Capps v. Capps

• Decision Date: 01 December 1975
• Docket Number: No. 750326,750326
• Citation: 216 Va. 382,219 S.E.2d 898
• Court: Virginia Supreme Court
• Parties: David CAPPS, Sr. v. Patricia Diane Seawell CAPPS. Record

Page 898

219 S.E.2d 898

216 Va. 382

David CAPPS, Sr. v. Patricia Diane Seawell CAPPS.

Record No. 750326.

Supreme Court of Virginia.

Dec. 1, 1975.

Howard I. Legum, Norfolk (Fine, Fine, Legum & Fine, Norfolk, on brief), for appellant.

Tonita M. Warren, Newport News, on brief, for appellee.

Case submitted on brief for appellee.

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

PER CURIAM.

On December 5, 1973, David Capps, Sr., filed a bill of complaint against his wife, Patricia Diane Seawell Capps, seeking a divorce a Mensa et thoro, to be later merged into an absolute divorce, on the ground that she willfully deserted him on October 23, 1973. The bill of complaint was subsequently amended to include allegations of adultery. The wife filed an answer and cross-bill, in which she prayed for a divorce a Mensa et thoro based on a single act of physical cruelty which occurred on October 23, 1973. The wife further prayed for custody of the parties' two children, together with alimony and support.

Evidence was taken by depositions, and the chancellor entered his decree on December 4, 1974, granting the wife a divorce A vinculo on the ground of cruelty and awarding her custody of the children and an allowance for their support. The matter of alimony for the wife was reserved.

The only questions properly presented on this appeal are whether the chancellor erred in awarding the wife a divorce on the ground of the physical cruelty alleged in her cross-bill and in denying the husband a divorce on the ground of desertion.

The parties were married on October 9, 1969. One child was born to them, and the husband adopted the wife's daughter by a former marriage. Prior to the marriage the husband had been seriously wounded while serving in the armed forces in Vietnam and, as a result, his left arm is paralyzed, he is forced to wear a leg brace for support, and he has a plate in his head.

The husband testified that his wife willfully deserted him on October 23, 1973. He admitted that he argued with her on the date of the alleged desertion and that, when she remarked that he 'wasn't half the man Gary was,' he became angry and struck her one time. He testified, however, that he immediately attempted to apologize to his wife, but was rebuffed. She then left their home, taking the two children with her, and they have not lived together as husband and wife since the date of the desertion. The husband admitted that there had been numerous separations and arguments in the past, but denied that he had ever been cruel to his wife.

The husband's father testified that the wife left his son on October 23, 1973, and that the parties have not lived together as husband and wife since that date.

The wife testified that on October 23, 1973, she had been physically abused by her husband. On that occasion, she said that an argument arose because he refused help from Child Protective Services to save their marriage. During the argument her husband struck her and choked her 'in the bend of his arm.' She testified that after she broke free from his hold, he said, 'You and your bastard get out of here.' She stated that immediately thereafter she left the home, taking with her the two children.

The wife's mother testified that on the evening of October 23, 1973, her daughter came to her home 'hurting' and 'crying.' She noticed a 'big knot' behind her daughter's ear, and she drove her to a hospital for x-rays.

The rule is firmly established in Virginia that a divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard Ore tenus, but that such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence. Hoback v. Hoback, 208 Va. 432, 435, 158 S.E.2d 113, 116 (1967); Canavos v. Canavos, 200 Va. 861, 866--67, 108 S.E.2d 359, 363 (1959). Hence, our inquiry is whether there is such competent and credible evidence to support the chancellor's decree granting the wife a divorce on the ground of physical cruelty.

In her cross-bill and proof, the wife relied on a single instance of physical abuse by her husband to support her claim of cruelty. Her testimony tended to show that during the October 23rd argument her husband struck and choked her, and ordered her to leave their home. There was no corroboration of the wife's testimony that her husband told her to 'get out.' Code § 20--99. While her testimony of physical injury is sufficiently corroborated by her mother's observation of a 'big knot' on her head following the incident, Graves v. Graves, 193 Va. 659, 661--62, 70 S.E.2d 339, 340--41 (1952), and Sollie v. Sollie, 202 Va. 855, 861, 120 S.E.2d 281, 285 (1961), we hold that this one instance of physical cruelty is insufficient to establish a ground for divorce.

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