Gottlieb v. Gottlieb

• Decision Date: 27 September 1994
• Docket Number: No. 0291-93-1,0291-93-1
• Citation: Gottlieb v. Gottlieb, 448 S.E.2d 666, 19 Va.App. 77 (Va. App. 1994)
• Parties: Raymond L. GOTTLIEB v. Rhona Peck GOTTLIEB. Record
• Court: Virginia Court of Appeals

Page 666

448 S.E.2d 666

19 Va.App. 77

Raymond L. GOTTLIEB v. Rhona Peck GOTTLIEB.

Record No. 0291-93-1.

Court of Appeals of Virginia.

Sept. 27, 1994.

[19 Va.App. 79] Morris H. Fine, Virginia Beach (Fine, Legum & Fine, on briefs), for appellant.

Peter W. Smith, IV, Norfolk (Robert C. Stackhouse, Stackhouse, Rowe & Smith, on brief), for appellee.

Present: MOON, C.J., and COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

In this domestic appeal, Raymond L. Gottlieb (husband) assigns twenty-eight grounds of error to the trial court's rulings on the issues of divorce, spousal support, and equitable distribution. Many of husband's arguments are without merit. We address only those issues properly preserved for appeal and that have some factual basis in the record or present legitimate questions of law. We summarily affirm all other assignments of error. For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

This is a contested divorce case involving issues of fault, spousal support, equitable distribution, transmutation of assets, and attorney's fees. The parties separated on February 12, 1987, after twenty-four years of marriage, when wife moved out of the marital home. Wife left the marital home on the recommendation of her psychologist, because conditions in the marriage became intolerable, causing her physical and emotional pain. Her several attempts to correct the situation failed. Wife filed for divorce based on constructive desertion and cruelty. Husband's demurrer to wife's bill of complaint was sustained. Thereafter, husband filed for divorce on the ground of desertion, and wife filed a cross-claim seeking a no-fault divorce based on a one-year separation. The trial court found that wife was without legal fault in leaving the marriage, dismissed husband's complaint for desertion, and awarded wife a divorce on no-fault grounds.

During the marriage, husband was the primary income earner, and wife was the homemaker and child care provider for their two children. Husband has a law degree and is a successful investor and businessman. Wife has a master's degree in social work; however she worked outside the home only during the first four years of the marriage. Most of the increase in the parties' assets during the marriage was derived from investments controlled by husband or from various closely held business entities owned primarily by husband. The evidence proved that although husband controlled the operations of these businesses, wife made some monetary and significant non-monetary contributions to the overall success of these businesses.

RES JUDICATA

On February 13, 1987, wife filed a bill of complaint for divorce alleging constructive desertion by husband. Husband demurred, and the trial court sustained the demurrer with leave granted to wife to amend her complaint. On April 21, 1987, wife filed an amended bill of complaint for divorce on the grounds of cruelty and constructive desertion by husband. Again, husband demurred, and by order dated August 27, 1987, the trial court sustained husband's demurrer to the amended bill of complaint, but granted wife further leave to amend the complaint within twenty-one days. Wife failed to amend, and the order dismissing her amended bill of complaint became final. ¹

On June 2, 1988, husband filed a bill of complaint for divorce in a separate case, alleging willful desertion by wife. Wife filed an answer and cross-bill seeking a no-fault divorce on the ground of a one-year separation. Husband then filed a special plea of res judicata and motion for summary judgment, which was denied. Husband argues that the trial court's order sustaining husband's demurrer in the original divorce suit barred, under the doctrine of res judicata, wife's defense that she was free from fault in leaving the marital home. As such, husband contends that he was entitled to summary judgment on his bill of complaint for divorce. We disagree.

On appeal, we view the evidence in the light most favorable to the prevailing party below. Westmoreland Coal Co. v. Campbell, 7 Va.App. 217, 222-23, 372 S.E.2d 411, 415 (1988). Res judicata precludes the re-litigation of a claim or issue once a final determination on the merits has been reached by a court having proper jurisdiction over the matter. See Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 617-18, 376 S.E.2d 787, 788 (1989). "A person seeking to assert res judicata as a defense must establish: (1) identity of the remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality of the persons for or against whom the claim is made." Id. at 618, 376 S.E.2d at 789. Here, husband could not establish all the elements of the res judicata defense.

In her April 1987 amended bill of complaint, wife sought dissolution of the parties' marriage on fault grounds and prayed that she be granted a divorce. The issue in that case was whether husband's conduct was sufficient to constitute a fault ground of divorce. In the subsequent divorce suit filed by husband, the issue was whether wife's conduct constituted desertion. Each party's case attempted to prosecute different causes of action. The mere fact that wife could not maintain a suit for divorce against husband on the grounds of cruelty and constructive desertion does not automatically render her conduct in leaving the marital home an adequate ground of divorce. A spouse may be legally justified in leaving the marital home "where the conduct of the other spouse has caused conditions in the marital home to be intolerable," Kerr v. Kerr, 6 Va.App. 620, 623, 371 S.E.2d 30, 32 (1988), or where the departing spouse "reasonably believes that his or her health is endangered by remaining in the household and he or she has unsuccessfully tried less dramatic measures to eliminate the danger." D'Auria v. D'Auria, 1 Va.App. 455, 459, 340 S.E.2d 164, 166 (1986). The order sustaining husband's demurrer to wife's amended bill of complaint established that, under the facts alleged, husband did not constructively desert his wife. However, that ruling did not operate, under the doctrine of res judicata, as a complete bar to wife's defenses against husband's bill of complaint.

SUMMARY JUDGMENT

Husband also appeals the trial court's denial of his motion for summary judgment. Husband argued to the trial court that wife's defenses were barred by the doctrine of res judicata, and therefore, he was entitled to summary judgment on his bill of complaint for divorce pursuant to Rule 3:18 of the Rules of the Supreme Court of Virginia. As noted above, husband's res judicata argument must fail. In addition, the Supreme Court of Virginia has explained that "[s]ummary judgment is a drastic remedy which is available only where there is no material fact genuinely in dispute.... It applies only to cases in which no trial is necessary because no evidence could affect the result." Shevel's, Inc.--Chesterfield v. Southeastern Associates, Inc., 228 Va. 175, 181, 320 S.E.2d 339, 342-43 (1984). The extensive record in this case belies any argument that material issues of fact were not in dispute as to fault grounds for divorce or support. Moreover, Rule 3:18 applies only to actions at law. See Rule 3:1. Rule 2:21, which extended the remedy of summary judgment to equity cases, does not apply to "a suit for divorce or for the annulment of marriage." Rule 2:21. Therefore, husband's appeal of this issue, which has no basis in fact or law, is without merit.

GROUNDS FOR DIVORCE

Husband argues that the trial court erred in granting wife a no-fault divorce, and that he was entitled to a divorce on the ground of wife's desertion. " 'Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the marital cohabitation, and secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete.' " Zinkhan v. Zinkhan, 2 Va.App. 200, 205, 342 S.E.2d 658, 660 (1986) (quoting Nash v. Nash, 200 Va. 890, 893, 108 S.E.2d 350, 352 (1959)). At the ore tenus hearing of December 8, 1992, the trial court made findings of fact as to factors leading to the dissolution of the marriage, including a specific finding that wife's testimony was more credible than husband's. After reviewing the evidence as to fault, the trial court concluded:

In the light of the testimony of Mrs. Gottlieb and Dr. Powell, there was substantial, credible evidence Mrs. Gottlieb could reasonably believe that her physical and mental health were endangered by remaining in [the marital] household. Furthermore, the record indicates that Mrs. Gottlieb attempted to take reasonable measures to correct or make better the marital relationship short of termination.... [T]herefore, it appears in the record that Mrs. Gottlieb was without legal fault in terminating cohabitation.

The trial court dismissed husband's bill of complaint and awarded wife a no-fault divorce based on a one-year separation. Code § 20-91(9).

On appellate review, a divorce decree is presumed correct and will not be overturned if supported by substantial, competent, and credible evidence. See Capps v. Capps, 216 Va. 382, 384, 219 S.E.2d 898, 899 (1975). Wife's evidence proved that she left the marital home because she reasonably believed her health was endangered by remaining, and she unsuccessfully tried less drastic measures to eliminate the danger. Accordingly, the trial court could properly find she was without legal fault. See D'Auria, 1 Va.App. at 459, 340 S.E.2d at 166; Breschel v. Breschel, 221 Va. 208, 212, 269 S.E.2d 363, 366 (1980).

The evidence presented by the parties was in conflict. The trial court made a specific finding that wife's testimony was more credible than husband's. We cannot say that the trial judge erred in so doing. "The credibility of witnesses was crucial to the determination of the facts, and the findings of the trial court based...