Rexrode v. Rexrode

• Decision Date: 04 February 1986
• Docket Number: 0115-85,Nos. 0084-85,s. 0084-85
• Citation: 1 Va.App. 385,339 S.E.2d 544
• Parties: Irene Grace REXRODE v. Emanuel Dale REXRODE. Emanuel Dale REXRODE v. Irene Grace REXRODE. Record
• Court: Virginia Court of Appeals

Page 544

339 S.E.2d 544

1 Va.App. 385

Irene Grace REXRODE v. Emanuel Dale REXRODE.

Emanuel Dale REXRODE v. Irene Grace REXRODE.

Record Nos. 0084-85, 0115-85.

Court of Appeals of Virginia.

Argued June 26, 1985.

Decided Feb. 4, 1986.

Harry P. Anderson, Jr. (Anderson, Parkerson & Shields, on briefs), for Irene Grace Rexrode.

R. Toms Dalton, Jr. (Allen, Dalton & Watkins, on briefs), for Emanuel Dale Rexrode.

Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.

KOONTZ, Chief Judge.

This case involves an appeal and a cross-appeal from a divorce decree and an award of equitable distribution. The issues raised on appeal are: (1) whether the trial court erred in granting a divorce to the husband based on the wife's desertion; and (2) whether the trial court erred in its award of equitable distribution.

I.

Irene Grace Rexrode and Emanuel Dale Rexrode were married in 1975 and made their marital home in Augusta County. This was the second marriage for both parties. Husband had four children, ages 8 to 17, by his prior marriage living with him. There is considerable testimony in the record as to incidents of husband's behavior which can best be characterized as extreme rudeness towards wife and her relatives. Wife was humiliated and embarrassed by these incidents and consequently found the marital home to be an increasingly difficult environment in which to live. Nevertheless, she apparently worked diligently in making a home for her husband and his children.

Mrs. Rexrode became quite nervous and emotionally upset during the course of the marriage. The chancellor found that the cause of her psychiatric problem was not altogether clear:

There is no doubt that Mrs. Rexrode was unhappy in her marriage, and that the marriage had not been what she had expected. However, after reviewing the testimony of Dr. Spanier and Dr. Talbert, it appears that Mrs. Rexrode's main problems arose not from anything that occurred during the marriage, but from Mrs. Rexrode's fears concerning her ability to care for herself should she leave Mr. Rexrode and suffer adverse legal consequences. In addition, she appeared to be quite depressed over the fact that this was her second marriage to fail.

Mrs. Rexrode left the marital home periodically when she became nervous and emotionally upset and sought medical attention from her physician for this condition. She returned to the marital home on all occasions except the last one. This last incident of her leaving is the basis of this case.

On October 23, 1983, Mrs. Rexrode entered a psychiatric hospital in Richmond under the care of Dr. Spanier. The parties did not resume cohabitation after this date. Mrs. Rexrode maintains that she sought psychiatric care from Dr. Spanier and had no intention of deserting her husband. Mrs. Rexrode's Bill of Complaint was filed on November 28, 1983, during her hospitalization in Richmond which lasted until December 8, 1983. Dr. Spanier testified in pertinent part in his deposition that:

her main problem seemed to be a feeling of hopelessness and being overwhelmed in the marriage, that she described as being one in which she seemed to be very much victimized and she had a feeling of powerlessness and a feeling of: "I'm unhappy here but I'm terrified of leaving him because I'm afraid of what is going to happen and I am afraid I won't be able to stand up on my own and I am afraid of what could happen to me in court."

Dr. Spanier further testified that other factors considered by him in prescribing her treatment were the recent deaths of her brother, mother and sister, who had been supportive of her. Dr. Spanier concluded that it was not in her best interest to resume her marital status with Mr. Rexrode.

Based on the depositions of the parties and their witnesses, the trial court granted Mr. Rexrode a divorce based on the desertion of Mrs. Rexrode. The trial court further determined that Mrs. Rexrode did not have justification for leaving the marital home and that Mr. Rexrode was not guilty of constructive desertion. We find no error in these decisions of the trial court.

The rule is firmly established in Virginia that a divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard ore tenus, but such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence. Capps v. Capps, 216 Va. 382, 384, 219 S.E.2d 898, 899 (1975).

There was extensive conflicting testimony in the depositions presented by both parties and their witnesses as to the relationship between husband and wife and the situation as it existed in the marital home. The chancellor resolved that conflict in favor of Mr. Rexrode. There is no dispute that Mrs. Rexrode left the marital home and subsequently, while she remained hospitalized in Richmond, filed her Bill of Complaint alleging constructive desertion by reason of cruelty. Dr. Spanier's testimony is equivocal as to the cause of her emotional difficulties and his testimony supports the chancellor's conclusion that her emotional difficulties "arose not from anything that occurred during the marriage, but from her fears concerning her ability to care for herself should she leave Mr. Rexrode and suffer adverse legal consequences." In addition to these fears, she understandably suffered the emotional strain of the loss of close family members in recent years.

A spouse may not break off cohabitation and successfully claim constructive desertion unless the other's conduct is sufficient to establish the foundation of a divorce proceeding.

Breschel v. Breschel, 221 Va. 208, 212, 269 S.E.2d 363, 366 (1980). While the conduct of Mr. Rexrode can be characterized as rudeness, resulting in Mrs. Rexrode's unhappiness, the evidence does not establish that it was the cause of her emotional difficulties.

A spouse may be free from legal fault in breaking off cohabitation, and hence entitled to support and maintenance, even though she cannot establish that the other spouse's conduct constituted the foundation of a proceeding for divorce. See Capps v. Capps, 216 Va. 382, 385, 219 S.E.2d 898, 900 (1975); Rowand v. Rowand, 215 Va. 344, 346, 210 S.E.2d 149, 151 (1974). Consistent with these cases, the Supreme Court in Breschel held that "a wife is free from legal fault in leaving her husband where she reasonably believes her health is endangered by remaining in the household and she has unsuccessfully taken whatever reasonable measures might eliminate the danger without breaking off cohabitation." 221 Va. at 212, 269 S.E.2d at 366. The chancellor correctly distinguished the facts in Breschel from those in the present case on the issue of reasonable measures to eliminate the danger without breaking off cohabitation. The Rexrodes had separated on several occasions in the past and Mr. Rexrode had successfully persuaded Mrs. Rexrode to return to the marital home. Counseling was discussed but neither party pursued it. Coupled with the uncertainty of the real cause of Mrs. Rexrode's emotional difficulties and the lack of evidence of reasonable efforts on her part to eliminate any undesirable conduct on the part of Mr. Rexrode, we hold that the chancellor did not err in finding that the evidence failed to establish justification for Mrs. Rexrode's leaving. Consequently, since the evidence supports the chancellor's finding that Mr. Rexrode is entitled to a divorce on the grounds of desertion, she is not entitled to support and maintenance.

II.

We turn now to a review of the trial court's award of equitable distribution. By order of December 28, 1984, the chancellor denied spousal support to both parties, awarded Mrs. Rexrode one half of the equity of the marital home, held that a Dupont Credit Union savings account was the separate property of Mr. Rexrode and, finally, held that the tangible property acquired during the marriage "should be divided equally between the parties." We limit our review here to the chancellor's determination that the Dupont Credit Union savings account is the separate property of Mr. Rexrode in the context of the court's total equitable distribution award. ¹ The statutory scheme of Code § 20-107.3 requires, however, that this review not be made in a vacuum but rather in relation to and in accordance with all of the provisions of this code section.

The depositions of the parties support a conclusion that Mr. Rexrode had initiated the Dupont Credit Union savings account with his employer prior to the marriage and that he contributed to this account during the marriage. Mr. Rexrode testified that at the time of the marriage this account contained savings of $13,000, a part of which was used to purchase the marital home during the marriage. He further testified that during the marriage he made deposits from his income into this account and that the Credit Union made payments "on the house payment and the electric bill." Mrs. Rexrode made no monetary contributions to this particular account, but she claims to have made other payments from her income which benefited the parties.

The determination of property as separate or marital is controlled by statutory definition. Separate property as defined in Code § 20-107.3(A)(1) is:

(i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; and (iii) all property...