Graves v. Graves

• Decision Date: 16 June 1987
• Docket Number: No. 1047-85,1047-85
• Citation: 4 Va.App. 326,357 S.E.2d 554
• Parties: James Millar GRAVES v. Bonnie June Gill GRAVES. Record
• Court: Virginia Court of Appeals

Page 554

357 S.E.2d 554

4 Va.App. 326

James Millar GRAVES v. Bonnie June Gill GRAVES.

Record No. 1047-85.

Court of Appeals of Virginia.

June 16, 1987.

Steven M. Garver (Garver & Moller, Reston, on brief), for appellant.

Judith M. Bragan (Dixon & Smith, Fairfax, on brief), for appellee.

Present with DUFF, KEENAN and MOON, JJ.

KEENAN, Judge.

James M. Graves (husband) appeals from a decree in which the trial court denied him a divorce based on desertion contrary to the recommendation of the commissioner in chancery, awarded Bonnie J.G. Graves (wife) a divorce on the ground of a one year separation, and awarded the wife $4,800 in attorney's fees. The issues presented in this appeal are: (1) whether the trial court erred in finding that the husband did not prove his allegation of desertion; (2) whether there was sufficient evidence to grant the wife a divorce based on a one year separation; and (3) whether the trial court abused its discretion in its award of attorney's fees to the wife. Based upon our review of the record, we find that the trial court erred in granting the wife a divorce on the evidence presented. We further find that the trial court did not err in denying the husband a divorce based on desertion and in awarding the wife $4,800 in attorney's fees.

The evidence in this case was heard by the commissioner in chancery. It is undisputed that the parties had an argument on October 2, 1983, regarding their daughter, Carole Anne, who was then aged sixteen. As a result of this argument, the wife left home. Later in the evening, she called and spoke to Carole Anne. According to Carole Anne, the wife stated that she was at a friend's house and further said: "I may or may not be back in the course of time." The wife stayed with her friend that evening.

The evidence further showed that the next morning, the wife called home and spoke with the husband. According to the husband, the wife indicated "that she was going to come back and get her things." The husband testified, however, that he was afraid the wife would take items other than clothes, so he asked Carole Anne to pack a suitcase "so we could meet her at the door."

The wife testified that the purpose of her call was to tell the husband that she was coming home to change her clothes and go to work. According to the wife, the husband told her that she had deserted him and that she could not come back into the house. The wife further testified that when she later returned home and entered the house, the husband grabbed her arm and started to push her backwards out of the house, stating: "Well, you got farther than I thought you would get." A struggle ensued. The wife testified that the husband punched her in the face and kicked her in the ribs and back. She admitted biting her husband, but stated that it was done in self-defense. The husband did not testify as to the parties' physical altercation.

Carole Anne testified that she saw her father pushing her mother and that "[t]hey were struggling in the hall and he was shoving her out the door." The husband succeeded in getting the wife out of the house and she did not return. The following day, October 4, 1983, the husband filed a bill of complaint for divorce alleging that the wife had deserted him.

The husband testified that on the weekend after these events took place, he attempted to reconcile with his wife, but she refused to return. According to the husband, the wife said that she could not stand to live under the same roof with him.

Based on these facts, the commissioner found that the wife was guilty of desertion. He explained his finding:

If she intended to return on October 2, 1983, but changed that intent as a result of the fight on the morning of October 3, 1983, then the question is transformed to the right and justification to leave and not return as a result of the right. It is the opinion of the commissioner that the fight which took place on October 3, 1983 was equally provoked and triggered by acts, words, and demands by both and that both equally participated in the fracas even though the wife may have suffered more immediate effects.

The trial court overruled the commissioner's finding of desertion. The court found that the wife's initial decision to leave home following the argument was a "prudent" one. The court further found that the husband's refusal to allow the wife back into the house precipitated the physical confrontation between the parties. The court stated: "[T]he husband's attitude indicated a specific intent to find a ground on which to end the marriage. His filing for divorce on the day following this assault is further proof of the husband's state of mind." Finally, the court held that the wife's refusal to return the following weekend was not "inappropriate" given the fact that her husband previously had told her she could not return and had assaulted her when she tried. The court found that the commissioner's conclusions about the wife's attitude toward the marriage were "preposterous."

The commissioner's hearing was held on October 1, 1984. At that time, the parties had been separated less than one year. The husband testified that they ceased cohabitation on October 2, 1983; the wife testified that they had been separated since October 3, 1983. After October 1, 1984, no further evidence was taken regarding the period of the parties' separation. The court, however, awarded the wife a divorce based upon a one year separation. The decree of divorce was entered on July 12, 1985. The court further awarded the wife counsel fees of $4,800, payable in installments of $300 per month.

I.

The husband first argues that the trial court erred in overruling the commissioner's recommendation. He contends that the wife left the marital abode of her own free will on October 2, 1983 when she went to her friend's house. He further contends that even though he and his wife argued prior to her departure, there was no physical fighting between them on that date. The husband argues that these facts, combined with the wife's statement that night to her daughter that she "may not be back," indicated that she did not intend to return to the marital relationship.

These facts were directly addressed by the trial court in its letter opinion overruling the commissioner's finding of desertion. The court held:

The Commissioner's finding of desertion is not justified by the facts elicited before him. The wife had not clearly formed any intent to desert the marriage when she left the marital abode on October 2, 1983. Her decision to leave the home at that time in order to let passions subside was prudent. Her statement to her daughter "I may or I may not be back in the course of time" indicate[s] an ambivalent attitude. Further, given the daughter's heavy participation in the preceding argument, the remark could easily be construed as a rebuff to the daughter rather than a weighty philosophical comment on the state of her marriage.

Upon her return to the marital abode, it is clear that whoever began the physical assault, it was precipitated by her husband's refusal to allow the wife into the home and his conclusion that the wife's overnight stay at the neighbors constituted her deserting him and their 20 year marriage. The husband's attitude indicated a specific intent to find a ground on which to end the marriage. His filing for divorce on the day following this assault is further proof of the husband's state of mind.

The wife's refusal to return the following weekend after having been told by the husband that she could not return home, then physically assaulted and ejected from the marital domicile does not appear to have been inappropriate. The Commissioner's finding that the wife's actions indicated a "nonchalant...