Hughes v. Hughes

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia

RUTH BOYD HUGHES
OPINION BY
v. Record No. 1259-99-2 JUDGE JAMES W. BENTON, JR.
AUGUST 1, 2000
RICHARD LEE HUGHES

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge

T. Lee Brown, Jr. (Parker, Pollard & Brown,
P.C., on brief), for appellant.

Denis C. Englisby (Englisby & Englisby, on
brief), for appellee.

The trial judge granted Richard Lee Hughes a divorce based

on a finding that his wife, Ruth Boyd Hughes, had committed

adultery. The wife contends the evidence does not support the

finding and that the judge erred by not granting a divorce on

the ground of a continuous one year separation. She also

contends the trial judge erred in considering as evidence in the

divorce case his impressions of evidence given in the separate

custody proceeding. We reverse the trial judge's decree and

remand for further proceedings upon the allegation that the

parties have continuously lived apart for one year.

∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
 I.

The wife filed a bill of complaint for divorce on the

ground that she and the husband had lived separate and apart for

one year. The bill of complaint noted that the juvenile court

was "currently exercising jurisdiction over the issues of child

support, custody and visitation" and made no claim for relief

for those issues. By a cross-bill, the husband alleged

desertion and adultery. The wife denied the allegations and

answered that she fled from the marital residence to escape

severe mental and physical abuse, which ultimately required her

to obtain a protective order against the husband.

At trial, the evidence was presented by deposition only.

In her deposition, the wife testified that upon leaving the

marital residence, she and her children lived with her family

for about a month until they had to move because it had "gotten

a little crowded." After that, she stayed at the YWCA Shelter

for abused women for a week while waiting for an opening at

another shelter-type facility, St. Joseph's Villa. While she

was in the YWCA Shelter, her children stayed with her friend and

co-worker, Michael Kopeski, because her parents could not take

the children. After a week, the wife and the children moved to

St. Joseph's Villa and remained there approximately five months.

The wife and the children then moved into Kopeski's residence.

The wife testified that she went to Kopeski's residence because

she had "nowhere to live." The wife testified that she earns

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$6.20 per hour, that she has a "hard time making it," and that

her mother "doesn't have the room or the finances" to allow the

wife and the children to reside with her.

The wife and Kopeski testified in their depositions that

they maintain separate bedrooms in Kopeski's residence.

Although they both acknowledged that they are in love with one

another, both also testified that they are not having sexual

intercourse. Kopeski testified that "[i]f it's the Lord's

blessing," he would like to marry the wife after her divorce.

In pertinent part, the trial judge ruled as follows:

In reviewing the argument of counsel and
the authorities cited in support of the
respective position of the parties, the
Court is of the opinion that adultery has
been proven by clear, positive and
convincing proof. In reaching this
conclusion, the Court has considered not
only the depositions submitted into evidence
on this issue, but in addition, the demeanor
of the [wife] during the course of an ore
tenus hearing conducted on September 19,
1997, [in the custody proceeding,] wherein
this Court awarded custody of the parties'
children, . . . to the [husband].

[The wife] has cohabited with . . .
Kopeski, . . . in an open and notorious
fashion for a considerable period of time
which predates the commencement of the
instant litigation. The Court, during the
ore tenus hearing conducted in [the custody
proceeding] on September 19, 1997, found the
testimony of the [wife] on this issue to be
inherently incredible. Furthermore, the
testimony of the [wife], as reflected in her
deposition . . . serves only to strengthen
the belief of this Court of the ongoing
nature of the adultery that has occurred in
this case.

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 Following the entry of the divorce decree, the wife

appealed.

II.

If the evidence proves that "multiple grounds for divorce

exist, the trial judge can use . . . sound discretion to select

the grounds upon which . . . to grant the divorce." Lassen v.

Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989). "A

trial [judge's] determination of matters [that lie] within [the

trial judge's] discretion is reversible on appeal only for an

abuse of that discretion." Farley v. Farley, 9 Va. App. 326,

328, 387 S.E.2d 794, 795 (1990). Furthermore, a trial judge's

factual finding will "not be set aside unless plainly wrong or

without evidence to support it." Id.

"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) (citation omitted). In

clarifying that burden, the Supreme Court has held that

"[s]trongly suspicious circumstances are inadequate" and that

"[c]are and circumspection should accompany consideration of the

evidence." Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37,

38 (1975) (citation omitted). This high standard of proof

serves a salutary purpose.

"A charge of adultery is one of a criminal
offense and especially and uniquely damaging
to the reputation of the party charged. The
general and widely recognized presumption of
innocence must be indulged against it, and,

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 while it is not required to be proved beyond
a reasonable doubt, as in a criminal
proceeding, the evidence must be at least
clear and positive and convincing. Raising
a considerable or even strong suspicion of
guilt is not enough. The test most
frequently reiterated (though by no means a
satisfactory yardstick) is that the proof
must be such as to lead the guarded
discretion of a reasonable and just man to
the conclusion of guilt."

Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d 437, 439

(1948) (citation omitted).

The wife contends she moved into Kopeski's residence

because of a lack of financial resources and that the husband

presented no evidence to corroborate his allegation that the

wife and Kopeski are engaged in a sexual relationship. She

argues that the finding of adultery was based on speculation.

The husband argues that although the wife and Kopeski both

deny having sexual intercourse, the following facts proved by

clear and convincing evidence that the wife has committed

adultery: the wife and Kopeski have lived in the same house and

not dated anyone else; they have told one another, "I love you";

they share meals and household chores; they occasionally go for

walks or to the movies; Kopeski testified that he is sexually

attracted to the wife; and the wife's mother testified that the

wife lives in Kopeski's home.

Although the trial judge found that the husband proved by

clear and convincing evidence that the wife committed adultery,

we agree with the wife's contention that the evidence did not

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clearly and convincingly support that finding. The evidence

undisputedly proved that when the wife was forced to leave the

marital residence, she and the children initially moved in with

her family. Her parents' financial and medical circumstances

caused her to leave and to enter a shelter. After she arranged

to move to another shelter, she moved there with her children.

Only after being in that shelter for five months did she move

into Kopeski's home.

The wife testified that she continued to live in Kopeski's

home because she has "nowhere to live." She testified that she

and the children have their own bedroom in the house. In light

of her difficult financial circumstances, the wife clearly had

few options. Obviously, a shelter is not the ideal place for

the wife, much less her children, to live. Moreover, the

husband presented no evidence that proved the wife moved into

Kopeski's residence for any reason other than her desperate

financial situation.

When asked if she could live with her mother, the wife

explained that she could not, because "[her mother] doesn't have

the room or the finances." She testified that both she and her

mother have a "hard time making it" financially. The wife also

testified that her mother's residence is "seventy-five miles"

from the wife's place of employment. The wife earns only $6.20

an hour and does not have health insurance. Kopeski does not

ask her to pay rent and only asks that she buy the groceries and

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assist with the phone bill. She testified that the rest of her

money goes to various expenses, such as "[h]ospital bills,

medical bills."

The wife and Kopeski consistently testified that they have

not had sexual intercourse. The husband presented no evidence

that proved otherwise. Neither the trial judge nor we can hold

as a matter of law that two people cannot live in the same

residence without engaging in sexual intercourse until marriage.

The evidence in this record "is not inconsistent with freedom

from actual guilt [of adultery]." Haskins, 188 Va. at 531, 50

S.E.2d at 440. Indeed, in reversing a trial judge's finding of

adultery in Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865

(1981), the Supreme Court ruled as follows:

While we agree that the behavior of the wife
in the case at hand, when read in connection
with all other evidence in the record,
creates suspicion as to her guilt on the
specific dates in issue, we do not believe
the evidence amounts to clear, positive and
convincing proof. "It creates grave
suspicion as to the intimacy. . . . Yet
when measured by the rules of human conduct
and experience as of this day and time, it
is not inconsistent with freedom from actual
guilt."

Id. at 246, 278 S.E.2d at 868-69 (citation omitted); see also

Cutlip v. Cutlip, 8 Va. App. 618, 619-21, 383 S.E.2d 273, 274-75

(1989).

In several cases involving far more evidence of suspicious

circumstances than in this case, the Supreme Court and this

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Court have held that the evidence was insufficient to prove

adultery. In Painter, the wife discovered white stains on the

husband's pants and underwear and found another woman's lipstick

on the husband's shirts. See 215 Va. at 420, 211 S.E.2d at 38.

She also discovered a note to him saying, "I need you so."

After she saw her husband in a car with another woman and

remonstrated with her, she hired private investigators, who

observed the husband "kissing and embracing [the woman] in her

automobile." The investigator saw the husband and the woman

drive separately to another city, meet in that city, enter the

woman's car, and drive away. They returned several hours later

and kissed in her automobile. On another occasion, the

investigator saw the husband's truck in front of the woman's

home at 11:55 p.m., with only a dim light in the living room. A

light in the bathroom twice was turned on and off. The

investigator saw the husband leave at 1:45 a.m. See 215 Va. at

419, 211 S.E.2d at 38. Although the Supreme Court noted that

the circumstances created "grave suspicion of an intimate

relationship," the Court held that "even strongly suspicious

circumstances are not enough to establish adultery." Id. at

420, 211 S.E.2d at 38.

Similarly, in Seemann, although the evidence proved "highly

suspicious circumstances," the Supreme Court held that it failed

to prove adultery. 233 Va. at 294, 355 S.E.2d at 886-87.

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 [The wife] testified that she had "strong
feelings" for [the other man] but denied
that they ever engaged in sexual
intercourse. While admitting that she and
[the other man] had slept in the same
bedroom, she said that they never slept in
the same bed. When she was asked why she
had not had sexual intercourse with [the
other man], [the wife] replied: "Because I
don't believe in it. It's not God's way.
God says no to it." When counsel suggested
that her denial was "rather incredulous,"
[the wife] responded: "I understand that, I
do. But that's why our relationship is so
special. I realize it's extremely hard to
believe in this day and time, but there are
people out there that have principles today;
Godly principles."

[The other man] expressed his love for [the
wife], but he also denied that they had
engaged in sexual intercourse. When he was
asked why they had not had sexual
intercourse, [the other man] answered:
"Because we just don't believe that that's
the way it should be. That's why she's so
special. That's why I spend the time I do
with her." In a similar vein, he added:
"She's that way. She has those beliefs, and
that's what I find so special about her."

Id. at 292-93, 355 S.E.2d at 885-86. Holding the evidence

failed to prove adultery, the Supreme Court ruled that this

testimony was not "incredible as a matter of law." Id. at 294,

355 S.E.2d at 887.

In Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 516 (1998),

the evidence also proved suspicious circumstances. After the

husband returned from extended military duty, he and the wife

moved into separate bedrooms. At 1:00 a.m. one morning, the

husband saw the wife and another man kissing in a parking lot.

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When the wife saw the husband, she quickly drove away. See 27

Va. App. at 90, 497 S.E.2d at 517. The wife hid telephone bills

showing calls made to the other man's residence. The wife also

used the other man's credit card. The husband found photographs

of the wife scantily dressed and posed in the other man's

residence and in his place of business. Although the other man

and the wife denied having sexual relations, the wife recanted

her denial and invoked the Fifth Amendment privilege against

self-incrimination. See id. at 90-91, 497 S.E.2d at 517-18. We

held that this evidence "created strong suspicion of an intimate

relationship," id. at 93, 497 S.E.2d at 519, but it was not

"'clear and positive and convincing' evidence, as required by

Haskins and its progeny, to support the charge of adultery."

Romero, 27 Va. App. at 94, 497 S.E.2d at 519.

Thus, in determining whether clear and convincing evidence

supports a finding of adultery, the Supreme Court and this Court

have consistently reviewed the record to determine not only

whether the evidence merely established suspicious conduct, but

also whether a credible explanation existed for the

circumstances. The husband relies on several cases in which the

Courts have found clear and convincing evidence of adultery.

This case, however, is entirely dissimilar from the adultery

cases upon which the husband relies. Those cases involved

covert meetings with individuals to whom the spouse was not

married, the evidence provided no reasonable explanation for the

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spouse's conduct, and the record contained ample corroborating

evidence of adultery. In Coe v. Coe, 225 Va. 616, 303 S.E.2d

923 (1983), for example, the trial judge found adultery was

established based on a private detective's testimony that on two

occasions in the middle of the night, he had observed the wife's

car outside the unlit apartment of another man and then saw her

leave early in the morning. See id. at 621-22, 303 S.E.2d at

926-27. In affirming the trial judge's finding, the Supreme

Court noted that the wife did not contradict or deny the

detective's evidence, no other witness contradicted or denied

that evidence, and the wife made "no attempt to explain her

relationship with [the man], or her presence in his unlighted

apartment on the two occasions testified to by the detective."

Id. at 622, 303 S.E.2d at 927.

Similarly, in Higgins v. Higgins, 205 Va. 324, 136 S.E.2d

793 (1964), the evidence proved that men visited the wife's home

late at night, where she was seen kissing various men and

"generally acting indiscreetly." Id. at 327, 136 S.E.2d at 795.

Accompanying police when they raided a motel, the husband found

his wife "and a man . . . occupying [a motel] room, both

scantily clothed in underwear." Id. They had consumed alcohol

in a room that "was in a used and rumpled condition." Id. The

Court noted that "[t]he record is replete with evidence that in

the husband's absence [the wife] kept company with men and at

various times was seen in compromising positions with them; that

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she consumed alcoholic beverages to an excess." Id. at 328, 136

S.E.2d at 796.

Noting the lack of any plausible explanation, the Court in

Higgins observed that the wife "attempted to explain that she

and [the man] had gone to the motel room for the purpose of

discussing some real estate business; that while there she had

decided to wash her hair after noticing that the motel had soft

water, and that this accounted for her unclad condition." Id.

at 327, 136 S.E.2d at 795. In attempting to explain why she

spent another night in a motel room with the same man, "she

[said she] was lonely and had gone to the room for the purpose

of 'crying on his shoulder.'" Id. at 327-28, 136 S.E.2d at

795-96. Given these circumstances of covert conduct and the

lack of a plausible explanation, the Court concluded "from the

cold print of the record, that [the wife] has been guilty of

infidelity." Id. at 328, 136 S.E.2d at 796. See also Derby v.

Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989) (holding that

the evidence proving adultery "was not refuted nor was it

inherently incredible").

Pertinent to this case, we noted in Gamer v. Gamer, 16 Va.

App. 335, 429 S.E.2d 618 (1993), that a significant

consideration that detracts from proof of adultery is a lack of

"evidence that the relationship or living arrangement between

[the spouse] and the [person with whom that spouse is allegedly

engaging in adultery] was for economic benefit or personal

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convenience or was other than amorous." Id. at 340, 429 S.E.2d

at 633. In Gamer, a trial judge granted a divorce on the ground

of one year's separation and found no adultery. See id. at 339,

429 S.E.2d at 622. We criticized that finding because the

evidence contained no explanation of the conduct. There, the

wife discovered the husband clad only in a robe and another

woman upstairs hiding in a closet of the master bedroom. In the

master bedroom, "the bed sheets were pulled haphazardly over the

bed and [the husband's] silk shorts were lying on the floor."

Id. at 338, 378 S.E.2d at 621. In addition, a detective

testified that later the husband and the other woman stayed

overnight at the Gamer home on several occasions. The evidence

proved that on that occasion the woman's clothing, shoes, and

other personal belongings were in the master bedroom. See id.

Focusing on the lack of credible evidence to explain why

the woman would be staying with the husband if not because she

was having an adulterous affair, we said the following:

Notwithstanding the weighty burden of proof
to establish adultery and the deferential
standard of appellate review, the
commissioner's findings and recommendation
disregarded the obvious. There was no
evidence that the relationship or living
arrangement between [the husband] and the
woman was for economic benefit or personal
convenience or was other than amorous.
Overwhelming evidence was introduced of [the
husband's] extramarital affair, and the only
evidence to the contrary was his less than
credible bare denial.

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Id. at 340, 429 S.E.2d at 622 (emphasis added). In affirming

that decision, we noted, however, that the absence of a finding

of adultery had no economic impact in that case and, therefore,

"the error was of no consequence." Id. at 340, 429 S.E.2d at

622.

The evidence in this record amply proved that the wife

moved into Kopeski's residence because of dire financial

circumstances after having subjected herself and the children to

living in a shelter for five months. The wife has not tried to

conceal the fact that she lives in the same house with Kopeski.

She has consistently denied that she and Kopeski are involved in

a sexual relationship. No evidence proved otherwise.

All that the evidence shows she has done, is
consistent with her innocence - not
innocence of suspicion, nor of imprudence,
nor of questionable conduct - but innocence
of adultery.

"In the social complex[,] men and women,
and their acts, short of downright
culpability, must be measured by the rules
which govern human conduct and which are
known to common observation and experience
as of today. Nothing in life is static.
What one generation condemns, a succeeding
one countenances. Habits, customs,
conditions, values, proportions, people
change. Only a few elements are 'the same,
yesterday, today and forever.' A great
thinker said that the most pathetic being is
a changeless person in a changing world.
The thought and the conviction is that,
however reprehensible the conduct of the
persons here concerned would have been held
to be a quarter of a century ago, today it
is accounted perfectly consistent with
purity of character and innocence of

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 criminality. Who can say else than that the
present order is an advance step toward a
larger measure of truth and justice."

Haskins, 188 Va. at 532, 50 S.E.2d at 440 (citation omitted).

The evidence in this record "fails to point with reasonable

certainty to a conclusion of [adultery] and leaves one groping

in the realm of surmise, conjecture, and speculation." Id. at

532, 50 S.E.2d at 440. Thus, the only reasonable conclusion to

be drawn is that "the evidence is not inconsistent with the

[wife's] innocence" of adultery. Cutlip, 8 Va. App. at 621, 383

S.E.2d at 275. Giving proper deference to the trial judge's

findings of fact, we, nonetheless, review the sufficiency of

that evidence as a matter of law. Upon our review, we hold

that, as a matter of law, the evidence is insufficient to

sustain the elevated burden of proof of adultery by clear and

convincing evidence.

III.

The wife contends the trial judge also erred in considering

his impression of her testimony in an ore tenus hearing, which

was held in the separate case concerning custody. The record

establishes that the parties presented evidence only through

depositions in the divorce proceeding. The trial judge's

opinion letter states that the judge weighed the wife's

credibility upon consideration of her testimony in the separate

custody proceeding. The trial judge's consideration of ore

tenus testimony given in another proceeding was erroneous.

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 "The general rule is that the court will not
travel outside the record of the case before
it in order to take notice of the
proceedings in another case, even between
the same parties and in the same court,
unless the proceedings are put in evidence.
The reason for the rule is that the decision
of a cause must depend upon the evidence
introduced. If the courts should recognize
judicially facts adjudicated in another
case, it makes those facts, though
unsupported by evidence in the case at hand,
conclusive against the opposing party; while
if they had been properly introduced they
might have been met and overcome by him."

Beanau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979)

(emphasis added) (citation omitted); see also Russell County

School Board v. Anderson, 238 Va. 372, 385, 384 S.E.2d 598, 605

(1989) (holding that "it was plain error for [the trial judge]

to go outside the record to find another reason to support [his]

decision").

IV.

For the foregoing reasons, we reverse the trial judge's

finding that the evidence proved clearly and convincingly that

the wife committed adultery. Accordingly, we remand this cause

to the trial judge for further proceedings upon the wife's

allegations that the parties have continuously lived apart for

one year.

Reversed and remanded.

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Coleman, J., dissenting, in part, and concurring, in part.

I believe the evidence supports the trial judge's factual

finding that Ruth Boyd Hughes committed adultery. In my

opinion, the majority substitutes its judgment for that of the

trial judge by making different factual findings and in giving

greater weight to certain evidence than did the trial judge when

deciding what inferences to draw from the evidence. In so

doing, the majority disregards a fundamental tenet of appellate

review -- that in reviewing a trial judge's decision based on

factual findings, we will "not . . . set aside [the judgment]

unless it appears from the evidence that such judgment is

plainly wrong or without evidence to support it." Code

§ 8.01-680.

Adultery must be proven by clear and convincing evidence.

Viewing the evidence and the inferences that a fact finder may

draw from that evidence, in my opinion, the evidence clearly and

convincingly supports the trial judge's factual finding that

Ruth Hughes committed adultery while cohabiting for more than a

year and one-half with Michael Kopeski.

The evidence proved that Ruth Hughes and her two children

moved in Michael Kopeski's home with him in December 1996 and

they have lived together continuously from that date through the

date of this appeal. Hughes and Kopeski acknowledged that they

love one another and plan to marry. Kopeski acknowledged that

he is sexually attracted to Ruth Hughes. Neither has dated

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anyone else during the time they have lived together. They have

taken trips together, including a trip for her to meet his

parents. They share the household chores and responsibilities.

The foregoing evidence is sufficient, in my opinion, to support

the finding by the trial judge that Ruth Hughes and Michael

Kopeski have cohabited together for years and have committed

adultery.

Although the record contains evidence which would support

the majority's contrary factual finding, such as the denial by

Hughes and Kopeski that they committed adultery and the fact

that Hughes initially had an economic reason for moving in with

Kopeski, the trial judge, in the exercise of his exclusive

authority, decided not to believe their denials or Hughes'

assertion. Rather, the trial judge drew the reasonable and

logical inference that two people who are in love and have

cohabited together for years have engaged in sexual intercourse.

We, as an appellate court, do not decide which version of facts

we find more plausible. Furthermore, were we permitted to do

so, I would reject the majority's reasoning that the evidence

did not prove adultery simply because it proved that Hughes

initially sought refuge with Kopeski as a battered wife and

moved in with him for economic reasons. The majority explains

that, in today's social environment, men and women, like Hughes

and Kopeski, live together for various reasons, including

economic convenience or necessity. Regardless of the factors

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that may have initially brought Hughes and Kopeski together,

they are now living together and are planning to marry, factors

which support the trial judge's finding of adultery.

I also reject the majority's effort to distinguish the

facts in this case as less compelling to prove adultery than the

line of cases, which the majority cites, that hold adultery has

been proven where one spouse is shown to have "covertly" met and

spent time with a member of the opposite sex at an apartment,

hotel or motel, or other location. I agree that in those cases

the fact of the "covert" meetings and lack of a cogent

explanation for the liaisons supported the trial judge's finding

of adultery based upon the opportunity to engage in sexual

intercourse. See Coe v. Coe, 225 Va. 616, 303 S.E.2d 923

(1983); Higgins v. Higgins, 205 Va. 324, 136 S.E.2d 793 (1964);

Derby v. Derby, 8 Va. App. 19, 378 S.E.2d 74 (1989). But, the

undisputed facts in this case establish that Hughes and Kopeski

have cohabited together since 1996; they have a romantic

relationship and plan to marry; and the relationship is

exclusive. These facts are equally, if not more compelling,

than the "covert" meeting cases in supporting a fact finder's

conclusion that the two people who have openly cohabited

together for several years and who plan to marry have committed

adultery.

The majority also cites three cases in support of its

holding in which, according to the majority, the Supreme Court

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and this Court found the evidence insufficient to prove adultery

on more compelling facts. See Seemann v. Seemann, 233 Va. 290,

355 S.E.2d 884 (1987); Painter v. Painter, 215 Va. 418, 211

S.E.2d 37 (1975); Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d

516 (1998). None of those decisions, in my opinion, supports

the action that the majority takes in this case. In none of

those cases did the Courts find the evidence insufficient, on

appeal, to support a finding of adultery. In fact, in Seemann

and Painter the Supreme Court affirmed and expressly upheld the

factual findings of the trial judge. In Romero, we held that

the trial judge was bound by the factual finding of the

commissioner who had heard the witnesses and made credibility

determinations, rather than the chancellor. These cases support

the well established standard of appellate review under which

the appellate court is bound by the factual findings of the

trial judge when supported by credible evidence, which is the

case here.

For the foregoing reasons, I dissent from the holding of

the majority with respect to that issue. I would affirm the

trial court.

Finally, as to the majority's holding that the trial judge

erred by considering Hughes' testimony from the ore tenus

hearing in the separate custody case, in my opinion, that error

was harmless, see generally Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc), because

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the two cases, although filed as separate proceedings, involved

the same parties, the same judge, and essentially the same

issues concerning the proof of adultery to support the grounds

for divorce or changing custody. Admittedly, a different

attorney represented Mrs. Hughes in the two proceedings, but

essentially the same evidence was presented in both proceedings,

even though one was by deposition and one ore tenus. In my

opinion, the error does not justify reversing the judgment of

the trial court.

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