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STEWART WAYNE DAVIS v. DONNA JEAN MOONEY DAVIS

8 Va. App. 12

 Stewart filed an answer and cross-bill. He admitted the parties had lived separate and apart since April 10, 1986, but denied all other allegations of the bill of complaint. In his cross-bill he alleged that Donna had willfully deserted him on April 10, 1986, and requested that the court grant him a bed and board divorce based upon the ground of desertion. Donna filed an answer to the cross-bill denying the allegation of desertion.  The Circuit Court of the City of Portsmouth granted wife a final divorce on the ground that the parties lived separate and apart for one year, refused to grant husband a divorce on the ground of desertion, and awarded appellee spousal support and attorney fees.

Whether the trial court erred in granting the wife a final divorce on the ground that the parties lived separate and apart for one year and in refusing to grant the husband a divorce on the ground of desertion?

Whether the trial court erred in awarding the wife spousal support in the amount of $ 200 monthly?

Whether it was error to award the wife attorney’s fees in the amount of $ 3,500?

Whether the trial court erred in granting the wife a final divorce on the ground that the parties lived separate and apart for one year and in refusing to grant the husband a divorce on the ground of desertion?

Upon our review of the record, we agree that the wife was guilty of desertion on April 10, 1986, when she left the home, and the husband was entitled to a divorce from bed and board on the ground of desertion.  However, that on April 26, 1986, while the parties were living separate and apart, the husband shot the wife in the back.  The husband’s shooting of the wife was reprehensible and unwarranted. It was so severe and atrocious that it endangered her life and caused her to sustain serious and permanent injuries. The wife’s bill of complaint alleged the act of shooting on April 26, 1986, and prayed for a divorce on the ground of cruelty. We hold that this single act of physical violence constituted cruelty for which a bed and board decree could be decreed under Code § 20-95.

The court finds that the facts supported the conclusion that the wife deserted the husband on April 10, 1986. We further find that the wife was entitled to a bed and board divorce decree on the ground of cruelty as of April 26, 1986, because of the husband’s shooting assault.

Whether the trial court erred in awarding the wife spousal support in the amount of $ 200 monthly?

The court finds that the husband does not challenge the amount of the award. He was not entitled to a fault based divorce. The right to spousal support is not affected by an award of a no-fault divorce; a party’s duty of support is affected only upon a finding of fault on the part of the other party.  Therefore the trial court did not err in awarding the wife spousal support in the amount of $ 200 monthly

Whether it was error to award the wife attorney’s fees in the amount of $ 3,500?

We have already decided the fault issue adversely to the husband’s position.

Accordingly this court affirmed the judgment of the trial court.

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

Originally published here.

The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.