Delanoy v. Delanoy

• Court: Virginia Court of Appeals
• Writing for the Court: MEMORANDUM OPINION BY JUDGE RANDOLPH A. BEALES
• Decision Date: 30 December 2014
• Docket Number: Record No. 2457-13-2
• Citation: Delanoy v. Delanoy, Record No. 2457-13-2 (Va. App. Dec 30, 2014)
• Parties: CHARLES J. DELANOY v. ROBIN R. DELANOY

CHARLES J. DELANOY v. ROBIN R. DELANOY

Record No. 2457-13-2

COURT OF APPEALS OF VIRGINIA

DECEMBER 30, 2014

UNPUBLISHED

Present: Judges Beales, Chafin and Senior Judge Coleman

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE RANDOLPH A. BEALES

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Cheryl V. Higgins, Judge

Christopher J. Smith (Law Offices of Christopher J. Smith, PC, on briefs), for appellant.

David B. Franzen (Seth J. Ragosta; Lenhart Pettit PC, on brief), for appellee.

Charles J. DeLanoy (husband) appeals the circuit court's order granting Robin R. DeLanoy (wife) a divorce on the ground that the parties had lived separate and apart for more than one year. Husband raises nine assignments of error pertaining to the issues of post-separation adultery, equitable distribution, and spousal support. Wife, in her responsive brief, has raised eight assignments of cross-error pertaining to the issues of constructive desertion and equitable distribution. For the reasons explained below, we affirm in part, reverse in part, and remand the matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND¹

When, as here, a circuit court hears the evidence at an ore tenus hearing, "'its factual findings are entitled to great weight'" on appeal. Mayer v. Corso-Mayer, 62 Va. App. 713, 728, 753 S.E.2d 263, 270 (2014) (quoting Mullin v. Mullin, 45 Va. App. 289, 299-300, 610 S.E.2d 331, 336 (2005)). The circuit court "'ascertains a witness' credibility, determines the weight to be given to their testimony, and has discretion to accept or reject any of the witness' testimony.'" Layman v. Layman, 62 Va. App. 134, 137, 742 S.E.2d 890, 891 (2013) (quoting Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997)).

The case comes to this Court with a voluminous record of the circuit court proceedings. The parties have provided this Court with a fourteen-volume joint appendix that spans nearly 7,000 pages. "Therefore, for the sake of both brevity and clarity, we will discuss the facts pertinent to resolving the various issues in this case as they are relevant to the analysis of the respective issues on appeal. However, there are a few facts and procedural points to note initially by way of background." Fadness v. Fadness, 52 Va. App. 833, 839, 667 S.E.2d 857, 860 (2008).

Husband and wife married in 1992. In its December 14, 2012 letter opinion, the circuit court discussed the circumstances leading to the parties' separation, commenting that wife and husband seemed to agree that the marriage was generally harmonious until about 2003. The circuit court found that it was undisputed that the parties had agreed that wife "would stay home while thechildren were young² and take care of the family and the household and [husband] would be the one to go to work." The circuit court found that husband, a certified public accountant (CPA) with Klockner Pentaplast, supported the family financially during the marriage - whereas wife contributed mostly in non-monetary ways during the marriage. The circuit court found that the parties' contributions to the well-being of the family were essentially equal. Wife did return to school in 2005 to pursue a degree in nursing, and she was working full-time as a nurse at a correctional facility at the time of the parties' divorce trial. The circuit court noted husband's disagreement with wife's decision to attend James Madison University (an hour away from the marital home) to pursue the nursing degree,³ indicating that this disagreement was one of several circumstances that led to the breakdown of the parties' marriage. Husband argued in the circuit court that the parties had separated by May 2006. The circuit court found that the parties continued to attend counseling and attempted to resolve their differences after that date. The circuit court instead found that the parties had actually separated in August 2009, at which time both parties still resided in the marital home but in different bedrooms.

On October 15, 2010, wife filed a divorce complaint in the circuit court. Husband filed his answer on November 12, 2010. Both parties raised statutory fault grounds in their pleadings.⁴ The circuit court held a pendente lite hearing on March 5, 2011 and subsequently entered a pendente lite order on October 20, 2011. The parties' five-day divorce trial occurred in the circuit court from May 21, 2012 through May 24, 2012 and again on June 19, 2012.

On December 14, 2012, the circuit court issued its letter opinion in which it decided most of the issues that are pertinent to this appeal. In the letter opinion, the circuit court found that neither party had satisfied the burden of proving that the other party had committed a fault ground for divorce. The circuit court also classified and divided the parties' marital assets for equitable distribution purposes. In addition, the circuit court awarded wife a $300,000 lump sum spousal support award, directing husband to pay this award within sixty days.⁵

At hearings held on December 17, 2012 and February 19, 2013, the circuit court made further findings from the bench that confirmed many of the pertinent rulings from the letter opinion. The circuit court thereafter entered several additional orders - including a March 28, 2013 order granting husband possession of the marital residence on the condition that husband pay wife $110,572.36 (representing half of the marital equity in that residence). The circuit court then entered its order of divorce on July 17, 2013, and it entered its final order in this matter on December 6, 2013.

II. ANALYSIS

A. FAULT GROUNDS⁶

1. POST-SEPARATION ADULTERY (HUSBAND'S ASSIGNMENTS OF ERROR 1 AND 6)

In his first assignment of error, husband argues that the circuit court erred in its conclusion that the evidence failed to establish that wife committed post-separation adultery. See Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989) (explaining that the divorce fault ground of adultery can be established through a party's post-separation adultery). This issue also has a significant effect on husband's sixth assignment of error, in which he challenges the $300,000 lump sum spousal support award that was granted to wife. Given his claim that wife committed adultery, husband contends that wife should be barred from receiving any spousal support under Code § 20-107.1(B).⁷

"'One who alleges adultery has the burden of proving it by clear and convincing evidence.'" Hughes v. Hughes, 33 Va. App. 141, 146, 531 S.E.2d 645, 647 (2000) (quoting Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987)); see also Derby, 8 Va. App. at 24, 378 S.E.2d at 76 ("To prove adultery, the evidence of extramarital sexual intercourse must be clear andconvincing."). According to the Supreme Court's decision in Seemann, "clear and convincing" evidence is:

that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.

233 Va. at 293 n.1, 355 S.E.2d at 886 n.1; see also Dooley v. Dooley, 222 Va. 240, 246, 278 S.E.2d 865, 868 (1981) (explaining that "the judicial mind must be convinced" that adultery occurred in order for that fault ground to apply (internal quotation marks and citations omitted)); Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975) (explaining that the clear and convincing standard is satisfied when there is "clear, positive, and convincing" evidence of adultery).

On appeal, a circuit court's finding of whether adultery has been proven by clear and convincing evidence will not be disturbed unless that finding was plainly wrong or without evidence to support it. See Seemann, 233 Va. at 294, 355 S.E.2d at 887; see also School Board of Campbell County v. Beasley, 238 Va. 44, 51, 380 S.E.2d 884, 888 (1989) ("When a case is decided by a trial court sitting without a jury, the judgment below 'shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.'" (quoting Code § 8.01-680)). Under this very deferential standard of review, as the Supreme Court has stated, "The appellate court is not permitted to reweigh the evidence or to substitute its factual judgment for that of the circuit court." Beasley, 238 Va. at 51, 380 S.E.2d at 888; see also Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007).

Here, husband argues that the evidence proved that wife committed post-separation adultery with James Rouse, Michael Lipton, or both. On brief, husband focuses far more attention on the adultery allegation with respect to Lipton. While the evidence suggesting post-separation adulterywith Rouse is not particularly compelling,⁸ the issue of whether wife committed post-separation adultery with Lipton is more complex and requires a more thorough analysis on appeal. See Painter, 215 Va. at 420, 211 S.E.2d at 38 (stating that "[c]are and circumspection should accompany consideration of the evidence" when adultery is alleged).

Unlike Rouse, who denied any romantic feelings for wife, Lipton was wife's boyfriend at the time of the trial in May and June 2012 - and Lipton remained in that relationship with wife at all pertinent times after the June 2012 hearing concluded. The record establishes that wife and Lipton met through an online dating website in June 2011 - and that they were dating by December 2011. Wife and Lipton went on out-of-state vacations together to North Carolina and Michigan in the early part of 2012. They both acknowledged at trial that they had slept in the same bed during those trips. Wife and Lipton both denied that any sexual acts occurred between the two of them,⁹ while also maintaining that they remained clothed when th...