that the commissioner had the authority under both the law and the decree of reference to grant a continuance, his decision whether to do so is governed by an abuse of discretion standard-the same standard applied to a trial judge's decision on such a motion. See Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986) (must show abuse of discretion and prejudice). Although the commissioner repeatedly stated his belief that he had no such authority, he said that even if he did, he would have denied wife's motion on the ground that she had adequate notice of the hearing and adequate time in which to get a new lawyer. In fact, the record establishes that wife's most recent attorney had been allowed to withdraw more than five weeks prior to the commissioner's hearing and wife had notice of the hearing at least four weeks prior to the hearing. Under these circumstances, we cannot conclude that the commissioner abused his discretion.
Furthermore, we reject wife's claim of prejudice resulting from a language barrier. The commissioner "noted that at a prior hearing before the Court, [wife] testified in English and made no objection to being questioned in English[, whereas] [a]t the Commissioner's hearing she claimed she could not understand English and insisted on being questioned in Chinese and testifying in Chinese." We also note that the record shows wife had two different interpreters in that proceeding. Based on these and other observations, the commissioner found that wife acted with an intent to obstruct the hearing. We cannot conclude that he erred in so finding.
We also reject wife's contention that the trial court abused its discretion in denying wife's request for a de novo hearing before a commissioner or the circuit court. There is nothing improper about referring "questions regarding the circumstances and factors which contributed to the dissolution of the marriage to a commissioner in chancery," Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d 866, 869 (1990); see Code Sections 8.01-607 and 8.01-615, as long as the trial court fulfills its "duty to make factual determinations" by either "affirm[ing] or reject[ing] the commissioner's report, in whole or in part, according to the view the court entertains of the law and the evidence." Kaufman v. Kaufman, 7 Va. App. 488, 501-02, 375 S.E.2d 374, 381 (1988) (citing Code Sec. 8.01-610). As above, the essence of wife's claim is that her motion for a continuance was improperly denied. This claim is without merit.
II. and III.
The essence of wife's assignment of error concerning recrimination is that the trial court should have allowed her to amend her complaint to allege desertion from May 11, 1990, rather than December 1, 1990, and to present evidence on this issue. The decision whether to permit a party to amend his or her pleadings is discretionary and is reviewable only for an abuse of that discretion. Aster v. Gross, 7 Va. App. 1, 6, 371 S.E.2d 833, 836-37 (1988) (court did not abuse discretion by denying wife's motion to amend to allege husband's marital misconduct where that evidence would not have affected the determination of the monetary award). The trial court did not abuse its discretion here, for the uncontradicted evidence showed that, following husband's departure on May 11, the parties agreed to a trial reconciliation and that husband returned to the marital home on June 15, 1990. Furthermore, the evidence was sufficient to support the commissioner's implicit finding that the parties resumed cohabitation following husband's departure of May 11. Neither the parties' failure to resume sexual relations nor husband's failure to return all items of marital property which he had taken with him on May 11 is dispositive of the issues of desertion and resumption of cohabitation. Although husband's desertion on May 11 might initially have provided wife with a fault-ground for divorce, she condoned the desertion by resuming cohabitation with him on June 15. See McIlwain v. McIlwain, 215 Va. 633, 636, 212 S.E.2d 284, 286 (1975); Peter N. Swisher, Lawrence D. Diehl, and James R. Cottrell, Virginia Family Law Sec. 8-4(c) n. 15 (1991) ("[V]oluntarily residing with the guilty spouse after knowledge of the marital offense would conclusively establish the defense of condonation").
IV.
Lastly, we hold that the evidence was sufficient to support the trial court's finding that wife committed adultery with Charles Wang on the evening of December 10, 1990. The facts in this case are very much like those in Coe v. Coe, 225 Va. 616, 620-23, 303 S.E.2d 923, 926-27 (1983), in which the Court upheld the trial court's finding as based on credible evidence. Although "a judgment cannot be based on speculation, conjecture, surmise or suspicion, adultery does not have to be proven beyond all doubt. The evidence must be clear and convincing, based upon proven facts and reasonable inference drawn from these facts." Id. at 622, 303 S.E.2d at 927. In Coe, husband presented the testimony of a private detective, who twice observed wife's car parked in front of another man's apartment overnight, saw the parties exit the apartment at separate times, and confirmed that no one else had been in the apartment. Id. at 621-22, 303 S.E.2d at 926-27. Although wife denied the allegations, the record contains no testimony by her, or that of any witness, which contradicts or denies the testimony given by [husband] and the detective as to the alleged adultery. [Wife] makes no attempt to explain her relationship with [the man], or her presence in his unlighted apartment on the two occasions testified to by the detective. There is no denial in the record that the photographs taken of her, [the other man], and their vehicles were taken under the circumstances and at the times related by [the detective].
Id. at 622, 303 S.E.2d at 927. The evidence in this case is even stronger than that in Coe. Here, wife and Wang arrived at the Fu residence together in wife's car, embraced in the garage and again in the house. A few hours later, a shirtless Wang closed the curtains to the master bedroom, and the detective observed wife's shadow moving around behind those curtains before the lights went out. The next morning, wife and Wang left together in wife's car. Although wife's evasive driving made it impossible for the detective to keep up with her, he subsequently spotted the couple in front of Wang's apartment and photographed Wang getting out of wife's car. Wife admitted that Wang had been a house guest of her husband's periodically in the past, but she denied the aforementioned events without explanation and attempted to call into question the detective's credibility. As in Coe, "we cannot say that the decision of the trial court is not based upon credible evidence, proven facts, and reasonable inferences drawn therefrom." Id. at 623, 303 S.E.2d at 927.
The judgment of the trial judge is affirmed.
Affirmed.