COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Kelsey and Alston
Argued at Richmond, Virginia
CHARLES GOODWIN JORDAN
MEMORANDUM OPINION * BY
v. Record No. 0698-11-2 JUDGE LARRY G. ELDER
JUNE 26, 2012
ELAINE RICHARDSON JORDAN
FROM THE CIRCUIT COURT OF HANOVER COUNTY
J. Overton Harris, Judge
Brandy M. Poss (Lawrence D. Diehl; Barnes & Diehl, P.C., on
briefs), for appellant.
Charles E. Powers (Terrence R. Batzli; Batzli Wood & Stiles, P.C.,
on brief), for appellee.
Charles Goodwin Jordan (husband) appeals from a final decree granting him a divorce from
Elaine Richardson Jordan (wife). Upon the trial court’s recertification of the statement of facts,1
husband contends the trial court erred in (1) granting wife’s motion to strike the evidence relating to
husband’s allegations of adultery and desertion; and (2) declining to award husband spousal
support. We hold the trial court did not err in limiting the evidence concerning wife’s alleged
adultery and that the evidence supports the trial court’s finding that husband has not established his
need for spousal support. Accordingly, we affirm the final decree of divorce.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Husband’s first assignment of error alleged that the trial court improperly certified
husband’s written statement of facts as incomplete without providing husband notice or an
opportunity for a hearing. Upon consideration of this assignment of error, we remanded the
matter to the trial court to resolve any discrepancies in the statement of facts and provide the
parties with an opportunity to be heard on that issue. Having received the trial court’s amended
written statement of facts and the transcript from the relevant hearing, we grant the parties’
request to move forward with husband’s remaining assignments of error.
I.
BACKGROUND
“We review the evidence in the light most favorable to . . . the party prevailing below and
grant all reasonable inferences fairly deducible therefrom.” Anderson v. Anderson, 29 Va. App.
673, 678, 514 S.E.2d 369, 372 (1999). So viewed, the evidence establishes that husband and wife
married in October 1981. On March 13, 2009, husband filed for divorce on the grounds of wife’s
adultery and desertion and requested spousal support. Wife denied the allegations of adultery and
asserted she had legal justification for leaving the marital residence based upon “fear[ of] further
mental and physical harm to herself.” On March 8, 2010, wife filed a motion to strike the “evidence
in support of [husband’s] affirmative grounds for divorce and request for spousal support,”
contending husband “has failed to establish a prima facie case for either” adultery or desertion.
The trial court heard argument on March 11, 2010. Wife argued her suspicious conduct
could be explained by her attorney/client relationship with the alleged paramour and that husband
had not provided any evidence refuting her explanation. Wife asserted that “the discovery in this
case is complete.” In response, husband argued that wife’s motion to strike was premature because
he had not finished presenting his evidence. Husband further characterized wife’s motion to strike
as a motion for summary judgment, which the trial court lacked authority to grant under Rule 3:20.
On March 23, 2010, the trial court issued a letter opinion that concluded husband “lacks
sufficient evidence to prove adultery by the requisite standard of clear and convincing evidence”
and “a prima facie case for divorce based upon the ground of adultery does not exist, even when all
reasonable doubts as to the sufficiency of the evidence are resolved in favor of [husband].” The
trial court further found that husband’s “acts of physical abuse” provided wife with “sufficient
legal justification [to] excuse the alleged desertion.” Husband endorsed the accompanying order
and objected on the grounds that Rule 3:20 did not permit the relief granted, husband was not
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permitted to call witnesses to testify in person, and the trial court did not rule on wife’s assertion
of privilege in response to certain questions.
On October 27, 2010, the trial court conducted a hearing to determine the grounds for
divorce, equitable distribution of the marital estate, spousal support, and attorney’s fees. In a
letter opinion, the trial court granted the parties a no-fault divorce on the basis that they lived
separate and apart for a period exceeding one year under Code § 20-91(A)(9)(a). The trial court
also distributed the parties’ assets. In a separate letter opinion regarding spousal support, the
trial court “consider[ed] the circumstances and factors which contributed to the dissolution of the
marriage,” as well as “the factors set forth in Virginia Code § 20-107.1(E).” In pertinent part,
the trial court found that husband had not established a need for spousal support and therefore
denied his request. The trial court entered a final decree of divorce that memorialized its
findings on March 9, 2011.
This appeal follows.
II.
ANALYSIS
A.
AUTHORITY TO GRANT MOTION TO STRIKE
Husband argues Rule 3:20 prevented the trial court from granting wife’s motion to strike the
evidence relating to husband’s allegations of adultery and desertion. Husband equates wife’s
motion to strike the evidence with a motion for summary judgment and reasons that because
summary judgment is not available in an action for divorce, the trial court was prohibited from
granting wife’s motion to strike husband’s complaint for divorce on the grounds of adultery and
desertion. Husband further reasons that a motion for summary judgment, which resolves only
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questions of law, is an improper vehicle to challenge an allegation of adultery, which is a question
of fact.
Rule 3:20 provides that “[a]ny party may make a motion for summary judgment at any time
after the parties are at issue, except in an action for divorce or for annulment of marriage.” To
support his position, that the trial court erred in granting wife’s motion to strike, husband cites
Costner v. Lackey, 223 Va. 377, 381, 290 S.E.2d 818, 820 (1982) (per curiam), for the proposition
that a “motion to strike is in effect a motion for summary judgment.” Husband takes this principle
out of context. “[S]ummary judgment is a drastic remedy which is available only where there are
no material facts genuinely in dispute.” Turner v. Lotts, 244 Va. 554, 556, 422 S.E.2d 765, 766
(1992). By contrast, a motion to strike tests the legal sufficiency of a pleading to determine whether
the litigant has made a prima facie case. See Chaplain v. Chaplain, 54 Va. App. 762, 773, 682
S.E.2d 108, 113 (2009). Finding that no dispute of material fact exists is not the same as
“‘accepting as true all evidence favorable to a plaintiff and any reasonable inferences that may be
drawn from such evidence.’” Volpe v. City of Lexington, 281 Va. 630, 639, 708 S.E.2d 824, 828
(2011) (quoting TB Venture, LLC v. Arlington Cnty., 280 Va. 558, 562-63, 701 S.E.2d 791, 793
(2010)). Indeed, a “‘motion for summary judgment is . . . not intended as a substitute for a
demurrer, a demurrer to the evidence or a motion to strike.’” Goode v. Courtney, 200 Va. 804,
807-08, 108 S.E.2d 396, 399 (1959) (quoting Carwile v. Richmond Newspapers, Inc., 196 Va. 1,
5, 82 S.E.2d 588, 590 (1954)).
Here, the trial court viewed the evidence in the light most favorable to husband and
concluded that the evidence was insufficient to support husband’s allegations of adultery and
desertion. Husband does not contest these findings. Further husband cites to no authority, and
we have found none, that prohibits a trial court from granting a motion to strike the evidence
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regarding one facet of the divorce proceedings. We therefore hold that Rule 3:20 did not
preclude the trial court from granting wife’s motion to strike the evidence.
B.
SUBMISSION OF THE EVIDENCE
Husband next argues the trial court erred in granting wife’s motion to strike the evidence
relating to his allegations of adultery and desertion because such a ruling was premature.
Husband contends he had not concluded presenting his evidence and, if allowed to continue the
hearing, he would have presented the testimony of himself and wife to support his allegations of
adultery and desertion. To support his argument, husband points to the deposition testimony
considered by the trial court, which anticipated the use of the evidence in a later proceeding.
At the March 11, 2010 hearing, the parties agreed that the trial court would consider the
depositions taken on January 4, January 6, February 15, and February 19, 2010. 2 At husband’s
depositions, he described the circumstances leading to the dissolution of the marriage, including an
incident of alleged physical abuse on October 24, 2008, that led to wife’s leaving the marital
residence. At wife’s depositions, wife described her version of the events as well as the relationship
with her alleged paramour. When husband’s counsel questioned wife about her interactions with
her alleged paramour, wife invoked attorney/client privilege and her Fifth Amendment privilege
against self-incrimination. Wife explained that her alleged paramour was her client at the time and,
therefore, that she could not discuss any specifics of their conversations. Husband contested the
veracity of this claim by questioning why wife spent over four hours with her client but only
billed him for an hour and a half. Throughout her depositions, wife reiterated that her relationship
2
“No motion for summary judgment or to strike the evidence shall be sustained when
based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the
action shall agree that such deposition may be so used.” Rule 3:20 (emphasis added); see also
Code § 8.01-402; Rule 4:7(e).
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with her alleged paramour was strictly work-related and the frequency of her communications with
him was due to the nature of her work. These depositions contain no physical or direct evidence of
wife’s alleged adultery.
At the March 11, 2010 hearing, husband proffered that he intended to call wife to the stand
and question her regarding several phone calls and conversations that were supposedly work-related
but never billed. Husband explained, “I want Your Honor to listen when [wife] gets up there and I
ask her the question. And I want you to listen as to whether she pleads the Fifth for something that
happened more than a year ago, which I don’t think is appropriate or when she asserts attorney
client privilege.” Husband further alluded to “other witnesses” who would testify at a later
proceeding. The trial court took these matters under advisement and set the matter for trial on
March 25, 2010. 3
Husband relies exclusively on a footnote in Rouse v. Great Atlantic & Pacific Tea Co.,
216 Va. 293, 294 n.1, 217 S.E.2d 891, 892 n.1 (1975), which states the trial court “should have
allowed the plaintiff to complete his case in chief” and should not have “sustained the motions to
strike the evidence and entered summary judgment after only the plaintiff and a medical witness
had testified.” However, the Court in Rouse further noted that
[a]ny possible error is rendered harmless in this instance, . . .
because as the result of a stipulation at the bar of this Court we are
able to consider all of the additional evidence which the plaintiff
would have offered had he been permitted to complete his case.
Such additional evidence is contained in discovery depositions
which are a part of the record before us.
Id. We must therefore determine whether husband’s proffered evidence, when viewed in
conjunction with the deposition testimony, meets the elevated standard of proving adultery under
the harmless error analysis.
3
It appears that this hearing was canceled, and the matter was rescheduled for October
27, 2010.
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“One who alleges adultery has the burden of proving it by clear and convincing
evidence.” Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987). “[E]ven
strongly suspicious circumstances are not enough to establish adultery.” Painter v. Painter, 215
Va. 418, 420, 211 S.E.2d 37, 38 (1975). A “credible explanation” that demonstrates “‘the
relationship or living arrangement between [the spouse and the alleged paramour] was for
economic benefit or personal convenience’” undermines an allegation of adultery. Hughes v.
Hughes, 33 Va. App. 141, 150, 152, 531 S.E.2d 645, 649-50 (2000) (quoting Gamer v. Gamer,
16 Va. App. 335, 340, 429 S.E.2d 618, 622 (1993)).
When it plainly appears from the record and the evidence
given at the trial that the parties have had a fair trial on the merits
and substantial justice has been reached, no judgment shall be
arrested or reversed . . . [f]or any . . . defect, imperfection, or
omission in the record, or for any other error committed on the
trial.
Code § 8.01-678; see Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001)
(establishing Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), as
the standard for nonconstitutional harmless error).
Assuming without deciding that the trial court erred in granting wife’s motion to strike
prior to the conclusion of husband’s case-in-chief, we hold that any such error was harmless
because husband’s proffered evidence does not indisputably refute wife’s credible explanations
for her suspicious conduct. Observing wife’s demeanor as she asserted her Fifth Amendment
right against self-incrimination would not compel the rejection of her plausible explanation that
her relationship with her alleged paramour was strictly professional. Wife explained her
numerous invocations of attorney/client privilege stemmed from her advocacy of her alleged
paramour’s business interests as the attorney for his company. Husband had the responsibility to
demonstrate how the trial court’s ruling on wife’s motion to strike was premature and prejudiced
his right to a fair trial. The trial court had ample evidence from the exhaustive depositions, and
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husband’s proffered evidence is legally insufficient to compel a finding that wife committed
adultery. We therefore hold that the trial court did not commit reversible error in granting wife’s
motion to strike the evidence prior to the conclusion of husband’s case-in-chief.
C.
ASSERTION OF PRIVILEGE
Throughout her depositions, wife invoked attorney/client privilege and her Fifth
Amendment right against self-incrimination in response to several questions from husband’s
counsel regarding the alleged affair. Wife explained that because her alleged paramour was her
former client and all of their interactions revolved around work, she was unable to provide
details as to their conversations. Counsel for husband objected to wife’s invocations, stating that
the parties would address wife’s “objections and insertion of the Fifth Amendment . . . at the
hearing.” However, the trial court did not issue a ruling regarding wife’s assertion of privilege in
the March 23, 2010 letter opinion or the order striking the evidence.
Husband argues the trial court erred in granting wife’s motion to strike before issuing a
ruling on whether wife could rely on attorney/client privilege to prevent her from providing details
of her interactions with her alleged paramour. Husband contends the trial court’s failure to rule on
these privilege issues “improperly prohibited [him] f[r]om presenting all his evidence.”
Although husband asserts that the trial court “needed to rule on [wife’s] assertion of
privilege before ruling on the Motion to Strike,” the record contains no order conveying an
adverse ruling. Because husband “did not obtain a ruling from the trial court on his pretrial
motion, ‘there is no ruling for [this Court] to review’ on appeal, and his argument is waived
under Rule 5A:18.” Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263
(2010) (quoting Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993)).
Further, the record does not contain a basis for husband’s objection to wife’s assertions of
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privilege. “A general argument or an abstract reference to the law is not sufficient to preserve an
issue.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en
banc); see Delaney v. Commonwealth, 55 Va. App. 64, 67, 683 S.E.2d 834, 835-36 (2009)
(noting that the defendant’s “statement of facts . . . [was] devoid of any indication as to what
arguments and objection were presented to the trial court”). Because the record does not contain
an adverse ruling with regard to wife’s assertion of attorney/client or Fifth Amendment privilege
or indicate the basis of husband’s objection to wife’s assertion of privilege, we cannot consider
his argument on appeal.
D.
SPOUSAL SUPPORT
Husband argues that because the trial court ultimately erred in granting wife’s motion to
strike the evidence relating to his allegations of adultery and desertion, we must remand to the
trial court the issue of whether husband is entitled to spousal support. Husband maintains that
any grounds for divorce must be considered along with the other factors in Code § 20-107.1.
The trial court “in determining whether to award support and maintenance for a spouse,
shall consider the circumstances and factors which contributed to the dissolution of the marriage,
specifically including adultery and any other ground for divorce under the provisions of
subdivision (3) or (6) of § 20-91 or § 20-95.” Code § 20-107.1(E). “[W]here there is no bar to
the right of spousal support,” a spouse is “entitled to an award of spousal support to the extent
the factors in Code § 20-107.1 support[] such an award.” Bacon v. Bacon, 3 Va. App. 484, 491,
351 S.E.2d 37, 41 (1986). Husband premises his argument on the assumption that upon remand
to reconsider husband’s allegations of adultery and desertion in light of the proffered evidence,
the trial court will reverse its previous decision, thereby entitling husband to spousal support. In
other words, husband challenges not the trial court’s decision itself but the procedural errors
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accompanying the decision. Because we hold that any procedural error committed by the trial
court was harmless, we need not remand the matter to the trial court for this purpose.
E.
ATTORNEYS’ FEES
Both husband and wife request attorneys’ fees and costs related to this appeal. On
consideration of the record before us, we hold that “the litigation addressed appropriate and
substantial issues and that neither party generated unnecessary delay or expense in pursuit of its
interests.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004).
Accordingly, we deny their requests for an award of attorneys’ fees and costs they incurred on
appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
III.
CONCLUSION
We hold the trial court did not err in granting wife’s motion to strike husband’s complaint
for divorce on the grounds of adultery and desertion. Rule 3:20, by its plain terms, permits a trial
court to grant a party’s motion to strike the evidence relating to an incident of a divorce
proceeding. Further, assuming without deciding that the trial court erred in granting wife’s
motion to strike before husband finished presenting evidence, such error was harmless. In
addition, husband waived his objection based on wife’s assertion of privilege because the record
does not contain an adverse ruling on this issue. Finally, because we find no error in the order
granting wife’s motion to strike, we decline husband’s request to remand the matter to reconsider
spousal support. For these reasons, we affirm the final decree of divorce.
Affirmed.
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