Zinkhan v. Zinkhan

• Citation: 342 S.E.2d 658,2 Va.App. 200
• Decision Date: 15 April 1986
• Docket Number: No. 0817-85,0817-85
• Parties: Benjamin Christian ZINKHAN v. Linda Palmer ZINKHAN. Record
• Court: Virginia Court of Appeals

Page 658

342 S.E.2d 658

2 Va.App. 200

Benjamin Christian ZINKHAN v. Linda Palmer ZINKHAN.

Record No. 0817-85.

Court of Appeals of Virginia.

April 15, 1986.

Frankie C. Coyner, Stuarts Draft, for appellant.

Alvin B. Marks, Jr. (Poindexter, Burns, Marks & Massie, Waynesboro, on brief), for appellee.

Present: COLEMAN, MOON and COLE, JJ.

COLE, Judge.

The issues raised in this appeal are: (1) whether the chancellor committed error when he failed to grant appellant, Benjamin Christian Zinkhan (husband), a divorce on the grounds of desertion; and (2) whether he committed error when he awarded spousal support to the appellee, Linda Palmer Zinkhan (wife).

On July 25, 1983, husband filed a bill of complaint against wife alleging that she deserted him without just cause on September 6, 1982. He asked the court to award him a divorce from bed and board and to award him a final decree of divorce from the bond of matrimony upon expiration of the statutory period provided in Code § 20-91(6).

Wife filed an answer denying that she had deserted husband. She also filed a cross-bill alleging that on September 6, 1982, husband was guilty of constructive desertion, causing her to leave their home. She asked that she be awarded a divorce from bed and board from husband on the ground of constructive desertion; that she be awarded a final divorce from the bond of matrimony upon elapse of the statutory period of time; that she be awarded custody of their child, Laura D. Zinkhan, and maintenance and support for the child; that she be awarded spousal support, attorney's fees and court costs; and that the court make an equitable distribution of the parties' marital property.

On November 1, 1984, the chancellor entered a decree granting a final divorce from the bond of matrimony to husband on the ground that the parties had lived separate and apart without any cohabitation and without interruption for one year pursuant to Code § 20-91(9)(a). In addition to the usual jurisdictional findings of fact, the court found that neither party had sustained the burden of proof to establish grounds of divorce against the other, but made no adjudication with respect to its finding that neither party was guilty of fault that would entitle the other to a divorce. Instead, pursuant to an agreement between the parties, the cause was continued on the court's docket for further consideration of the issues in accordance with Code §§ 20-107.1, 20-107.2 and 20-107.3. We interpret this action by the trial court as an express reservation of all of the issues that could arise under the specified code sections, including fault and spousal support, since under both Code §§ 20-107.1 and 20-107.3, fault is a consideration. Thomasson v. Thomasson, 225 Va. 394, 397 n. 1, 302 S.E.2d 63, 65 n. 1 (1983); Gagliano v. Gagliano, 215 Va. 447, 452, 211 S.E.2d 62, 66 (1975); Losyk v. Losyk, 212 Va. 220, 222-23, 183 S.E.2d 135, 137 (1971); D'Auria v. D'Auria, 1 Va.App. 455, 460, 340 S.E.2d 164 (1986).

Additional evidence was presented to the court upon the financial issues remaining in the case and on May 24, 1985, the court entered a final decree in the cause. The court settled the question of marital property, granted custody of the child to wife and ordered husband to pay child support. These rulings are not contested in this appeal. The court ordered husband to pay to wife spousal support in the amount of $50 per week and whether wife is entitled to support is the dominant issue raised on appeal.

The parties were married on September 4, 1972. They had a child that was stillborn on October 1, 1974, and their present child, Laura D. Zinkhan, was born on May 26, 1979. The death of the first child was a traumatic event for both parents and was particularly upsetting and disturbing to wife. Laura was born in 1979, and husband states that the trouble in the marriage commenced after the birth of the child. He also contends that his wife's mother was spending the winter months with them and took over the home after the birth of the child. He claims that when he would come home from work, invariably his wife would be at her mother's home, which was located nearby. Due to the conflict with the mother-in-law, the parties separated in June of 1981, when wife moved from the family home into her mother's home. The parties reconciled in October of 1981, when wife agreed to return upon the condition that the home, which husband owned before the marriage, be placed in their joint names. This was done.

Husband contends that conditions did not improve after the reconciliation and that "there wasn't no room for a man in her life but her mother and the child." Husband further contends that for several months prior to their separation on September 6, 1982, she was spending six nights a week at her mother's house and one at home. On September 6, 1982, while husband was at work, wife moved her belongings out of the home and moved to the home of her mother.

Husband's testimony was corroborated by several witnesses who testified that they observed nothing unusual in the Zinkhan household; that they were never seen fighting; that they never saw any excessive drinking; that no difficulties were observed prior to the time that wife moved out of the home; that the Zinkhans were good neighbors; that neither did anything to embarrass the other; and that they observed nothing that would indicate that husband neglected wife or failed to provide for his wife and child.

Wife testified that her mother spent winters in their home, with the agreement of husband, because of inadequate heating in the mother's home. Wife's complaints against husband centered around three areas: (1) he wanted sex too frequently; (2) he went fishing too frequently; and (3) he "hammered" on her, asking her to leave the home.

While both parties complained about the frequency of sex, the evidence does not suggest anything approaching an assault; all sexual relations were consensual. Wife complained because husband fished too much, but the record does not disclose any neglect of wife because of his fishing which would legally justify leaving the marital relationship. When they were first married, wife participated in this recreational activity, but as time passed she declined to go fishing with him.

Wife claimed that husband "hammered" or beat upon her, asking that she leave the home. No specific dates or occasions were shown and there was no complaint concerning this in the immediate time frame of the separation on September 6, 1982. Wife's allegations were general in nature and vague as to time and place.

A divorce from the bond of matrimony may be decreed where either party has willfully deserted or abandoned the other, and such divorce may be decreed to the innocent party after a period of one year from the date of such act. Code § 20-91(6). "Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete." Nash v. Nash, 200 Va. 890, 893, 108 S.E.2d 350, 352 (1958) (quoting Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 47 (1871)); see also Miller v. Miller, 196 Va. 698, 700, 85 S.E.2d 221, 222 (1955). In the absence of justification apparent from plaintiff's own evidence, proof by plaintiff of an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, entitles a deserted party to a divorce. When such desertion is established, the duty of going forward with evidence of justification and excuse then rests on the defendant, unless such justification appears from testimony adduced by the plaintiff. Graham v. Graham, 210 Va. 608, 610, 172 S.E.2d 724, 726 (1970); D'Auria v. D'Auria, 1 Va.App. 455, 459, 340 S.E.2d 164 (1986).

In the present case, the evidence clearly establishes that on September 6, 1982, wife moved from the family home at a time when husband was at work, taking her clothing and belongings with her, with the intent on her part to break off matrimonial cohabitation with husband, and with intent to desert him. The duty of going forward with her evidence to excuse or justify her actions then rested upon the wife.

To constitute a defense to the husband's prima facie showing of desertion, the wife must prove misconduct on the part of the husband sufficient in scope to constitute a ground of divorce in her favor against the husband. The Supreme Court has consistently held that one spouse is not justified in leaving the other unless the conduct of the wrongdoer could be made the foundation of a judicial proceeding for divorce. Nothing short of such conduct will justify a willful separation or a continuance of it. Guy v. Guy, 210 Va. 536, 539, 172 S.E.2d 735, 738 (1970); Wimbrow v. Wimbrow, 208 Va. 141, 143, 156 S.E.2d 598, 601 (1967); Lawyer v. Lawyer, 207 Va. 260, 264, 148 S.E.2d 816, 819 (1966); Stolfi v. Stolfi, 203 Va. 696, 701, 126 S.E.2d 923, 927 (1962); Gentry v. Gentry, 161 Va. 786, 791, 172 S.E. 157, 158 (1934); Towson v. Towson, 126 Va. 640, 655, 102 S.E. 48, 53 (1920).

As her defense, wife contends that under the circumstances she was justified in leaving her husband on September 6, 1982, because his cruel treatment was tantamount to desertion. She argues that this constructive desertion on the part of husband is a defense to his bill of complaint and constitutes grounds for a final divorce on her cross-bill. Acknowledging in her brief that the Supreme Court has held that one spouse is not justified in leaving the other unless the conduct of the other is sufficient to establish a foundation of a judicial proceeding for divorce, she cites Rowand v. Rowand, 215 Va. 344, 210 S.E.2d 149 (1974), Capps v. Capps, 216 Va. 382, 219 S.E.2d 898 (1975), and Breschel v. Breschel, 221 Va. 208, 269 S.E.2d 363 (1980), as authority for her claim that even though she cannot show that...