Kennedy v. Kennedy, Record No. 0218-06-2 (Va. App. 10/24/2006)
| Decision Date | 24 October 2006 |
| Docket Number | Record No. 0218-06-2. |
| Court | Virginia Court of Appeals |
| Parties | JAMES DELESLIE KENNEDY<SMALL><SUP>*</SUP></SMALL> v. MILDRED D. KENNEDY. |
Appeal from the Circuit Court of Henrico County, Gary A. Hicks, Judge.
Diane Christensen (Woods & Christensen, on brief), for appellant.
John H. Goots (Bynum, Coleman, Goots & Muzi, L.L.P, on brief), for appellee.
Present: Judges Benton, Clements and Beales.
James Deleslie Kennedy (husband) appeals the December 20, 2005 final decree granting Mildred D. Kennedy (wife) a divorce on the ground of cruelty and adjudicating the issues of equitable distribution, spousal support, and attorney's fees. On appeal, husband contends the trial court erred in awarding wife (1) a divorce on the ground of cruelty, (2) sixty-five percent of the marital value of the parties' residence, (3) fifty-five percent of the value of husband's Edward Jones IRA, (4) $400 per month in spousal support, and (5) $2,500 in attorney's fees. Husband further requests an award of his attorney's fees and costs incurred in pursuit of this appeal. For the reasons that follow, we affirm the trial court's judgment in part, reverse the trial court's judgment in part, remand for reconsideration consistent with this opinion, and deny husband's request for appellate attorney's fees and costs.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
The parties married on May 31, 1984, and separated on October 15, 2003. No children were born of the marriage.
On October 21, 2003, wife filed a bill of complaint for divorce on the grounds of adultery and cruelty. Husband filed an answer denying wife's allegations of adultery and cruelty.
On December 19, 2003, the trial court entered a pendente lite order directing husband to pay wife $1,000 per month in spousal support. On November 15, 2004, wife filed a motion for a rule to show cause against husband alleging arrearages of $2,000 in the court-ordered spousal support. The trial court conducted a hearing on the motion on December 13, 2004, but no apparent action was taken at that time. Another hearing on wife's previously filed show cause motion was held on February 28, 2005. The trial court found the evidence sufficient to grant the requested rule to show cause but withheld a finding and continued the matter on the docket. On May 26, 2005, wife again filed a motion for a rule to show cause alleging husband was $2,000 in arrears in his spousal support payments. That motion was noticed for hearing on July 5, 2005.
On July 5, 2005, the trial judge heard evidence concerning the grounds of divorce, equitable distribution, spousal support, husband's spousal support arrearage, and attorney's fees and received the parties' joint stipulations and respective exhibits. Per the judge's directive, the parties subsequently submitted their closing arguments in writing.
In a letter opinion dated November 30, 2005, the trial judge concluded that wife was entitled to a divorce from husband on the ground of cruelty. The judge further concluded, inter alia, that wife was entitled to sixty-five percent of the marital portion of the proceeds from the sale of the marital residence, fifty-five percent of the value of husband's Edward Jones IRA, $400 per month in spousal support, and $2,500 in attorney's fees and costs. The judge entered a final decree memorializing his rulings on December 20, 2005.
This appeal followed.
Husband contends wife failed to prove her allegation of cruelty. Specifically, husband argues that wife's evidence was insufficient to prove his single act of misconduct constituted cruelty and that wife failed to present sufficient evidence to corroborate her allegation of cruelty. Thus, husband concludes, the trial court erred in granting wife a divorce on the ground of cruelty. We disagree.
Code § 20-91(A)(6) authorizes a divorce from the bond of matrimony on the ground of cruelty. "[T]he misconduct [that] will form a good ground for [divorce] must be very serious and such as amounts to extreme cruelty, entirely subversive of the family relations rendering the association intolerable." Zinkhan v. Zinkhan, 2 Va. App. 200, 209, 342 S.E.2d 658, 663 (1986). The long-established rule is that "the cruelty that authorizes a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe." Latham v. Latham, 71 Va. (30 Gratt.) 307, 320-21 (1878). Moreover, "a single act of physical cruelty will constitute grounds for divorce if it is so severe and atrocious as to endanger life [or] it indicates an intention to do serious bodily harm." Davis v. Davis, 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989). "[B]efore a spouse may obtain a divorce, he or she must prove the grounds therefor and no complaint for divorce shall be defaulted, taken for confessed, or granted upon the pleadings or upon uncorroborated testimony." Clark v. Clark, 11 Va. App. 286, 296, 398 S.E.2d 82, 88 (1990) (citing Code § 20-99).
We view the evidence, and all reasonable inferences flowing from the evidence, in a light most favorable to wife, the party who prevailed below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to `discard the evidence' of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)).
So viewed, the evidence presented at trial proved that, on October 15, 2003, husband returned home about 10:00 p.m. and told wife he was leaving her. After an argument, husband chased wife upstairs. When wife threw husband's clothes, telling him to take his clothes and leave, husband picked wife up and threw her across the bed. Wife landed on the floor "between the bed and the nightstand," severely injuring her neck. Because of her injuries, including the inability to chew, wife went to the hospital the next day. X-rays revealed that wife had suffered a fractured jaw. Wife was also found to have sustained a neck sprain and bruising and swelling in her neck, shoulder, and jaw as a result of the assault. After the hospital staff reported wife's injuries to the police, husband was arrested and charged with assault and battery. Husband eventually pled nolo contendere to the charge, admitting there was sufficient evidence to find him guilty, and the juvenile and domestic relations district court entered a protective order against him.
In addition, wife's friend Marsha Clements testified at trial that she saw wife on October 16, 2003, "the day after the assault," and observed bruising on her jaw, neck, and shoulder. Clements further testified that wife "was having difficulty talking" and was in obvious pain. Clements encouraged wife to seek medical treatment.
We conclude that husband's picking wife up and throwing her across the bed and onto the floor causing her to sustain serious injuries was conduct "so severe and atrocious as to endanger life" and "indicate[d] an intention to do serious bodily harm." Davis, 8 Va. App. at 15, 377 S.E.2d at 642. Accordingly, we hold that husband's "single act of physical violence" against wife constituted cruelty. Id.
We further conclude that wife presented sufficient evidence to corroborate her allegation of cruelty. As our Supreme Court has stated:
It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. Any other rule would deprive the testimony of the complaining spouse of any practical effect. The general rule is that where a particular fact or circumstance is vital to complainant's case, some evidence of the same, in addition to the complainant's own testimony, is essential. The main object of the provision of the statute requiring corroboration is to prevent collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight.
Graves v. Graves, 193 Va. 659, 662-63, 70 S.E.2d 339, 340 (1952). Here, there is no appearance in the record of collusion between the parties. The testimony of wife's friend regarding the visible injuries sustained by wife corroborated wife's testimony regarding the essential fact that husband committed an act of physical violence against wife that caused her serious bodily harm. Accordingly, the testimony of wife's friend was sufficient to satisfy the corroboration requirement.
We hold, therefore, that the trial judge did not err in granting wife a divorce on the ground of cruelty.
"In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). Such an award "will not be reversed `unless it appears from the record that the [trial judge] has abused his discretion, that he has not considered or misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict of the equities.'" Hart v. Hart, 27 Va. App. 46, 53, 497 S.E.2d 496, 499 (1998) (quoting Robinette v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633 (1990)). "[A] trial court `by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting ...
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