Collier v. Collier, 0640-85
| Decision Date | 01 April 1986 |
| Docket Number | No. 0640-85,0640-85 |
| Parties | Terry Joe COLLIER v. Rosalie Bassett COLLIER. Record |
| Court | Virginia Court of Appeals |
Henry A. Whitehurst, Christiansburg, for appellant.
James L. Tucker, Pulaski, for appellee.
Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.
This case involves an appeal from a divorce decree and an award of a lump sum and periodic spousal support. The issues raised on appeal are: (1) whether the trial court erred in granting a divorce to the wife based on the husband's desertion; and (2) whether the trial court erred in its award of a lump sum and periodic support to the wife.
Rosalie and Terry Collier were married on March 18, 1980. This was the first marriage for Rosalie and the third marriage for Terry. No children were born to the marriage. The parties separated on June 1, 1983, and did not resume cohabitation. Rosalie filed her bill of complaint on June 24, 1983, seeking a divorce on the grounds of desertion and an award of spousal support. The final divorce decree was entered on May 6, 1985, based on the depositions of the parties and one other witness.
When Terry left the marital home on June 1, 1983, he left a note which was introduced into the evidence considered by the chancellor. While this note is less than poetic and quite complimentary to Rosalie, it established quite clearly Terry's intent to desert the marriage without legal justification. Some quotes from this note make that patently clear;
By the time you read this, I'll be gone ... Forgive me if you can but what I'm doing I had to do.
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After three years of existing I have to grow.
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Rosie, you have been a good wife, a wife a lot of men dream of having.
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I have never been able to see you hurt and I know if I had talked to you I could not have decided to leave.
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God bless you Rosie, I did love you. Rebuild your life, be happy, take care of yourself....
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I have moved far from Roanoke and Pulaski.
When called upon to explain the meaning of his note, Terry testified that the fault in the marriage was "50-50" based apparently on his position that Rosalie would not go places with him such as company Christmas parties. He summarized by stating, "I just got tired of going everywhere by myself."
"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 such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence." Capps v. Capps, 216 Va. 382, 384, 219 S.E.2d 898, 899 (1975); Rexrode v. Rexrode, 1 Va.App. ---, 339 S.E.2d 544 (1986). It is also well settled that a party is guilty of desertion when he breaks off matrimonial cohabitation with an intent to desert. Breschel v. Breschel, 221 Va. 208, 211, 269 S.E.2d 363, 365 (1980).
Code § 20-99(2) provides that no divorce shall be granted on the uncorroborated testimony of the parties or either of them. The main object of the provision of the statute requiring corroboration is to prevent collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight. Graves v. Graves, 193 Va. 659, 662, 70 S.E.2d 339, 340 (1952).
In the present case it is undisputed that Terry moved from the marital home on June 1, 1983. The note he left for Rosalie, while perhaps attempting to soothe her feelings, was a clear declaration of his intent to desert. One can draw no other conclusion from the physical act of moving from the marital home and the terms of the note left for Rosalie to read when she returned from work. Rosalie's sister, the remaining witness, corroborated these essential facts. She lived nearby and testified about Terry's leaving the marital home and about the circumstances under which Rosalie had received Terry's note. Based on these facts, we find no error in the chancellor's award of an absolute divorce to the wife on the grounds of desertion by the husband.
We turn now to a review of the chancellor's award of spousal support. Prior to the marriage Rosalie was employed at a local apparel company and was self supporting. During and after the marriage she was employed at a different company three weeks a month...
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