Breschel v. Breschel, 79

• Decision Date: 28 August 1980
• Docket Number: No. 79,79
• Citation: 269 S.E.2d 363,221 Va. 208
• Parties: Lurlene Fuller BRESCHEL v. Robert Rody BRESCHEL. Record1172.
• Court: Virginia Supreme Court

Page 363

269 S.E.2d 363

221 Va. 208

Lurlene Fuller BRESCHEL v. Robert Rody BRESCHEL.

Record No. 79 1172.

Supreme Court of Virginia.

Aug. 28, 1980.

Joshua D. Rosenberg, Richmond, for appellant.

H. Franklin Minor, Richmond, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

I'ANSON, Chief Justice.

In this appeal, we must determine whether a wife was free from legal fault in leaving her husband and consequently not guilty of desertion.

On December 14, 1978, Robert Rody Breschel filed a bill of complaint against his wife, Lurlene Fuller Breschel, seeking a divorce a vinculo matrimonii on the ground of willful desertion. The wife filed an answer denying the alleged desertion and a cross-bill seeking a divorce based upon Code § 20-91(9)(a), which allows a divorce to be granted where the parties have lived separate and apart for one year. Following a hearing, the chancellor concluded that the wife had deserted her husband and entered an order granting the husband a divorce on that basis and dismissing the wife's cross-bill, including her request for spousal support.

The parties were married in 1974. For approximately one year, two teenaged children by the wife's former marriage were the only children in the household. The husband subsequently obtained custody of a child born during his previous marriage and brought him into the household in 1975. This child, Henry, was seven years old at that time.

The wife testified that she left her husband on June 8, 1977, because of her deteriorating health and her husband's failure to assist her in maintaining the home and in safeguarding her health. She had suffered from multiple sclerosis for more than fifteen years prior to her marriage in 1974, but her condition had stabilized prior to and during the first year of the marriage. She perceived, however, a deterioration in her physical condition after Henry moved into the household. The wife testified that she "could not cope with" Henry because he refused to obey her and did not accept her as a member of the household. This testimony was supported by the testimony of her mother, who cited several instances of Henry's harassment of and lack of respect for his stepmother. In addition, the wife contended that it was physically impossible for her to maintain the large house in which the Breschels lived. Her daughter was somewhat helpful, but her husband did not provide significant assistance in maintaining the house. Although she asked him to hire someone to clean the house once a week, he was unwilling to do so.

In a de bene esse deposition introduced into evidence at the ore tenus hearing, Dr. Laurie E. Rennie, the wife's physician since 1968, provided information about multiple sclerosis in general and the wife's condition in particular. He noted that the physical condition of a patient with multiple sclerosis can deteriorate for many reasons, including emotional trauma and exhaustion. He concluded Mrs. Breschel was not physically able to perform household duties required in anything more than a three-room flat, considerably smaller than the house in which the Breschels lived. He noted that the wife's weight had recently fallen to a critically low level, she had fallen into a "marked depression," her left leg had become more numb, and her gait had been further impaired. He also testified that the deteriorating marital situation, including the problems with the husband's son, was "probably . . . the major factor" in the deterioration of the wife's physical condition. In addition, Dr. Rennie noted that he had been willing to meet with Mr. Breschel to discuss Mrs. Breschel's physical disability but that Mr. Breschel never came to talk with him.

Sarah McCowan, a social worker employed in a Family and Children's Services Clinic, testified that the wife came to the clinic because of her concerns about Henry, the husband's son. In Henry's meeting with McCowan, he indicated that he was misbehaving so that he would be returned to the custody of his mother and that he was doing everything he could to drive his stepmother out of the home. McCowan also testified that in her meetings with the husband, she suggested that Henry undergo counseling. The husband, however, indicated that since his child had been in therapy before and it had not been helpful, he was unwilling to have his child undergo counseling again. In subsequent meetings with the wife, McCowan noticed the deterioration in the wife's physical condition. When the wife concluded in these meetings that her only option was to leave the house, McCowan supported her decision because she believed the wife "was right on the verge of a complete breakdown."

The husband testified that McCowan informed him his wife "could not cope with a typical nine-year-old boy" and suggested Henry be sent to Henry's mother's home for the summer or come in for counseling. He also testified that his wife told him "if he (Henry) stayed there (the Breschel residence) for the summer . . . she was going to her mother's until her health got better." He refused, however, to send Henry away for the summer.

On appeal, the wife contends that she was justified in breaking off marital cohabitation because her...