Vane E. McRae v. Helen A. McRae

• Court: Court of Appeals of Virginia
• Decided: September 24, 1996
• Docket: 0208961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

VANE E. McRAE MEMORANDUM OPINION * v. Record No. 0208-96-1 PER CURIAM SEPTEMBER 24, 1996 HELEN A. McRAE

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert W. Curran, Judge

(Steven P. Frank; Romayne L. Frank, on brief), for appellant. (LeeAnn N. Barnes; Hall, Fox and AtLee, on brief), for appellee.

Vane E. McRae (husband) appeals the decision of the circuit

court granting Helen A. McRae (wife) a divorce. Husband raises

two issues on appeal: (1) whether the evidence supports the trial

judge's finding that the parties lived separate and apart for one

year; and (2) whether the trial judge erred in assessing

sanctions against husband's counsel for failing to sign the

decree of reference. Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the trial judge's decision.

Rule 5A:27. Living Separate and Apart

In husband's answer to wife's bill of complaint, husband

admitted that he and wife had last cohabited as husband and wife * Pursuant to Code § 17-116.010 this opinion is not designated for publication. on March 19, 1994. Husband's pleadings also alleged that wife

forced him to move out of the marital home and into the garage on

March 19, 1994.

The deposition testimony established that husband moved from

the marital bedroom at wife's request in March 1994 and that the

parties never resumed marital relations. However, the parties

continued to live at the same address until May 1995. Husband

initially slept on the sofa, then moved out of the house and into

the detached garage. Husband continued to use the bathroom and

laundry facilities in the house. Wife frequently stayed

overnight at her sister's home. "'"[M]atrimonial cohabitation" consists of more than sexual

relations. It also imports the continuing condition of living

together and carrying out the mutual responsibilities of the

marriage relationship.'" Dexter v. Dexter, 7 Va. App. 36, 41,

371 S.E.2d 816, 819 (1988) (citations omitted). The parties'

pleadings and the evidence established that the parties lived

separate and apart without cohabitation for the requisite period

of time. Therefore, the trial judge did not err in granting wife

a divorce on the basis of the parties' one year separation. Sanctions

The trial judge indicated in his oral ruling that he would

award wife attorney's fees for the effort necessary to compel

husband's counsel to endorse the decree of reference. Wife

contends that no order on this issue was ever entered from which

2 an appeal may be taken. The record supports wife's contention.

Neither an order nor the final decree contains an award of

attorney's fees.

"A court of record speaks only through its written orders."

Hill v. Hill, 227 Va. 569, 578, 318 S.E.2d 292, 297 (1984).

Because no order has been entered to give effect to the oral

ruling concerning sanctions, that issue is not reviewable. See

Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903, 407 S.E.2d 37, 39

(1991). Therefore, we do not address this issue. Accordingly, the decree of the circuit court granting a

divorce on the grounds the parties lived separate and apart for

one year is summarily affirmed.

Affirmed.