Divorce Lawyers Attorney

Virginia Norfolk City Desertion Divorce Lawyers Attorney - By: Atchuthan Sriskandarajah



KATHERINE O'BRIEN SMITH v. HARRY LEE SMITH, JR.
Supreme Court of Virginia
September 2, 1960

Facts:

This suit was instituted by the appellant, Katherine Anne O'Brien Smith, against her husband, Harry Lee Smith, Jr., alleging that he had been guilty of cruelty and desertion, had refused to support her and their children and establish a home for them. She prayed for a separation, not a divorce, and for support for herself and the children. The couple lived in Puerto Rico while the husband was in the army. The wife was hospitalized after an epileptic seizure rendered her unconscious. Her mother testified that the husband telephoned her in Norfolk and told her to come and get his wife or the army would put her in a straitjacket. The parents brought her and the children back to Norfolk and the husband did not see them for three years. He withdrew all of the money in the couple's joint bank account and failed to pay support. The trial court found that the wife failed to show that the husband had constructively deserted her by virtue of cruelty but that her failure to return to her husband upon recovery from her illness was desertion.

Issue:

Whether the trial court had erred in granting the divorce on the ground of desertion of the wife?

Discussion:

This court held that the parties' separation when the wife returned to Norfolk not only was with the husband's acquiescence and consent; but also, was at his request. He did not prove her intent to desert him. Therefore, the husband was not entitled to the divorce and the wife did not forfeit her right to reasonable support and maintenance, which continued until he showed that she had deserted him. The complainant did not thereby forfeit her right to reasonable support and maintenance, which right continues to exist until it is shown that she has in fact hereafter deserted him by refusing to live with him without just cause. The proper amount to be allowed for her support and for the support of the children should be determined by the court below upon evidence as to the situation and circumstances of the parties at the time of such hearing.

Conclusion:

This court hence reversed the decree appealed from so far as it grants a divorce to the defendant and denies support and maintenance to the complainant. The divorce so granted to the defendant is annulled, and the cause is remanded to the court below with direction to hear evidence and fix a reasonable amount which the defendant shall pay for the support and maintenance of his wife and children.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content



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Virginia Albemarle County Separation Agreement Reconciliation Lawyers Attorney - By: Atchuthan Sriskandarajah



VIRGINIA K. YEICH v. LLOYD GEORGE YEICH
COURT OF APPEALS OF VIRGINIA
December 18, 1990, Decided

Facts:

Virginia Klumpp Yeich and Lloyd George Yeich were married on December 30, 1977. Because they had considerable assets and each had previously been divorced, they entered into a premarital agreement. The couple experienced marital problems, they separated and signed a separation agreement hereinafter referred to as the "1983 agreement". In this agreement, the parties agreed to waive all support and maintenance payments from each other. The parties reconciled, but the wife subsequently brought a divorce action against the husband. The husband filed a motion to establish the validity of the divorce decree, and the trial court granted the motion, awarding no http://lynchburgvirginiadivorcelawyer.com/" target="_blank" title="Virginia Page County Divorce Lawyers">alimony to the wife. Plaintiff wife challenged a judgment of the Circuit Court of Albemarle County (Virginia) entering a divorce in her action against defendant husband and establishing the validity of a previous separation agreement entered into by the parties.

Issues:

Whether the reconciliation between the parties abrogated the 1983 agreement in whole or in part?

Whether the trial court erred in excluding certain letters between the parties concerning their intent in regard to the 1983 agreement?

Discussion:

This court held that the provision in the agreement whereby the wife waived all right to spousal support, an executory provision, was abrogated by the reconciliation. the 1983 agreement stated that the parties intended to live separate and apart on a permanent basis. The agreement also provided that there would be no support payments made in the future. The provision waiving the right to support was, necessarily, executory. Therefore, under the rule that reconciliation abrogates executory provisions, this portion of the agreement was nullified. Since the agreement concerning alimony was abrogated upon reconciliation, Mrs. Yeich may obtain alimony when suing for divorce. We, therefore, reverse the trial court's ruling declaring the 1983 agreement valid and ratifying and incorporating the 1983 agreement into its decree.

This court held that the trial court did not err in excluding certain letters between the parties concerning their intent in regard to the 1983 agreement. Since it is decided that the "factual proof of intent" doctrine is not the law in Virginia, the exclusion of the letters was harmless error because the legal effect of reconciliation is not determined by the intent of the parties. Therefore this court reverses the decree of the trial court declaring the 1983 agreement valid and remands to the trial court for further proceedings in accordance with this opinion.

Conclusion:

This court hence reversed the judgment establishing the validity of the separation agreement in the divorce action between the husband and wife and remanded to the trial court for further proceedings.

Disclaimer:

These summaries are provided by the http://lynchburgvirginiadivorcelawyer.com/" target="_blank" title="Virginia Patrick County Divorce Lawyers">SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content


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Virginia Roanoke County Divorce Insanity Lawyers Attorney - By: Atchuthan Sriskandarajah



Oakey Horsley Gearheart v. Alfred Clarence Gearheart
CIRCUIT COURT OF ROANOKE COUNTY, VIRGINIA
March 24, 1967

Facts:

The parties have lived separate and apart since the year 1941; that prior thereto the husband, who had been committed to a mental institution as an insane person, about thirty-four years ago, came home on a furlough, and in 1941 tried to kill the complainant and was sent back to Western State Hospital and has remained there ever since. The husband had been committed to a mental institution as an insane person for over two years. Plaintiff wife filed an action for divorce against defendant husband.

Issue:

Whether a http://hamptonvirginiadivorcelawyer.com/" target="_blank" title="Virginia Portsmouth County Divorce Lawyers">divorce can be granted under Section 20-91(9) of the 1950 Code of Virginia, where one of the parties is insane?

Discussion:

This court held that under Va. Code Ann. § 20-91(9) (1950) a divorce could be granted where one of the parties was insane. Under § 20-91(9), fault in bringing about the separation was not material insofar as the granting of the divorce was concerned. Section 20-91(9) did not make any exceptions as to why the parties had lived separate and apart without any cohabitation and without any interruption for two years. Section 20-91(9) granted a divorce to either spouse when they had lived separate and apart without interruption for two years regardless of fault, on the theory that society would be better served by terminating marriages in law that had ceased to exist in fact. Va. Code Ann. § 20-93 indicated a legislative intent to relax the former strict rule that insanity at any time would bar the obtaining of a divorce.

Conclusion:

This court hence decreed that the divorce be granted.

Disclaimer:

These summaries are provided by the http://hamptonvirginiadivorcelawyer.com/" target="_blank" title="Virginia Suffolk County Divorce Lawyers">SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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Virginia Northumberland County Will Execution Divorce Lawyers Attorney - By: Atchuthan Sriskandarajah



ALICE CLAYTON PAPEN, INDIVIDUALLY, ETC., ET AL. v. MARIE-BERTHE PAPEN
Supreme Court of Virginia
April 23, 1976

Facts:

The husband executed a will, bequeathing the husband's entire estate to the wife. Thereafter, the husband and the wife divorced, but the husband failed to change the will. Following the husband's death, the wife attempted to recover the bequest. When the trial court held the divorce had revoked the will under § 64.1-59, the wife sought review, claiming § 64.1-59 did not control because it had not been enacted until after the divorce. Appellant wife sought review of a judgment from the Circuit Court of Northumberland County (Virginia). Upon review, the wife claimed § 64.1-59 could not revoke the will because the statute had been enacted after the divorce.

Issue:

Whether a will executed by a married man was revoked by the provisions of Code § 64.1-59 (Repl. Vol. 1973),enacted after his http://hamptonvirginiadivorcelawyer.com/" target="_blank" title="Virginia Accomack County Divorce Lawyers">divorce but before his death?

Discussion:

This court rejected the contention that because the divorce had been obtained before § 64.1-59's effective date, revocation was to be determined by the law in effect at the time of the divorce. In holding that the will's revocation depended entirely upon § 64.1-59, the court interpreted the statute and found it applied to wills executed and divorces obtained before, as well as after, the statute's effective date. This court held that Code § 64.1-59 applies to wills executed and divorces obtained before, as well as after, the effective date of the statute. Therefore, because of Papen's divorce, the Papen will was revoked by operation of Code § 64.1-59.

Conclusion:

This court hence affirmed a judgment which statutorily revoked the husband's will because of the husband's divorce, notwithstanding that the statute had been enacted after the divorce.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content



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Virginia Clarke County Involuntary Separation Divorce Lawyers Attorney - By: Atchuthan Sriskandarajah



Stella Chapman Sealock v. Howard Lee Sealock
CIRCUIT COURT OF CLARKE COUNTY, VIRGINIA
January 13, 1971

Facts:

The defendant in this divorce suit was sentenced to the penitentiary for statutory rape in the early 1950's. In 1963 while he was a parolee, apparently for the second time, from this sentence, he and the complainant were married. In 1967 he was reincarcerated for parole violation. More than two years after this reincarceration and while it continued to exist, the complainant instituted this suit praying for divorce on the ground stated in § 20-91(9), Code 1950 as amended. Presumably, at the time of marriage, the complainant knew of the defendant's previous conviction, or at least there is no allegation to the contrary, nor is the divorce sought on the ground of Section 20-91(4) where prior to marriage, a party without the knowledge of the other has been convicted of an infamous offense.

Issue:

Whether involuntary separation for a period greater than two years without cohabitation and without interruption affords ground for divorce under Section 20-91(9)?

Discussion:

This court held that the complainant is entitled to a divorce on the ground of this separation. This court held that when the legislature reduced the separation period between spouses to a period of two years, then in the repeal of the two-year fugitive provision, its intent became clear that this type of separation was to be includable as a separation contemplated under Va. Code § 20-91(9) which served as grounds for divorce. Therefore, no policy ground existed for not also so including a separation of the required physical characteristics which was occasioned by the culpability of the husband resulting in his reincarceration for a serious criminal offense for which he was convicted and sentenced, albeit before marriage and with the knowledge of his wife.

Conclusion:

This court hence accepted the proof provided by the wife that she had valid grounds to accept the proof provided by the wife that she had valid grounds to parole violation.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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Virginia Richmond City Divorce Decree Adultery Lawyers Attorney - By: Atchuthan Sriskandarajah



WILMOT THEODORA TARR, JR. v. BESSIE SARAH TARR
Supreme Court of Virginia
October 8, 1945

Facts:

The wife filed a bill seeking to set aside and vacate the divorce decree entered on the ground of her adultery. The wife alleged that she had not contested the divorce suit because the husband led her to believe that the suit would be withdrawn and also alleged that she had sexual intercourse with the husband during the pendency of the suit. The trial court entered a decree setting aside and vacating the divorce decree and also awarding support and maintenance for the wife and child. Respondent husband sought review of a decree from the Law and Equity Court of the City of Richmond (Virginia), which set aside and vacated the decree of divorce, declared that complainant wife was the husband's lawful wife, and declared that the child was the legitimate offspring of that union. The wife cross-appealed as to the amount of the trial court's award for support and maintenance.

Issue:

Whether, in obtaining his decree for divorce, the husband perpetrated a fraud upon the court and upon his wife?

Discussion:

This court found that the husband had led the wife into a position of false security and concealed their true relations from the trial court and the court affirmed the trial court's decree. This court held that before Tarr was free to contract a second marriage, he, due to his breach of the moral code, was confronted by the demands of two women, each of whom, to his knowledge, was with child by him. As soon as the legal restrictions were removed, he elected to marry the second woman. This change in his status was occasioned by his own acts and by his own incontinence. It was not caused by the delay in bringing this suit. This court determined that the wife had an absolute defense to the divorce proceedings. This court found that the wife had reasonable grounds to believe that it was unnecessary for her to appear and make defense. This court rejected the husband's claim that the wife was guilty of laches in bringing the suit. This court found that the husband's second wife and child were not necessary parties. This court also found no reversible error with respect to the support and maintenance award.

Conclusion:

This court hence affirmed the trial court's decree, which set aside and vacated the decree of divorce, declared that the wife was the husband's lawful wife, declared that the child was the legitimate offspring of that union, and awarded support and maintenance. This court amended the trial court's decree to include the additional compensation allowed the wife's counsel. This court remanded the case for such further proceedings as were authorized by law.


Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content


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Virginia Divorce Adultery Custody Best Interest Lawyers Attorneys - By: Atchuthan Sriskandarajah



FACTS:

Appellant wife and appellee husband separated and instituted a divorce proceeding. The domestic relations court initially entered a custody order granting sole custody of the children to appellant. Another judge in the same court later granted appellee sole custody of the children because appellant lived in a house with a man to whom she was not married. On appeal to the circuit court, the trial judge awarded sole custody to appellee. The court reversed that decision and returned custody to appellant. The trial court subsequently ruled orally that he was granting appellee a divorce on the ground of adultery. Appellee then petitioned for a change in custody. The trial court granted the petition. Appellant sought review.

ISSUE:

The issue here is whether adultery, not a new circumstance since the earlier order, constituted a change in circumstances for modifying an order of custody.

DISCUSSION:

The trial court erred as a matter of law in granting a change in custody based on changed circumstances because no new facts were proved in the most recent custody hearing that showed any change in appellant's living arrangements, and the court was reversing the final decree of divorce in which the trial court made the finding of adultery. In matters concerning custody and visitation, the welfare and best interests of the child are the "primary, paramount, and controlling considerations." The authority vested in a trial judge to decide issues concerning the care and custody of children, the visitation rights of the non-custodial parent, and the extent to which those rights and responsibilities shall be apportioned between estranged parents is a matter of judicial discretion which courts must exercise with the welfare of the children as the paramount consideration. This best interests standard applies both to an initial determination regarding custody and to any subsequent requests for modification of custody. The party seeking to modify an existing custody order bears the burden of proving that a change in custody is appropriate. The test to be met has two prongs: first, has there been a change in circumstances since the most recent custody award; second, would a change in custody be in the best interests of the children.

JUDGMENT:

The court reversed the trial court's order granting appellee husband's petition for a change of custody and dismissed the petition, holding that the trial court erred as a matter of law in finding a material change in circumstances because no new facts were proved that showed any change in appellant's living arrangements, and the court had reversed the final divorce decree in which the trial court made the finding of adultery.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content


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Virginia Divorce Adultery Child Custody Lawyers Attorneys - By: Atchuthan Sriskandarajah




Walter Amacker v. Marianne Amacker
CIRCUIT COURT OF HENRICO COUNTY, VIRGINIA

FACTS:

The husband initiated a divorce action against the wife citing adultery as the reason for divorce. The husband also filed a petition asking the trial court to consider custody of the parties' children. The trial court awarded custody to the wife, and the husband sought review.

Issue:

The issue here is whether adultery by one of the parents is a factor to be considered ion awarding child custody.

DISCUSSION:

In all custody cases, the controlling consideration was always the child's welfare. The court held that in considering the best interest of the child, it was required to consider all the facts, including what effect a nonmarital relationship by a parent had on the child. The court found that the moral climate in which the child was to be raised was an important consideration in determining custody. Court found no substantial or significant difference between these parents with respect to their love for the children, the manner of their general care for the children and the physical adequacy of the home of each. And, as also has been noted, the bottom line for decision in each case is what is in the best interest of the child and its welfare. Because the wife's affair continued after the divorce and adversely affected the children, the court determined that the husband was to have custody, with visitation to the wife. The court reversed the order of the trial court.

JUDGMENT:
The court reversed the order of the trial court, which awarded custody of the parties' children to the wife, and granted custody to the husband with visitation to the wife.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content



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Virginia Divorce Willful Desertion Constrictive Desertion Lawyers Attorneys - By: Atchuthan Sriskandarajah




PATSY ANNE EAKIN WILLIAMS v. JAMES MICHAEL WILLIAMS
COURT OF APPEALS OF VIRGINIA
October 28, 2003, Decided

Facts:

Plaintiff wife filed a suit for divorce from defendant husband on the grounds of willful desertion, constructive desertion, and cruelty. The husband demurred to the wife's amended bill of complaint, asserting the wife failed to state a cause of action for a divorce from bed and board on the ground of cruelty. The Circuit Court of Roanoke County, Virginia, sustained the demurrer. The wife appealed.

Issue:

Whether the trial court erred in sustaining husband's demurrer?

Discussion:

The court noted that, in reality, there were only two grounds for a divorce from bed and board, desertion and cruelty. Mental anguish and repeated and unrelenting neglect and humiliation could constitute cruelty. On the other hand, a fault-based divorce could not be based on light or transient transgressions or because the parties could not live happily together. The appellate court held the wife only alleged facts showing that she and her husband could not live together happily, and that was not sufficient to sustain a suit for divorce on the ground of cruelty. Further, the wife failed to state a case of willful desertion, because she failed to plead facts that established her husband had the requisite intent to desert. Finally, the wife's claim of constructive desertion dissipated without evidence of cruelty. The judgment of the trial court, sustaining the husband's demurrer, was affirmed.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content


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