COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JOHN A. FULCHER
MEMORANDUM OPINION *
v. Record No. 0382-97-1 PER CURIAM
AUGUST 12, 1997
LINDA S. FULCHER
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
(Dana L. Gay; Duty, Duty and Gay, on briefs),
for appellant.
(Breckenridge Ingles; Martin, Ingles &
Ingles, on brief), for appellee.
John A. Fulcher (husband) appeals the decision of the
circuit court awarding a divorce to Linda S. Fulcher (wife) on
the ground of cruelty. Husband contends that the trial court
erred because (1) there was insufficient evidence to prove
cruelty; and (2) there was evidence of wife's fault through
adultery and financial irresponsibility. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
The evidence was heard by the commissioner in chancery, who
found that wife proved her ground of divorce by clear and
convincing evidence. The commissioner based his findings upon
the testimony and his "ability to observe the parties and the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
witnesses and despite denials by [husband] . . . ." On appeal,
[t]he commissioner's report is deemed to be
prima facie correct. The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . . to
see, hear and evaluate the witness at first
hand."
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted). "[T]he trial judge ordinarily must sustain
the commissioner's report unless he or she concludes that it is
not supported by the evidence." Id. We must affirm the trial
court's decision unless it is plainly wrong or without evidence
to support it. See McLaughlin v. McLaughlin, 2 Va. App. 463,
466-67, 346 S.E.2d 535, 536 (1986).
I.
Wife testified regarding husband's behavior throughout the
marriage, which was marked by several separations. Husband had
affairs and drank excessively. He took little responsibility for
the children when they were young. Husband discouraged wife's
contacts with her friends. On several occasions, husband refused
to provide wife with sufficient funds to purchase groceries, so
wife borrowed money from a friend. Wife testified that husband
was increasingly angry with her and their children, would scream
at her, and "would stand there in front of me with his fist
clenched just so mad and so angry." Following one incident when
husband became angry and threw a beer bottle at her, wife moved
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out of the house.
Numerous witnesses corroborated wife's testimony. Elizabeth
Trudell corroborated wife's description of her emotional
condition following the bottle-throwing incident. Wife was
"shaking and crying and pacing back and forth." Trudell also
corroborated wife's testimony that husband was unpleasant to her
friends. Cindy Wiatt corroborated wife's testimony that husband
would refuse to pay for groceries. Betty Lou Hudgins
corroborated wife's testimony that husband was domineering and
controlling towards wife. Husband admitted to one adulterous
affair during the marriage, although he denied three other
affairs.
It is true that "a complainant must prove and corroborate
his or her grounds for divorce by independent evidence." Emrich
v. Emrich, 9 Va. App. 288, 295-96, 387 S.E.2d 274, 278 (1989).
However, "[e]very element or essential charge need not be
corroborated, nor must the corroborating evidence, standing
alone, prove the grounds for divorce, but corroboration must give
sufficient strength to the complainant's testimony to be clearly
worthy of belief." Id. at 296, 387 S.E.2d at 278. The record
contains sufficient corroboration of wife's allegations of
cruelty to support the commissioner's factual findings and the
trial court's decision.
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II.
Husband contends that the trial court erred in awarding wife
a divorce on the ground of cruelty when, through her financial
irresponsibility and adultery, there was sufficient evidence of
fault on wife's part. Although not so identified, this argument
raises the defense of recrimination. "The doctrine of
recrimination bars granting a divorce where the complainant's own
actions constitute grounds for divorce." Venable v. Venable, 2
Va. App. 178, 184, 342 S.E.2d 646, 650 (1986). Husband did not
plead adultery as a ground for divorce, and hence may not rely on
that ground by way of recrimination. Instead, husband alleged
that wife was guilty of "mental cruelty" and was unable to manage
finances, causing him "great embarrassment and mental anguish."
Neither the commissioner nor the trial judge found that husband
had proven this allegation. We find no error in the trial
court's refusal to award husband a divorce on the unproven ground
of mental cruelty.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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