Barbara Ann Thacker Catron v. Larry Douglas Catron

• Court: Court of Appeals of Virginia
• Decided: February 6, 2001
• Docket: 1321003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank

BARBARA ANN THACKER CATRON MEMORANDUM OPINION * BY v. Record No. 1321-00-3 JUDGE RUDOLPH BUMGARDNER, III FEBRUARY 6, 2001 LARRY DOUGLAS CATRON

FROM THE CIRCUIT COURT OF SCOTT COUNTY William C. Fugate, Judge

(John H. Qualls, on brief), for appellant. Appellant submitting on brief.

(Roderick St. Martin; Coleman & St. Martin, on brief), for appellee. Appellee submitting on brief.

The trial court granted Larry D. Catron a divorce on the

grounds of adultery. Barbara Ann Catron contends the evidence

did not support a finding of adultery. We conclude credible

evidence supported that finding.

On appeal, we view the evidence in the light most favorable

to the husband, the prevailing party below. Gasque v. Mooers

Motor Car Co., 227 Va. 154, 157, 313 S.E.2d 384, 387 (1984). So

viewed, the parties married in 1964 and separated in 1995, but

the relationship began to deteriorate in 1989. The wife started

drinking heavily, resulting in three driving under the influence

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. and three shoplifting convictions. She received inpatient

alcohol treatment and served time in jail as well.

The wife met Hobart Scism through her husband who worked

with Scism. The first indication that they had developed a

relationship came when the husband discovered the letters that

Scism had written her while she was in jail in 1993. After the

wife moved to a separate bedroom in June 1994, the husband found

a photograph of Scism under her mattress. When the parties

separated in January 1995, the husband moved out of the marital

residence. Later, the husband returned to the marital residence

while the wife was in jail. He found a box of photographs which

he introduced to prove the wife committed adultery with Scism in

September 1994 and in October 1995.

While the photographs do not depict the two engaged in the

act, they showed the wife on several different occasions posed

for the pictures in Scism's bedroom. In the photographs she was

completely unclothed on one occasion and only in her underwear

on the other occasions. The wife testified extensively about

the photographs. She gave conflicting statements about who took

the pictures and when and where they were taken. None of her

explanations comported with the details revealed in the

photographs.

The wife contends the photographs described suspicious

circumstances but are not sufficient to prove adultery in the

face of unrefuted denials by her and Scism. The wife's argument

- 2 - relies heavily on her denial that she and Scism did not have

sexual relations. However, her testimony is not proof if it is

not credible.

"[W]e are not required to believe that which we know to be

inherently incredible or contrary to human experience or to

usual behavior." Willis v. Commonwealth, 218 Va. 560, 564, 238

S.E.2d 811, 813 (1977) (citation omitted). The fact finder

determines whether evidence is unclear, unreasonable, or false.

Evidence is incredible if it is "'so manifestly false that

reasonable men ought not to believe it, or it must be shown to

be false by objects or things [such as photographs] as to the

explanation and meaning of which reasonable men should not

differ.'" Milk Comm. of Virginia v. Safeway Stores, 199 Va.

837, 841, 102 S.E.2d 332, 335 (1958) (quoting Daniels v.

Transfer Co., 196 Va. 537, 544, 84 S.E.2d 528, 532 (1954)).

Even though the wife's denials are unrefuted by direct

evidence, they are refuted by circumstantial evidence. In this

case, we are privileged to read the record as the trial court

did. Higgins v. Higgins, 205 Va. 324, 330, 136 S.E.2d 793, 797

(1964). The wife repeatedly changed her story regarding the

incriminating photographs. Her statements were internally

self-contradictory and do not permit reconciliation of the

differences. Her testimony was even contradicted in part by

Scism's testimony. The wife's testimony does not provide a

believable explanation for the photographs. The trial court

- 3 - could conclude the explanations were false. Having found that

she was untruthful in that testimony, the trial court was free

to discard her statements denying an affair with Scism. Upon

finding a false denial, the court could infer she committed the

act. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608,

610 (1981) (false statements may be probative of guilt).

"In order to warrant a decree for divorce on the ground of

adultery, the burden rests upon the complainant to make out his

case by such clear, strong and convincing evidence as to carry

conviction to the judicial mind." Coe v. Coe, 225 Va. 616, 622,

303 S.E.2d 923, 927 (1983); Dooley v. Dooley, 222 Va. 240,

245-46, 278 S.E.2d 865, 868 (1981); Painter v. Painter, 215 Va.

418, 420, 211 S.E.2d 37, 38 (1975); Haskins v. Haskins, 188 Va.

525, 530-31, 50 S.E.2d 437, 439 (1948).

The trial court determines issues of credibility and weight

of the evidence. The photographs, coupled with the wife's

incredible explanations, and the reasonable inferences fairly

deducible describe more than suspicious circumstances. We have

reviewed the original photographs and the testimony. "We cannot

escape the conclusion, from the cold print of the record, that

[the wife] has been guilty of infidelity. Common sense and the

common experience of men are used as our guide. '[C]redulity

must not be stretched to the breaking point.'" Higgins, 205 Va.

at 328, 136 S.E.2d at 796 (citation omitted).

- 4 - We conclude the circumstantial evidence permits a finding

of adultery. Accordingly, we affirm.

Affirmed.

- 5 -