Dexter v. Dexter

• Decision Date: 06 September 1988
• Docket Number: No. 1305-86-4,1305-86-4
• Citation: Dexter v. Dexter, 371 S.E.2d 816, 7 Va.App. 36 (Va. App. 1988)
• Parties: Jeanne G. DEXTER v. John B. DEXTER. Record
• Court: Virginia Court of Appeals

Page 816

371 S.E.2d 816

7 Va.App. 36

Jeanne G. DEXTER v.John B. DEXTER.

Record No. 1305-86-4.

Court of Appeals of Virginia.

Sept. 6, 1988.

Mark A. Barondess(Sandground, Barondess & West, P.C., Vienna, on brief), for appellant.

Richard J. Byrd(Moshos, Byrd, McClure, De Deo & Mische, P.C., Fairfax, on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and COLE, JJ.

KOONTZ, Chief Judge.

Jeanne G. Dexter filed a bill of complaint on February 17, 1984, seeking spousal support and a divorce from John B. Dexter on the ground of desertion.Thereafter, Mr. Dexter filed an answer and cross-bill seeking a divorce on the ground of desertion to which Mrs. Dexter filed an answer denying her desertion.Subsequently, Mrs. Dexter, without objection, was permitted to amend her bill of complaint to seek a no fault divorce on the ground of a one year separation.No issues of equitable distribution under Code§ 20-107.3 are raised in this appeal.

On April 1, 1985, the trial court heard evidence pursuant to a Motion for Maintenance Pendente Lite in which Mrs. Dexter sought the enforcement of an agreement between the parties executed on March 6, 1975, providing for the payment to Mrs. Dexter of $1,000 per month from the date of any separation or divorce.By letter opinion dated July 16, 1985, Judge Jack B. Stevens ruled that the agreement was invalid; this ruling was incorporated into an order entered on September 6, 1985.¹

By order entered on August 14, 1985, the suit was referred to a commissioner in chancery who conducted an ore tenus hearing on February 11, 1986.On July 8, 1986, the commissioner filed his report in which he found Mrs. Dexter guilty of desertion.He recommended, however, that Mrs. Dexter be granted a final divorce on the ground of a one year separation, as provided in Code§ 20-91(9).Subsequently, the trial court overruled Mrs. Dexter's exceptions to the commissioner's report by letter opinion dated September 16, 1986.²By decree entered on October 7, 1986, the court granted a final divorce to Mr. Dexter from Mrs. Dexter on the ground of a one year separation.The decree further provided that Mrs. Dexter deserted Mr. Dexter and that "there are no payments of support as between the parties."This appeal followed.

Mrs. Dexter raises the following issues: (1) whether the trial court erred in finding her guilty of desertion; and (2) whether the trial court erred in declaring the support agreement invalid.For the reasons that follow, we hold that the trial court erred in finding Mrs. Dexter guilty of desertion but did not err in declaring the agreement invalid.

I.Factual Background

The parties were married on March 1, 1975, shortly after divorcing their prior spouses.No children were born to this marriage.The disputed support agreement was executed on March 6, 1975.

Based on our review of the transcripts of the various hearings in this case, the parties apparently lived happily together for the first several years of their marriage.Mr. Dexter retired from his position as a foreign service officer with the Department of State in January, 1980.Mrs. Dexter was not employed during those years.After Mr. Dexter's retirement, Mrs. Dexter became employed as a realtor.For reasons unclear from the record, domestic difficulties developed between the parties which culminated in the summer of 1983.In July, 1983, Mr. Dexter went to Montana to attend a conference and to fish.During that time the parties discussed their relationship through telephone calls and letters written by Mr. Dexter.In those letters, Mr. Dexter expressed his love for Mrs. Dexter and some jealousy over her relationship with her sons from her prior marriage.

Upon his return from this trip in August, Mrs. Dexter advised Mr. Dexter that she"wanted a period of time by myself as he had had periods of time by himself."She admittedly moved from the marital bedroom and thereafter the parties maintained separate bedrooms.Mr. Dexter's account of the events surrounding his return from Montana was that Mrs. Dexter "was very cold and not receptive to my arrival."He testified that Mrs. Dexter advised him that "I've decided I have to get out and live alone."He proposed that they seek marriage counseling, which she declined.Mr. Dexter then participated in counseling with William Baxter alone with the exception of one or two occasions on which Mrs. Dexter had a conference separately with Mr. Baxter.

Sometime during this period, Mrs. Dexter discovered that she had breast cancer and underwent an operation and treatment for her condition.Upon her return from the hospital in late September, and following a discussion with Mrs. Dexter's son, Mr. Dexter decided that he would move from the marital residence.He testified: "I decided that in view of the cancer and the illness that she was going through and since the marriage had ended, since she had chosen not to continue the marriage, there was nothing that I could do about it and therefore I would not subject her to the stress and anxiety and the effort of a physical move."Mr. Dexter further testified that he did not intend the separation to be permanent, but rather that "I could have let her move but I thought I'd spare her the trouble."Mrs. Dexter testified that thereafter she made the necessary arrangements to secure an apartment into which Mr. Dexter moved on October 4, 1983.The parties remained separated after that date.

In addition to the testimony of the parties, the court received the testimony of Richard Rebh, Mrs. Dexter's son, and William Baxter, the marriage counselor.Pertinent to the issue of fault, Mr. Rebh testified that he came from California to Virginia during the time his mother was in the hospital.He talked with his mother and Mr. Dexter about their marital situation and concluded that "the parties agreed amicably to live separately at that time."Mr. Rebh testified that he met with Mr. Dexter and Mr. Baxter as a favor to Mr. Dexter.Mr. Rebh testified that following that meeting "I came out of that room with the consensus that the group had decided that what John should do would be to go to mother and say, 'I'm happy to do whatever you think is appropriate.I think its up to you to make the decision of whether I move out or whether you move out or if we both move out.Clearly there needs to be a physical separation at this time primarily because of your medical condition so that you can recover appropriately.' "Mr. Rebh also testified that he felt Mr. Dexter would like the marriage to be preserved.

William Baxter testified that after meeting individually with both parties, he concluded Mrs. Dexter was not interested in continuing the marriage and Mr. Dexter wanted to restore the marriage.He did not testify as to any reasons for or explanations of the marriage difficulty.

II.The Desertion Issue

"Under familiar principles, we may not disturb the findings of the chancellor where they are supported by credible evidence."Shaughnessy v. Shaughnessy, 1 Va.App. 136, 138-39, 336 S.E.2d 166, 168(1985)."Where the evidence is heard by a commissioner and not ore tenus by the trial court, the decree is not given the same weight as a jury verdict, but if the decree is supported by substantial, competent and credible evidence, it will not be overturned."McLaughlin v. McLaughlin, 2 Va.App. 463, 466, 346 S.E.2d 535, 536(1986)(citations omitted);seeCode§ 8.01-680.

In his report to the chancellor, the commissioner first concluded that "the marital difficulties between the parties hereto surfaced at least during the mid-summer of 1983.What they consisted of and how long they had persisted is not clear from the evidence."The commissioner then recited the occurrences of that summer and concluded that Mrs. Dexter desired an "immediate separation."He further concluded that Mrs. Dexter had formulated "a definite intention to separate, terminate the marriage, and secure the removal of [Mr. Dexter] from the marital domicile."Based upon Mrs. Dexter's statements to Mr. Dexter of her desire to separate, her removal of herself from the marital bedroom, the termination of sexual relations, and her actions in securing an apartment for Mr. Dexter, the commissioner found that on October 4, 1983, Mr. Dexter "voluntarily left the marital residence" and that Mrs. Dexter had "in effect forced him to leave."Relying on Carter v. Carter, 199 Va. 79, 97 S.E.2d 663(1957), the commissioner concluded for these reasons that Mrs. Dexter had not shown that Mr. Dexter's conduct had "rendered it impossible for her to live with him in safety and in the reasonable peace and accord that should adhere in the marriage state," and therefore, Mrs. Dexter was guilty of desertion.By letter opinion dated September 16, 1986, the chancellor affirmed the findings of the commissioner.

The gist of Mr. Dexter's argument below and on appeal is that Mrs. Dexter had determined that she wanted to end the marriage and that his leaving the marital home on October 4, 1983, was simply an effort to "do the right thing--the gentlemanly thing" by not subjecting Mrs. Dexter to more stress and anxiety given her medical condition or to the physical effort of having to remove herself from the marital home to effectuate the separation she desired.In short, he argues, as the commissioner found, that Mrs. Dexter's desertion was complete before he moved from the marital home and he was therefore justified in leaving.We hold that the finding of the commissioner, affirmed by the chancellor, that Mrs. Dexter deserted Mr. Dexter was not supported by the credible evidence; that because Mrs. Dexter did not assert that Mr. Dexter deserted her, the justification for his leaving the marital home was not in issue; and that the commissioner's reliance on Carter was misplaced.

" 'Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the marital cohabitation, and secondly, an intent...