Does evidence of a man’s nighttime visits to wife’s apartment and his leaving in the early morning hours after kissing and embracing her in the doorway support grounds of adultery for a Virginia divorce?
Not in the case of Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865 (1981) , where the Supreme Court of Virginia reversed the trial court’s ruling that the private investigator’s testimony was sufficient proof of adultery and justified changing child custody from the wife to the husband.
The Dooley case concerned a marriage of five years, a relatively short duration marriage even for our times, by experienced spouses; this was the wife’s third marriage and the husband’s second. The parties had one minor child, along with minor and adult children from prior marriages. The wife initiated divorce proceedings with a complaint for a divorce from bed and board on the grounds of constructive desertion – which has been defined in Virginia as consisting of a withdrawal from, or the willful breach or neglect of, significant marital duties, including sexual intercourse, without justification, without an actual desertion by the guilty spouse in leaving the marital residence. Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719 (1987) . The husband responded with an answer denying the grounds and requesting child custody. The wife was awarded pendente lite relief consisting of child custody, temporary child support and temporary spousal support. A year later, the wife moved the court for leave to amend her complaint to add the no fault grounds of a one year separation. The husband was later granted leave to file his cross bill for divorce based on the one year separation of the parties. His cross bill also alleged numerous acts of marital fault as support for a denial of permanent support to the wife. The case was referred to commissioner in chancery for fact findings.
The commissioner in chancery reported that the wife was eligible for divorce on a fault or no fault basis, that the wife should be awarded custody of the minor child, and that spousal support should be reserved but not awarded at present due to the financial circumstances of the parties. The husband filed exceptions to commissioner’s report, which the Virginia Circuit Court judge sustained, overruling the report. The trial court judge found sufficient evidence of adultery, denied spousal support to the wife, and awarded custody of the minor child to the husband due to the immoral environment presented by the wife’s adulterous lifestyle. The wife appealed, challenging the sufficiency of the evidence of adultery, the denial of spousal support and the award of child custody to the husband due to her alleged adultery.
The Supreme Court of Virginia reversed the trial court judge’s decisions. The appellate court noted the high basic guidelines for proving adultery, citing Colbert v. Colbert, 162 Va.393, 400, 174 S.E. 660, 662 (1934): “To establish the charge of adultery the evidence must be full and satisfactory the judicial mind must be convinced affirmatively. The proof should be strict, satisfactory and conclusive.” The court also cited Haskins v. Haskins, 188 Va. 525,530-31, 50 S.E.2d 437, 439 (1948), where it quoted the following with approval: “A charge of adultery is one of a criminal offense and especially and uniquely damaging to the reputation of the party charged. The general and widely recognized presumption of innocence must be indulged against it, and, while it is not required to be proved beyond a reasonable doubt, as in a criminal proceeding, the evidence must be at least clear and positive and convincing. Raising a considerable or even strong suspicion of guilt is not enough.”
In this case, the evidence of adultery was entirely circumstantial and the adulterous conduct had been explained by the wife. The husband had hired a private investigator, who testified that he had observed a man who visited the wife several times at night. Although he could not observe what was happening in the wife’s apartment, he did observe the wife and the man embracing and kissing at the door as the man left in the early morning hours. He also testified that a male neighbor had visited the wife’s apartment several times at nighttime. The husband’s previous attorney testified at the commissioner’s hearing that he had dated the wife after withdrawing from representation of the husband, and that he had fallen asleep on the couch at her apartment. He further testified that the wife had covered him with a blanket and he later awoke and left the apartment in the early morning hours. Later, the wife had invited the husband’s previous attorney to visit her while on vacation at a beach hotel. The wife explained these events as post-separation dating, in particular, dinner dates, and testified that she was never with another man while living with her husband. She testified that the husband’s prior divorce lawyer and she had separate motel rooms while on vacation.
The Supreme Court of Virginia recognized that the standard of review was whether under a correct application of the law, a review of the evidence supported the commissioner’s findings or the court’s conclusions. In Dooley, the appellate court sided with the commissioner as the evidence of wife’s behavior, while certainly suspicious in certain instances, did not meet the standard of being clear, positive and convincing evidence of adultery. According to the norms of that time, the court noted that the conduct might have been innocent and not adulterous. The case was remanded to the trial court for a reconsideration of the denial of spousal support and the change in custody from the wife to the husband based on the erroneous conclusion of adultery. One of the justices dissented and would have upheld the trial court’s decision under the standard of review that it was not plainly wrong.
You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss whether there may be sufficient evidence of adultery in your divorce case.