Appeal from a judgment of the Circuit Court of the City of Virginia Beach. Hon. Henry L. Lam, judge presiding.
Cochran, J., delivered the opinion of the Court.
In this appeal, we determine whether an act of sexual intercourse between husband and wife during the pendency of their divorce case requires that a suit for divorce on the ground of desertion be dismissed.
On September 27, 1978, Mary F. Petachenko filed a bill of complaint in the trial court seeking a divorce from her husband, Gregory C. Petachenko, on the grounds of constructive and actual desertion. Gregory filed an answer and cross-bill seeking a divorce on the ground of desertion. The trial court ordered Gregory to pay to Mary specified attorney's fees and costs and spousal support of $250 per month pendente lite.
The matter was referred to a commissioner in chancery, who heard the testimony of witnesses in September and November 1981. The evidence established that the parties were married on August 31, 1963, and that no children were born of the marriage. Mary moved from the marital home into an apartment, under a one-year lease, about August 31, 1978, but the parties attended marriage counseling sessions from time to time until the spring or summer of 1980. Mary testified, and Gregory denied, that she cooked for him in his home 20 to 25 times between September 1978 and August 1980. Mary testified, and Gregory conceded,
that in June or July 1980 she spent a night in his home and they engaged in sexual intercourse. Mary testified, and Gregory denied, that they had also had intercourse in his home once in May 1979. Mary conceded that she had not been in Gregory's house since August 1980.
At the conclusion of the evidence, Mary moved to amend her bill to allege voluntary separation for 12 months in lieu of desertion. The commissioner took the motion under advisement.
In September 1982, the commissioner filed his report finding that Mary had deserted Gregory on September 2, 1978, without justification, and that they had not cohabited since that time. The commissioner recommended that Mary's bill be dismissed, that Gregory be granted a divorce, and that no spousal support be awarded. Mary filed exceptions to the commissioner's report.
By final decree entered April 15, 1983, the trial court stated that it appeared that the parties had "copulated during the pendency of these proceedings [thereby] destroying the jurisdiction" of the court to continue with the case. The court therefore dismissed Mary's bill of complaint and Gregory's cross-bill and ordered Gregory to continue payment of spousal support in the sum of $250 per month pending further order of the court.
There is ample evidence in the record to support the commissioner's finding that Mary deserted Gregory on September 2, 1978, without justification. It is apparent that the commissioner believed the testimony of Gregory relating to the facts in dispute and that the trial court dismissed the cause only on a conclusion of law. Accordingly, we will accept the facts as established by Gregory. The only question, therefore, is whether, because the parties engaged in a single act of sexual intercourse in 1980, the commissioner's finding that they had not cohabited after September 2, 1978, is contrary to the evidence.
Code § 20-95 provides that a divorce from bed and board may be decreed for "willful desertion or abandonment." Code § 20-91(6) provides for a divorce from the bond of matrimony on the same ground after a period of one year from the date of the desertion or abandonment. Under § 20-95, unlike § 20-91(6), no specific period is prescribed during which the desertion must continue to entitle a party to a divorce from bed and board. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 47 (1871).
[1-2] In the context of both these provisions, desertion is a breach of matrimonial duty -- an actual ...