Rowand v. Rowand

• Citation: 210 S.E.2d 149,215 Va. 344
• Parties: Dale F. ROWAND v. Cassandra N. ROWAND.
• Decision Date: 02 December 1974
• Court: Virginia Supreme Court

Page 149

210 S.E.2d 149

215 Va. 344

Dale F. ROWAND v. Cassandra N. ROWAND.

Supreme Court of Virginia.

Dec. 2, 1974.

William B. Smith, Virginia Beach (Owen, Guy, Rhodes & Betz, Virginia Beach, on brief), for appellant.

Grover C. Wright, Jr., Virginia Beach, for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice:

In this divorce case, the wife, Cassandra N. Rowand, was awarded a decree A mensa alimony of one dollar per month, custody and support of her minor child, and counsel fees of $550.00. The husband, Dale F. Rowand, is here complaining of the decree insofar as it awarded the wife a divorce, alimony, and counsel fees.

The present proceeding was instituted upon the filing by the wife of a bill of complaint praying for divorce on the grounds of cruelty and desertion. The husband did not file a cross-bill but answered denying the wife's allegations and asking that her bill be dismissed.

The evidence shows that the parties were married October 2, 1969. A daughter was born of the marriage on January 21, 1971. The parties separated September 5, 1972.

Prior to the separation, difficulties had arisen between the parties concerning financial matters. Approximately August 15, 1972, a quarrel occurred when the wife refused to deposit her paycheck in a joint account. The husband told the wife: 'Well, if you're not going to put your check in, then get out.' The husband telephoned the wife's parents, stating he was 'kicking her out' and inquiring whether they had a place she 'could sleep.' Following a conversation with her mother, the wife 'gave (the husband her) check and stayed.'

On September 5, 1972, another argument took place. This time, the dispute involved the wife's insistence that she purchase shoes and clothing for herself and shoes and medicine for the child before contributing to the joint account. The husband told the wife, 'Well, if that is the way you are going to be about it, get out.' The wife then 'got a few things together' and, with the child, went to her parents' home, where she remained until she secured an apartment for herself and the child.

The foregoing is all the corroborated evidence tending to support the chancellor's finding that the wife was entitled to a divorce 'on the grounds of constructive desertion.' While the wife testified that the husband had 'grabbed (her) by the arm and (had thrown her) toward the front door' during the argument in August, 1972, and that he had struck her 'once before,' this testimony was not corroborated and cannot be considered. Code § 20--99. So the real question here is whether the evidence of the husband's statements to the wife to 'get out,' unaccompanied by sufficiently corroborated evidence of other acts contributing to cause her departure, justified the award of divorce to the wife on the ground of the husband's constructive desertion.

Our research has disclosed several Virginia divorce decisions involving a demand by one spouse that the other 'get out,' but in each instance the demand was accompanied by other acts of the offending party which contributed to cause the marital breach. See, e.g., Carter v. Carter, 199 Va. 79, 97 S.E.2d 663 (1957), and Davenport v. Davenport, 106 Va. 736, 56 S.E. 562 (1907). In none of the cases was a divorce awarded upon the basis of such a demand alone. We are unwilling to extend the law to recognize as a ground for divorce a bare demand to 'get out,' given the admonition that courts should not sever marriage bonds merely because husband and wife, through lack of patience or uncongenial natures, cannot live happily together. Butler v. Butler, 145 Va. 85, 88, 133 S.E. 756, 757 (1926).

We hold, therefore, that the wife was not entitled to a divorce on the ground of constructive desertion by the husband. It does not...