COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
ANTONIA MARIA R. ROMERO, A/K/A
ANTONIA COLBOW
OPINION BY
v. Record No. 0686-97-1 JUDGE JOSEPH E. BAKER
APRIL 7, 1998
GEORGE ALLEN COLBOW
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
(Barton N. Daniel, on brief), for appellant.
Appellant submitting on brief.
(Mark S. Smith; Christie & Kantor, on brief),
for appellee. Appellee submitting on brief.
Antonia Maria R. Romero (wife), also known as Antonia
Colbow, appeals from a decree of divorce entered by the Circuit
Court of the City of Chesapeake (trial court) that awarded George
Allen Colbow (husband) a divorce from wife on the ground of
adultery, denied spousal support to wife while reserving that
right only to husband, and made equitable distribution awards.
For the reasons that follow, we reverse.
The evidence and issues in this case were presented in
person by the parties before a commissioner in chancery. Wife
contends the evidence was insufficient to prove she committed
adultery and, therefore, the trial court erroneously refused to
reserve her right to spousal support. Wife further asserts that
the trial court erroneously reduced her marital share to
husband's military pension based upon the unfounded allegation of
adultery.
Husband and wife married in 1974 in Spain while husband was
in the U.S. Navy. They separated in December 1992. On January
11, 1993, husband filed for divorce, alleging wife had committed
adultery.
Only the commissioner heard the testimony of the parties and
their witnesses. Husband testified that when he returned from
the Gulf War in 1992, he and wife moved into separate bedrooms.
He believed wife was having an affair. One evening during the
fall of 1992, he went to look for wife at about 1:00 a.m. because
she had not returned from her job at a local department store.
He located wife's car and while waiting nearby, he saw wife and a
man named Andre Ramirez drive into the parking lot in Ramirez'
car, stop, and begin to kiss. When husband drove up to Ramirez'
vehicle, wife and Ramirez looked at husband, left the parking lot
at a high rate of speed, and managed to evade him. When husband
returned home, wife was already there. Wife admitted having been
with Ramirez that night but claimed he was "a friend" and denied
kissing him.
Husband further testified that by the fall of 1992, he
realized wife was no longer storing the parties' telephone bills
in their usual place. He obtained from the telephone company
replacement records which showed numerous calls between wife's
and Ramirez' residences from December 1991 to February 1993. He
also presented polaroid photographs he found in wife's car after
the separation, one of which showed wife in Ramirez' place of
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business wearing a blouse and short, lace-trimmed skirt or slip.
That photograph was admitted as exhibit one. Another picture
showed wife in Ramirez' residence, dressed only in a sweater, and
she appeared to be removing or putting on underclothes. Husband
testified that he had not taken the photos and was not present
when they were taken.
Ramirez confirmed that the photos depicted his office and
his home, but he denied taking them or knowing who did. He
admitted that he and wife were friends and that he had spent some
time with her daughter, as well, but he denied having sexual
relations with wife.
Wife admitted that she used Ramirez' credit cards in 1992,
signed his name, and picked up his laundry. When asked to
identify the individual in the picture designated as exhibit one,
wife asserted her Fifth Amendment privilege against
self-incrimination. She testified that she had not had sexual
relations with anyone other than husband from before the parties'
separation until the time of the commissioner's hearing on
December 27, 1994; however, she then recanted her denial and
again invoked the Fifth Amendment.
In his report filed June 2, 1995, the commissioner found
that wife was not a credible witness and that the circumstances
were suspicious, but he concluded that husband had not met his
burden of proving adultery by clear and convincing evidence. He
recommended a no-fault divorce with a reservation of spousal
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support to wife and an award to wife of fifty percent of the
marital share of husband's non-disability military retirement
pay. The commissioner based this award on a finding that
when one spouse is in the service of their
country, it places an added burden on the
other spouse to perform more parenting
obligations, and obligations tending to
household responsibilities. Also, evidence
in this case is that wife worked throughout
the marriage, although she never worked very
long or full-time in a place, and has no
other retirement available.
Husband excepted to the commissioner's report.
The trial court reviewed the transcript and exhibits from
the commissioner's hearing, the memoranda filed by the parties,
and heard argument of counsel. By letter opinion of October 29,
1996, the trial court ruled that the photographs, evidence of the
car chase, and the inconsistency of wife's testimony proved
wife's adultery by clear and convincing evidence. Based on the
finding of adultery, the court refused to reserve wife's right to
spousal support and stated that in consideration of "all the
evidence," wife should receive thirty-three-and-one-third percent
of the marital share of husband's military retirement. It did
not expressly link the reduction to the proof of wife's adultery.
The trial court also expressly noted that, in addition to all
the evidence and argument and the report of the commissioner, it
had considered the statutory factors in Code §§ 20-107.1, -107.2,
and -107.3.
On February 19, 1997, the trial court entered a final decree
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which, contrary to the commissioner's report and findings, (1)
found wife had committed adultery, (2) refused to reserve her
right to spousal support as a result, and (3) reduced her marital
share of husband's military pension to thirty-three-and-one-third
percent without explanation.
When the trial court hears the testimony of witnesses ore
tenus, its findings of fact are reviewed on appeal in the light
most favorable to the party who prevailed below. See, e.g.,
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988). However, when the chancellor has referred the matter
to a commissioner in chancery, "'[e]ven where the commissioner's
findings of fact have been disapproved [by the chancellor], an
appellate court must give due regard to the commissioner's
ability, not shared by the chancellor, to see, hear, and evaluate
the witnesses at first hand.'" See Robinson v. Robinson, 5 Va.
App. 222, 226, 361 S.E.2d 356, 358 (1987) (quoting Hill v. Hill,
227 Va. 569, 577, 318 S.E.2d 292, 296-97 (1984)). Where the
circuit court has rejected the commissioner's conclusion that the
evidence was insufficient to prove a party's infidelity, "we must
review the evidence and ascertain whether, under a correct
application of the law, the evidence supports the findings of the
commissioner or the conclusion of the trial court." Dooley v.
Dooley, 222 Va. 240, 245, 278 S.E.2d 865, 868 (1981) (citation
omitted); cf. Higgins v. Higgins, 205 Va. 324, 328-29, 136 S.E.2d
793, 796 (1964) (discussing duties of and deference to
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commissioner).
The commissioner described wife's testimony before him as
confusing at best when she invoked her Fifth Amendment rights
while simultaneously denying having had sexual relations with
anyone but husband. On the allegation of adultery, the
commissioner said that, although wife was not a credible witness,
the fact that she had exercised her Fifth Amendment rights could
not be used against her. See Code § 8.01-223.1. Therefore, the
evidence "as a whole" justifiably raised suspicion; but it did
not equate to clear and convincing evidence of adultery.
In its letter opinion, the trial court recognized "the
principle that the Commissioner's findings of facts should be
sustained unless it is determined that such findings are not
supported by the evidence." However, after reviewing the
evidence, the trial court found that the commissioner "erred when
he did not find [wife] guilty of adultery despite clear and
convincing evidence." In its opinion, the trial court said that
it "based its decision on the photographs found by [husband] in
[wife's] car, the evidence of the car chase, and [wife's] display
of inconsistency at the Commissioner's hearing."
"To establish a charge of adultery the evidence must be
clear, positive and convincing. Strongly suspicious
circumstances are inadequate. Care and circumspection should
accompany consideration of the evidence." Painter v. Painter,
215 Va. 418, 420, 211 S.E.2d 37, 38 (1975). Here, as in Painter,
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wife's conduct created strong suspicion of an intimate
relationship with a person not her husband; but even strongly
suspicious circumstances are not enough to establish adultery.
Id.
"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, 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."
Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d 437, 439
(1948) (citation omitted).
This Court must decide whether, on this record, the finding
of the commissioner or the trial court is supported by the
evidence. We hold that "the photographs found by [husband] in
[wife's] car, the evidence of the car chase, and [wife's] display
of inconsistency at the Commissioner's hearing" are not "clear
and positive and convincing" evidence, as required by Haskins and
its progeny, to support the charge of adultery.
Accordingly, we reverse the trial court's finding that the
commissioner erroneously concluded the evidence did not clearly
and convincingly prove wife committed adultery. Because the
trial court applied its finding of adultery in refusing to
reserve the right of spousal support to wife and because it may
have done so in determining how much of the marital share of
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husband's pension to award wife, we also reverse those findings
and remand this cause to the trial court for further
consideration consistent with this opinion.
Reversed and remanded.
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