Graham v. Graham

• Decision Date: 09 March 1970
• Citation: 172 S.E.2d 724,210 Va. 608
• Parties: William H. GRAHAM v. Inez S. GRAHAM.
• Court: Virginia Supreme Court

Page 724

172 S.E.2d 724

210 Va. 608

William H. GRAHAM v. Inez S. GRAHAM.

Supreme Court of Appeals of Virginia.

March 9, 1970.

Harry P. Anderson, Jr., Richmond (Satterfield, Haw, Anderson, Parkerson & Beazley, Richmond, on brief), for appellant.

Archer L. Yeatts, III, Richmond (Bareford & Downs, Richmond, on brief), for appellee.

Before I'ANSON, CARRICO, GORDON, HARRISON and COCHRAN, JJ.

HARRISON, Justice.

William H. Graham, plaintiff, filed a bill against his wife, Inez S. Graham, defendant, seeking a divorce A mensa et thoro to be later merged into an absolute divorce on the ground of willful desertion.

Defendant filed an answer and cross-bill, in which she prayed for a divorce A mensa et thoro on the ground of cruelty and constructive desertion with permission to merge into an absolute divorce at the proper time.

The evidence was taken by depositions, and the chancellor entered a final decree on May 14, 1968, denying each party a divorce for the reason that their respective allegations had not been proven. Plaintiff excepted to the action of the trial court, and we granted him an appeal. Cross error was not assigned by the defendant.

The evidence of plaintiff established that on October 20, 1967, while he was visiting his mother in Pulaski, defendant removed herself, and the furniture in five rooms of their home, located at 4905 Gilmur Road in Henrico County. Corroboration was provided by neighbors of the parties and by their paster. They either helped defendant pack or were advised by her that she was leaving and moving to 321 Appian Avenue, Virginia Beach. At the time Mrs. Graham seemed under considerable strain and reflected anxiety. The act of the defendant in leaving was willful and constituted an actual breaking off of the matrimonial cohabitation by her with the intent to desert.

The chancellor concluded that, while plaintiff established that his wife left on October 20, 1967, he failed to corroborate 'that this was without justification or excuse'. In effect, the trial court held that in order for plaintiff to secure a divorce on the ground of desertion, it is necessary that willful desertion be established and that he prove that such was without justification or excuse.

This proposition finds support in Owens v. Owens, 197 Va. 681, 684, 90 S.E.2d 776, 778 (1956), which contains language to the effect that: 'A decree of absolute divorce should not be granted unless the evidence relied upon proves wilful desertion without justification or excuse, and the burden of establishing this rests on the complainant. (Citing numerous cases.)'

We do not construe these cases as requiring a plaintiff to establish desertion by a defendant, and also to negate every ground or reason which such defendant might have for deserting. To so hold would require a plaintiff to prove that the defendant was not entitled to a divorce on any of the grounds recognized by law--this in addition to proving his primary ground for affirmative relief.

In the instant case plaintiff alleged desertion by defendant and also alleged that such desertion was 'without justification or cause'. The latter allegation was unnecessary, for Code § 20--95 provides that '(a) divorce from bed and board may be decreed for * * * abandonment or desertion'. In the absence of justification, apparent from plaintiff's own admissions, proof by plaintiff of an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, entitles the party deserted to a divorce. When such desertion is established, the duty of going forward with evidence of justification and excuse then rests on defendant, unless such justification appears from testimony adduced by plaintiff.

The chancellor further concluded that the testimony of defendant disclosed conduct on the part of plaintiff which, if corroborated, would entitle her to a divorce. He denied her the divorce for lack of such corroboration, and properly so, for the only evidence of corroboration came from her spouse, the plaintiff.

We are therefore confronted with a narrow issue of fact: Are the admissions of plaintiff alone, or taken with the evidence of defendant, sufficient to show legal justification for her desertion of him? In making this determination, it is proper that we consider his admissions. While no divorce may be granted on the uncorroborated testimony of the parties or either of them, and the cause shall be heard independently of the admissions of either party (Code § 20--99), such testimony and admissions are admissible and competent as evidence to defeat a prayer for divorce. Cralle v. Cralle, 79 Va. 182 (1884); Bailey v. Bailey, 62 Va. (21 Gratt.) 43 (1871); Tillis v. Tillis, 55 W.Va. 198, 46 S.E. 926 (1904), 6 Mich.Jur., Divorce and Alimony, § 31, p. 294.

These parties were married July 9, 1955 in Pulaski. At the time of their separation Mr. Graham was 43 and Mrs. Graham was 54. No children were born of the marriage. Mrs. Graham has two children by a prior marriage.

Plaintiff is employed in the daytime by the Virginia State Health Department as an Embalming Supervisor and works nights and Saturdays as a salesman in the electrical department of Sears Roebuck and Company.

The witnesses, other than the parties, established that Mrs. Graham moved out of the home on October 20, 1967 and went to Virginia Beach. Mrs. Helen Chapman had seen Mrs. Graham when she was upset and crying because of some argument with plaintiff, but she had never seen him hit, curse or abuse his wife. The Reverend Earle E. Henley, Jr. had been consulted by Mrs. Graham regarding her marital problems 12 to 15 times over a period of two years. He had consulted with the parties separately and together. On one occasion he noted 'definitely a bruise' on Mrs. Graham's upper arm and said she was nervous and upset. Mrs. Joyce E. Hydrick also saw a bruise on defendant's arm about a year and a half prior to the separation, and at one time she saw a bruise above defendant's knee.

Mr. Graham left for Pulaski to visit his mother on the afternoon of Thursday, October 19, 1967, and upon returning the following Monday night, he found the house empty of furniture and furnishings, except for his bedroom suite, a TV set and some miscellaneous articles. He determined from defendant's daughter-in-law that his wife had moved out and where she had gone, but did not telephone defendant, for he 'saw no reason for her leaving'. Plaintiff stated that he loved his wife and would have tried to contact her 'if there hadn't been so much water under the dam before'. He said that his wife had threatened to leave a number of times because 'she wasn't happy with me'.

Plaintiff admitted to having 'right much of a temper at times'; to getting 'right angry'; and in a fit of anger to breaking some furniture, a chair or two, and kicking a cabinet door loose, but '(n)ot in the last year or two'. He also said that he had cursed his wife, used vile words to her, such as calling her a 'bitch', 'son-of-a-bitch' and 'liar', and a few times had stayed out all night because we had fussed and I went out'.

Graham also admitted slapping his wife on the arm about two years prior to their separation, giving her 'right much of a bruise', and hitting her one time later when they were in the car. Apparently the incident in the car happened the latter part of March, 1967.

He said that everytime they had a fuss, '(I)t's from prodding and calling me a liar, and not just once but sometimes from the time I walk in the door to eat supper, or when I come back from work if I am working at Sears, and up until 2:00 and 3:00 o'clock in the morning'; and that sometimes the fussing would go on for days, starting out as mild nagging and getting to the place where each would curse the other. Graham agreed that nagging by a wife did not justify cursing or hitting her: 'Actually nothing justifies calling anybody that. It shouldn't be done from anybody. I agree with that. It's the release that many of us have.'

Testimony given by the defendant shows that her relationship with plaintiff's family was not a close and friendly one. Defendant did not feel accepted by her mother-in-law and complained of being treated like an outsider. She recalled an occasion which involved an unwilling visit with her in-laws because her husband said: '(I)f you think you live in hell now, if you don't go with me, I will show you what living in hell is really like.' Taking that to be a threat, she went with him because 'I had gotten to the point where I was afraid of him'.

The desertion on October 20, 1967 related to a visit plaintiff made his family. Mrs. Graham testified that plaintiff's mother had written a month and a half prior to the time. Defendant read the letter and resented plaintiff saying nothing to her about the proposed visit. On October 18th she phoned plaintiff at his office and learned that he was going to Pulaski the following day. She asked what he expected her to do, and he responded: 'I don't give a damn what you do. I am going to be with my mother so I can laugh and enjoy myself, and I don't care what you do.'

Defendant stated that plaintiff came in that night around 8:30, walked straight to his bedroom took his clothes off and went to bed without turning the light on. When she went in the room and turned the light on, he said: '(C) ut that damn light off, and I did. And I said, going to bed so early? He said yes, I am tired. And I said why are you so tired? He said I have been out blanking a dozen women.' Mrs. Graham then left the room and slept in one of the other bedrooms that night.

Plaintiff asked defendant to accompany him to Pulaski. She gave as a reason for not going: 'I felt that I was not accepted and that I was in the way, and after he had talked to me the way he did on the phone, plus the way he came in that night, I just felt like I could not go with him.'

Her explanation for moving out the following day was: '(...