Dodge v. Dodge

Decision Date06 May 1986
Docket NumberNo. 0881-85,0881-85
Citation343 S.E.2d 363,2 Va.App. 238
PartiesPaul Townsend DODGE v. Gloria Ann DODGE. Record
CourtVirginia Court of Appeals

Gregory L. Sandler, Virginia Beach, (Gordon & Brown, Chesapeake, on brief), for appellant.

Kathleen Dring (Gilman P. Roberts, Jr., Tidewater Legal Aid Society, Norfolk, on brief), for appellee.

Present: BAKER, BARROW and HODGES, JJ.

JOSEPH E. BAKER, Judge.

Paul Townsend Dodge (husband) appeals from a final decree which granted his wife, Gloria Ann Dodge (wife), a divorce a vinculo matrimonii on the dual grounds of husband's willful desertion and adultery, and which awarded wife $300 monthly spousal support.

On appeal, husband asserts that wife presented insufficient evidence to support the trial court's findings of his desertion and adultery. In addition, husband asserts that the spousal support award was excessive and was erroneously based solely on his fault, to the exclusion of other factors listed in Code § 20-107.1.

The parties married on January 6, 1976, in Portsmouth, Virginia, and thereafter resided together in the City of Chesapeake. One child, a daughter, was born of the marriage on August 11, 1981. The marriage developed problems and husband permanently departed from the marital home on March 19, 1983. On September 27, 1983, wife filed her bill of complaint in the Chesapeake Circuit Court asking that she be awarded a divorce based on desertion and adultery, spousal support, custody of the parties' daughter, child support, attorneys' fees and costs. Husband's answer denied the allegations of desertion and adultery, and requested dismissal of the suit with attorneys' fees and costs.

By decree entered on February 21, 1984, the trial court referred the cause to a commissioner in chancery, who conducted an ore tenus hearing on September 25, 1984. At the hearing each party testified and called witnesses in support of their respective claims.

The commissioner filed his report with the trial court on January 29, 1985. It contained extensive factual findings pertaining to jurisdiction and procedural requirements, the circumstances surrounding the parties' permanent separation, and their individual financial conditions. The report recommended, in relevant part, that wife receive a divorce based upon husband's willful desertion and adultery, and that husband pay $300 monthly spousal support to wife in addition to child support for their daughter.

Husband filed exceptions to those portions of the commissioner's report which recommended a divorce upon the ground of adultery, and as to the amount of spousal support. His exceptions were overruled by a decree in which the trial court "confirmed and ratified" the commissioner's entire report.

I. DESERTION

The appellant failed to take exception to that portion of the commissioner's report which recommended that a divorce be granted to wife on the ground of husband's willful desertion as required by Code § 8.01-615. On appeal, objection comes too late.

The rule is that the parts of a report not excepted to, are to be considered as admitted to be correct-both as regards the principles and the evidence upon which they are founded: otherwise the opposite party would be taken by surprise, and, in consequence thereof, injustice might be done. Exceptions partake of the nature of special demurrers, and hence, as the authorities say, the party excepting must "put his finger on the error," that the court may see what it has to decide. It is too late, however, to do so for the first time in the appellate court, unless the report be erroneous on its face.

Cralle v. Cralle, 84 Va. 198, 201, 6 S.E. 12, 13-14 (1887) (citations omitted). No error appears on the face of the report of the commissioner nor on the face of the decree of the trial court. Except as to such apparent errors, a report of a commissioner in chancery is prima facie correct. Trotman v. Trotman, 148 Va. 860, 867-68, 139 S.E. 490, 494 (1927).

Under the well settled rule on the subject, the evidence in the cause cannot be looked to by us to ascertain whether the conclusion aforesaid of the Commissioner was sustained or not sustained by the evidence. On the face of the reports aforesaid no error is apparent in such conclusion. No exception having been taken by appellant in the court below, as aforesaid, it is too late for it to raise the objection in this court on appeal. The conclusion of the commissioner and the adjudication of the court, by the decree complained of based thereon, aforesaid, were, therefore, final and conclusive upon appellant and are not open to review in this court. Hence we cannot sustain the assignment of error of appellant.

Id. at 868, 139 S.E.2d at 492 (citations omitted). For the reasons stated we affirm the ruling of the trial court that the husband was guilty of desertion.

II. ADULTERY

A judgment of the trial court will not be set aside on the ground that it is contrary to the evidence unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it. Code § 8.01-680. We must next decide whether there is evidence to support the commissioner's report and the adjudication contained in the decree of the trial court that adultery was committed by the husband. The trial court's decree is presumed correct; however, 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. Hoffecker v. Hoffecker, 200 Va. 119, 124, 104 S.E.2d 771, 774-75 (1958). If such decrees are supported by substantial, competent and credible evidence in depositions, they will not be overturned on appeal. Capps v. Capps, 216 Va. 382, 384, 219 S.E.2d 898, 899 (1975).

While the report of a commissioner in chancery does not carry the weight of a jury's verdict, Code § 8.01-610, it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence. This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence, but is not applicable to pure conclusions of law contained in the report. On appeal, a decree which approves a commissioner's report will be affirmed unless plainly wrong.

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984) (emphasis added) (citations omitted).

Using these guidelines, we must determine whether the record contained sufficient competent and credible evidence to support the portion of the chancellor's decree which granted the wife a divorce on the ground of adultery. In making that determination, we are bound by further well established rules regarding proof of adultery as set forth in the Code and the controlling cases.

To establish a charge of adultery, the evidence must be clear, positive and convincing. Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975). Strongly suspicious circumstances are inadequate. Id. The divorce may not be awarded on the uncorroborated testimony of the parties. Additional admissible evidence must be produced independent of their admissions. See Code § 20-99(2) and (3); Raiford v. Raiford, 193 Va. 221, 227-28, 68 S.E.2d 888, 892-93 (1952).

In this case, wife relied on statements--and the inferences therefrom--made by husband. In Hampton v. Hampton, 87 Va. 148, 12 S.E. 340 (1890), the court held that letters written by a party which contained adverse admissions should have been excluded from the evidence. The court there reasoned that the words used in the Code that "the cause shall be heard independently of the admissions of either party, in the pleadings or otherwise" bar the use of such admissions in a divorce hearing. Id. at 149, 12 S.E. at 340. In Holt v. Holt, 174 Va. 120, 5 S.E.2d 504 (1939), the court recognized the fallacy of that reasoning and pointed out that prior to the Hampton decision, letters containing admissions had been admitted. Id. at 130-31, 5 S.E.2d at 508-09; see Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 49-51 (1871). In Holt, the court said that to the extent that Hampton excluded such admission "that case is hereby overruled." 174 Va. at 131, 5 S.E.2d at 509.

It is clear that a divorce may not be awarded on the uncorroborated admissions of the parties, but Holt holds that letters of a party which acknowledge that party's guilt "may be admitted in evidence in a suit for divorce (except where it is shown they were written by collusion for the purpose of obtaining a divorce) just as in any other case, for the purpose of proving, or as tending to prove facts pertinent to the question which the court is called upon to decide, to have precisely the same weight as in other cases." 174 Va. at 131, 5 S.E.2d at 509.

The statutes (20-97, 20-99) create many differences between suits for divorce and suits in equity. They provide (1) no person may maintain a suit for divorce unless one of the parties, at the beginning of the suit, is domiciled in, and is and has been an actual bona fide resident of the State for at least one year; (2) only an authorized officer may serve notice or process; (3) the bill shall not be taken for confessed, nor a divorce granted on the uncorroborated testimony of the parties, or either of them, and (4) whether the defendant answers or not the cause shall be heard independently of the admissions of either party in the pleadings or otherwise.

Commenting on this declared public policy, it was said in Bailey v. Bailey, 21 Gratt. (62 Va.) 43, 50:

All that was intended by the (statute) * * * was to put in the form of a statutory enactment, that principle which had been well settled by the ecclesiastical courts of England and the whole current of decisions of the courts of the States of the Union * * * to wit, that a divorce would never be granted merely upon the consent, or on the default of the party charged, but only on proof of the cause alleged * * *. This salutary rule was intended to prevent parties who were weary of the...

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