Derby v. Derby

• Decision Date: 07 March 1989
• Docket Number: No. 1208-87-1,1208-87-1
• Citation: 378 S.E.2d 74,8 Va.App. 19
• Parties: Sandra A. DERBY v. George E. DERBY, Jr. Record
• Court: Virginia Court of Appeals

Page 74

378 S.E.2d 74

8 Va.App. 19

Sandra A. DERBY v. George E. DERBY, Jr.

Record No. 1208-87-1.

Court of Appeals of Virginia.

March 7, 1989.

Alan S. Mirman, Norfolk, for appellant.

Anthony L. Montagna, Jr., for appellee.

Present: BENTON, COLEMAN and MOON, JJ.

COLEMAN, Judge.

In this divorce case, we determine whether the evidence presented to the trial court sufficed to set aside a written property settlement agreement on the grounds of unconscionability and constructive fraud or duress. Sandra Derby argues that the trial court erred in holding the parties' separation agreement invalid since George Derby did not prove fraud, duress, or undue influence. She also argues that George Derby did not prove adultery by clear and convincing evidence and that the judge therefore erred in awarding Mr. Derby a divorce.

George and Sandra Derby were married April 19, 1961. In twenty-two years of marriage they had two children. Mrs. Derby filed for divorce on October 6, 1983, alleging cruelty. On October 14, 1985, Mr. Derby filed a cross-bill alleging adultery by the wife on several specified occasions. She amended the complaint to allege a one-year separation on June 26, 1984.

On Monday, July 9, 1984, at 8:00 a.m. Mrs. Derby went to the beauty shop owned by the couple to contact her estranged husband. She took with her a copy of a property settlement agreement drafted by her lawyer which provided for an equal division of most of their property. Both parties had employed attorneys. Although the separation agreement had been delivered to Mr. Derby's attorney the prior Thursday, Mr. Derby had not conferred with his attorney concerning its contents. Mrs. Derby called her husband into the parking lot where, after briefly discussing the agreement, the paragraph providing for equal division of the property was stricken and Mrs. Derby wrote in, "Husband agrees to relinquish his portion of property located at 1824 E. Ocean View Ave., and to sign ownership of property over to his wife at earliest possible date." Both then signed the agreement in the parking lot on the hood of a car. Mrs. Derby secured a deed conveying the Ocean View Avenue property to her, which Mr. Derby signed before a notary public at 4 p.m. that afternoon. Mr. Derby did not consult his attorney concerning the agreement or deed prior to their execution.

The agreement and deed conveyed to Mrs. Derby the entire value of essentially all of the valuable real estate which the parties owned. Mr. Derby claimed that he signed the agreement because he believed that Mrs. Derby would return to the family home if he did so. Mrs. Derby denied that she told her husband she would return to him if he signed it. She testified that Mr. Derby did state before signing the modified agreement, "He said, I know, Sandra, I hear you, but you don't understand what God is doing."

In regard to the evidence of adultery, a private investigator testified at the commissioner's hearing that on at least five occasions in 1985 he had followed Mrs. Derby to a house where she and John Singletary spent the entire night. He also testified that he had observed them in public engaged in affectionate behavior, such as one massaging the other's neck, entwining arms, and patting buttocks. The commissioner in chancery recommended that a divorce be granted to George Derby on the ground of Mrs. Derby's adultery. He further recommended that the stipulation agreement be found valid because there was insufficient evidence of fraud or undue influence to set it aside. The trial judge heard the exceptions and ordered the divorce be granted on the ground of Mrs. Derby's adultery but ruled that the stipulation agreement was unconscionable and was obtained by constructive fraud or duress and thus was not valid.

I. Adultery

We first consider the adultery issues. Sandra Derby argues that the evidence offered to prove adultery was not clear and convincing, that even if adultery was proved it was immaterial because it occurred after the breakdown of the marriage, and that recrimination would bar a divorce on the ground of adultery. Addressing the arguments in the order presented, we first consider the sufficiency of the evidence.

To prove adultery, the evidence of extramarital sexual intercourse must be clear and convincing. "While a court's judgment cannot be based upon speculation, conjecture, surmise or suspicion, adultery does not have to be proven beyond all doubt." Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983). We conclude there is sufficient credible evidence to support the finding of adultery.

Although the testimony of a hired private detective should be carefully scrutinized because of the potential for bias inherent in this type employment relationship, a detective's testimony nevertheless may constitute credible evidence. The questions of weight and believability are for the factfinder, who in this case found the detective's testimony credible. His testimony was not refuted nor was it inherently incredible. The evidence, viewed in the light most favorable to the appellee, showed that Mrs. Derby and Mr. Singletary spent several nights in the same house together and that they engaged in affectionate behavior in public. Mrs. Derby acknowledged that she and Mr. Singletary were close friends who saw each other about three times a week and that she visited his relatives in North Carolina with him. The evidence was credible and sufficient to support the conclusion of adultery, and we affirm that finding. See Thompson v. Thompson, 6 Va.App. 277, 367 S.E.2d 747 (1988).

Appellant argues that even if adultery were proven, it was post-separation adultery and, therefore, since it did not contribute to the breakdown of the marriage, it could not provide a ground for divorce. The fact that the adultery occurred after the parties separated 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 that period [of separation] by either party to a marriage in trouble is the one act most likely to frustrate and prevent a reconciliation." Coe v. Coe, 225 Va. 616, 620, 303 S.E.2d 923, 925-26 (1983); see also Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969). Moreover, the ground for divorce need not have caused the deterioration of the marriage in order to award a divorce on such basis. The ground may be only the legal requirement which the legislature has recognized must exist before public policy will permit courts to dissolve a failed marriage. The commissioner and the trial court determined that Mrs. Derby was guilty of adultery and that, as a consequence, Mr. Derby should be awarded a divorce. Because the statute authorizes a divorce on the ground of adultery, there was no error in that determination.

Appellant's argument that the divorce grounded on adultery is barred by recrimination because the one year separation constituted ground for divorce under Code § 20-91(9) has no merit. The doctrine of recrimination provides that a party is barred from obtaining a divorce if his or her own conduct constituted sufficient grounds for divorce. Venable v. Venable, 2 Va.App. 178, 184, 342 S.E.2d 646, 650 (1986). The widespread acceptance of granting divorce without fault has led to considerable criticism of recrimination as archaic. 2 H. Clark, The Law of Domestic Relations in the United States, § 14.13 (1987). Inherent in the doctrine is the notion of fault. Because a divorce based on one year's separation involves no fault by either party and indeed, must be mutually consensual, the doctrine of recrimination has no applicability in this case. Code § 20-91(9) specifically provides that fault grounds shall not be a ground for the defense of recrimination to a divorce based upon one-year separation. Conversely separation is not "conduct" which will bar a faultless party from obtaining a divorce on the fault of the other party. The trial court did not err in rejecting the recrimination defense and in granting a divorce to George Derby based on adultery.

II. Validity of Separation Agreement

Next, we consider whether the court erred in finding the separation agreement invalid because it was unconscionable and obtained by constructive fraud or duress. "[M]arital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain." Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980) (citation omitted).

Code § 20-109.1 provides that "[a]ny court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, any valid agreement between the parties." (emphasis added). While this section grants a trial court discretion in dealing with agreements, that discretion extends only to "valid agreements." Therefore, before a court may exercise its discretion, it must determine the threshold issue of validity. In Forrest v. Forrest, 3 Va.App. 236, 349 S.E.2d 157 (1986), we held that a trial court is not required to conduct a separate inquiry into the validity of an agreement which appears valid on its face and whose validity is not challenged by the parties. The finding by the court that the parties reached an agreement necessarily includes a determination that the agreement was valid. Id. at 240, 349 S.E.2d at 160.

A trial judge may decline to pass on the validity of the separation agreement and neither affirm, ratify, or incorporate it into the divorce decree. However, a court which does address the issue of validity of the agreement and declares it invalid acts within its jurisdiction. Since the challenge to the validity of the agreement was raised in the divorce proceeding and the court did adjudicate the issue this Court has jurisdiction under Code § 17-116.05(3) to review the...