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Johnson v. Johnson

Court of Appeals of Virginia. Norfolk
Jun 22, 1993
Record No. 1081-92-1 (Va. Ct. App. Jun. 22, 1993)

Opinion

Record No. 1081-92-1

June 22, 1993

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ALFRED W. WHITEHURST, JUDGE.

James T. Baker (Anthony L. Montagna, Jr., on brief), for appellant.

Howard M. Miller (St. Clair, Miller Marx, P.C., on brief), for appellee.

Present: Judges Baker, Barrow and Benton.

Argued at Norfolk, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Melvin Johnson (husband) appeals from a final decree entered in the Circuit Court of the City of Virginia Beach (trial court) that granted Sarah F. Johnson (wife) a divorce on the ground of cruelty. The decree also ordered husband to pay spousal support to wife.

The parties married on August 11, 1984 and separated on October 28, 1988. No children were born of the marriage. Wife initiated a divorce proceeding asking that she be awarded a divorce due to husband's cruel conduct. Husband filed a cross-bill denying wife's allegation of cruelty and asked that he be granted a divorce on the grounds of cruelty and desertion. Subsequently, husband filed an amended cross-bill asserting that wife was guilty of adultery.

All issues were referred to a commissioner in chancery, who heard evidence and filed a report of his findings and recommendations to the trial court. On May 7, 1992, the trial court entered a decree of divorce from which this appeal emanates.

Husband asserts that the trial court erred in: (1) finding that he constructively deserted wife; (2) accepting the testimony of a convicted felon; (3) accepting the testimony of wife, who had been convicted of a crime involving moral turpitude; (4) failing to find that wife did not corroborate alleged acts of cruelty; (5) failing to find that wife deserted him; (6) failing to find that wife was guilty of adultery; (7) awarding spousal support to wife; and (8) setting the amount of spousal support due wife.

We will not consider issues two and three because the record fails to disclose that they were raised in the trial court.See Westbrook v. Westbrook, 5 Va. App. 446, 451, 364 S.E.2d 523, 526 (1988); Rule 5A:18.

The remaining issues involve the sufficiency of the evidence to support the trial court's findings. Exceptions were taken by husband to the commissioner's report. The trial court overruled all exceptions and entered a decree in accord with the commissioner's recommendations.

The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by competent, substantial and credible evidence.Hoback v. Hoback, 208 Va. 432, 435-36, 158 S.E.2d 113, 116 (1967); Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986). Where sufficiency of the evidence is the basis for alleged trial court error, we view the evidence in the light most favorable to the party who prevailed below. Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). If credible evidence supports the judgment, the trial court's decision will not be reversed on appeal unless plainly wrong or without evidence to support it. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Finding no error, we affirm the judgment of the trial court.

Desertion as a ground for divorce does not depend on who actually left the marital residence. Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986). "It means desertion of the marital relationship." Id. "Desertion may be 'constructive,' for cruelty by one party, which results in the other party's enforced separation, is tantamount to desertion by the party performing the cruel acts." Id. (citations omitted).

The trial court reviewed the evidence presented by each party and found credible evidence to support a finding of cruelty by husband that was tantamount to desertion of the marital relationship. We cannot say that the trial court's finding is plainly wrong or without evidence to support it. Wife testified that husband continually sexually abused her, using sexual devices that caused her great pain. Her pleas to discontinue the practice were ignored, resulting in wife having to undergo psychological counseling. Evidence of the presence of such devices was corroborated by wife's sister and a son, along with a magazine addressed to husband offering similar devices for sale. The purpose of requiring corroboration is to prevent collusion by the parties in obtaining a divorce. Where it is apparent that there is no collusion, as in this case, the corroboration needs to be only slight. Graves v. Graves, 193 Va. 659, 662, 70 S.E.2d 339, 340 (1952). We find evidence sufficient to corroborate wife's testimony and to support the trial court's finding that husband constructively deserted wife. We affirm the trial court's finding that wife's leaving the marital home was justified and that she was not guilty of desertion. See Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30 (1988); Brawand v. Brawand, 1 Va. App. 305, 310, 338 S.E.2d 651, 653 (1986).

Husband presented evidence that proved wife was observed in circumstances that provided an opportunity for the commission of adultery; however, the trial court found that husband's evidence of adultery was not clear and convincing, as required by existing case law. See Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983); Bacon v. Bacon, 3 Va. App. 484, 489, 351 S.E.2d 37, 40 (1986). Wife contradicted husband's witness and produced a witness who testified that husband had offered his witness $700 to testify that she had seen wife commit adultery. The trial court did not err in refusing to hold that husband was entitled to be granted a divorce on the ground of wife's adultery.

The record reveals that husband had a minimum monthly income of $1,275 and owns his house, mortgage free. Wife earns $3.80 per hour working part time. The record does not support husband's claim that spousal support should be denied.

In fixing the amount of [support], the [trial] court must look to the financial condition of the [party], her age, physical condition and ability to earn, and balance against these circumstances the financial ability of the [other] to pay, considering his income and his ability to earn.

Ray v. Ray, 4 Va. App. 509, 514, 358 S.E.2d 754, 756-57 (1987) (citations omitted). Balancing the need shown against the incomes and ability to earn, it is clear that the trial court complied with the provisions of Code § 20-107.1 and did not err in its award of spousal support.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.


Summaries of

Johnson v. Johnson

Court of Appeals of Virginia. Norfolk
Jun 22, 1993
Record No. 1081-92-1 (Va. Ct. App. Jun. 22, 1993)
Case details for

Johnson v. Johnson

Case Details

Full title:MELVIN JOHNSON v. SARAH F. JOHNSON

Court:Court of Appeals of Virginia. Norfolk

Date published: Jun 22, 1993

Citations

Record No. 1081-92-1 (Va. Ct. App. Jun. 22, 1993)