Janet Marshall Taylor v. Edwin Cooke Taylor

• Court: Court of Appeals of Virginia
• Decided: July 16, 1996
• Docket: 2839952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

JANET MARSHALL TAYLOR

v. Record No. 2839-95-2 MEMORANDUM OPINION * PER CURIAM EDWIN COOKE TAYLOR JULY 16, 1996

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge

(Thomas W. Blue, on briefs), for appellant. (Harry M. Johnson, Jr.; Smith, Hinton & Johnson, on brief), for appellee.

Janet Marshall Taylor (wife) appeals the decision of the

circuit court granting Edwin Cooke Taylor (husband) a divorce on

the grounds of the parties living separate and apart for one

year. Wife contends husband failed to prove a separation by the

parties with the intent to divorce for the statutory period.

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 in this matter was submitted solely by

deposition. "The rule is firmly established in Virginia that a divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard ore tenus, but such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible * Pursuant to Code § 17-116.010 this opinion is not designated for publication. evidence."

Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828

(1986) (citation omitted).

Husband testified that he formed the intent to divorce wife

when he was served with a court order on December 2, 1993 which

required him to leave the farm which had been the marital

residence. Husband filed for divorce the next day. While

husband did not voluntarily leave the farm, the evidence was

sufficient to establish that husband intended to separate

permanently from wife and that the parties had lived separate and

apart for more than one year. "[A]s a prerequisite for a divorce

under Code § 20-91(9), there must be proof of an intention on the

part of at least one of the parties to discontinue permanently

the marital cohabitation, followed by physical separation for the

statutory period." Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975). Husband admitted that he continued to view

the farm as his primary residence, but gave unambiguous testimony

that it was his desire to separate from wife. Therefore, there

was sufficient evidence to support the trial court's decision

awarding husband a divorce on the grounds of a one-year

separation.

Accordingly, the decision of the circuit court is summarily

affirmed.