James Stevens filed a complaint for divorce against Kalliope K. Stevens on the ground of cruel treatment. The defendant denied the allegation of cruel treatment and sought custody of the minor child, temporary and permanent alimony and child support.
The case was tried before a jury. The evidence of cruel treatment by the wife was in conflict. The wife also defended the complaint on the ground of adultery by the husband. The evidence of adultery was denied by the husband.
The jury granted a divorce between the parties, gave the defendant title to an automobile, title to the husband’s half of the home and furnishings, awarded her child support and awarded her alimony until the child reached 18 years of age.
The defendant appeals to this court. Held:
l.The appellant contends that the husband was not entitled to a divorce on the ground of cruel treatment because the evidence showed he was guilty of adultery and that this amounts to "like conduct” under Code § 30-109 and would bar a divorce.
Submitted June 15, 1973 Decided September 6, 1973. Pierce, Ranitz, Berry, Mahoney & Forbes, John F. M. Ranitz, Jr., for appellant. Barker & Edenfield, Robert E. Barker, for appellee.We do not agree. The evidence on the question of adultery was in conflict, and the jury was authorized to believe the testimony of the husband denying any adultery. The question of whether adultery would amount to such "like conduct” as to bar a divorce based on cruel treatment, therefore is not for consideration in this case.
2. The evidence is sufficient to authorize the grant of the divorce.
Judgment affirmed.
All the Justices concur.