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Giraldi v. Giraldi

Court of Appeals of Virginia

May 5, 2015

DAVID KENNETH GIRALDI
v.
EVA MARIA GIRALDI

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY. Joseph J. Ellis, Judge.

Reversed and remanded.

Page 688

Charles E. Powers (Batzli Stiles Butler PC, on brief), for appellant.

Eva Maria Giraldi, Pro se.[1]

Present: Judges Beales, AtLee and Senior Judge Haley.

OPINION

Page 689

[64 Va.App. 679] RANDOLPH A. BEALES, JUDGE

On August 11, 2014, the circuit court entered a final decree of divorce between David Kenneth Giraldi (husband) and Eva Maria Giraldi (wife), in which it awarded husband a divorce a vinculo matrimonii from wife on the ground of adultery. On appeal, husband raises two assignments of error. First, husband argues that the circuit court erred by awarding a reservation[2] of spousal support to wife because there was not clear and convincing evidence -- based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties -- to support a finding that denial of a reservation of spousal support to wife would constitute a manifest injustice. Second, husband contends that the circuit court erred when it allowed wife's counsel to elicit evidence of condonation and when it indicated that it would consider such evidence when deciding whether to grant wife a reservation of the right to spousal support.[3] For [64 Va.App. 680] the following reasons, we reverse the circuit court and remand this case to the circuit court for entry of an order removing wife's reservation of spousal support from the divorce decree.

I. Background

Under settled principles of appellate review, we view the evidence in the light most favorable to wife, as the party prevailing below, Chretien v. Chretien, 53 Va.App. 200, 202, 670 S.E.2d 45, 46 (2008), and we

Page 690

grant wife " all reasonable inferences fairly deducible therefrom," Anderson v. Anderson, 29 Va.App. 673, 678, 514 S.E.2d 369, 372 (1999). In this case, the parties were married in December of 1999, and they separated in May of 2012. At trial, wife admitted to having an affair with Jose Acanda-Montano from January of 2011 until June of 2011. Acanda-Montano, who testified at trial, corroborated wife's admission of adultery. Acanda-Montano testified that he began to have sexual intercourse with wife in January, 2011. According to wife, she had the affair because she " never felt [she] had a husband." She testified that husband was " a very good provider" but that " there was no emotional support." Wife went on to testify that husband would frequently travel out of town for business, but stay beyond the date the business trip ended. According to wife, when husband was home during the week he would simply " go to work, come home, eat dinner, go upstairs."

Husband also testified about the state of his marital relationship. According to husband, he and wife argued frequently. Their breakdown in communication was severe enough that, if husband had on his pajamas during the argument, he would walk to the walk-in closet and say he was putting on his clothes so he could leave. According to husband, wife would [64 Va.App. 681] then shut the closet door and hold husband hostage in the closet. During one of those incidents, wife put her hand in between the closet door and the door frame and slammed it about three or four ...


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