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ATHEY v. ATHEY




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the Virginia Court of Appeals.


ATHEY

v.

ATHEY


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements

Record No. 0859-03-4

JAYNE RENEE ATHEY

v.

ROBIN DWANE ATHEY

 

MEMORANDUM OPINION[1]PER
CURIAM

SEPTEMBER 23, 2003

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Alfred D. Swersky, Judge

(Christian Curtis, on brief), for appellant.

(Sandra R. Robinson, on brief), for appellee.

Jayne Renee Athey (wife) appeals the decision of the circuit

court awarding Robin Dwane Athey (husband) a divorce. On appeal,

wife contends (1) the trial court erred by finding husband
"formed

the intent to separate permanently on July 1, 2001," and
(2) the

trial court abused its discretion by denying her motions for

equitable distribution and spousal support. Upon reviewing the

record and briefs, we conclude that this appeal is without
merit.[2]

Accordingly, we summarily affirm the decision of the trial
court.

See Rule 5A:27.

Background

On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

The parties married on May 6, 1989. On July 1, 2001, husband

and wife separated. Husband testified that his intent at that

time was that the separation be permanent and that his intent

remained constant during the following twelve-month period.

Husband’s statement was corroborated by witness testimony.

Analysis

I.

Under Code ? 20-91(A)(9)(a), a divorce may be granted
"[o]n

the application of either party if and when the husband and wife

have lived separate and apart without any cohabitation and

without interruption for one year." This statute requires

"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).

Determination of whether and when the parties have "lived

separate and apart without cohabitation" is a fact-based

inquiry, requiring examination of all the circumstances before

the court.

Husband and his witness testified he left the marital

residence on July 1, 2001 with the intention to permanently

separate from wife. He asserted he retained that intention

during the entire separation period.

The trial court heard the testimony of the witnesses and

believed husband’s assertions. "We defer to the trial
court’s

evaluation of the credibility of the witnesses who testify ore

tenus." Shackelford v. Shackelford, 39 Va. App. 201,
208, 571

S.E.2d 917, 920 (2002). Read in full, the post-separation

electronic correspondence, introduced by wife to support her

contention that husband possessed the desire to reconcile during

the separation period, failed to demonstrate such an intention.

Husband 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 ground of a one-year separation.

II.

At trial, wife moved the court, for the first time, for

equitable distribution and spousal support. The final order

reflects that the trial court denied the motions. However, the

record does not indicate the basis for the court’s decision.

Wife asserts in her argument that the trial court rejected her

motions because she failed to formally pray for equitable

distribution and spousal support. She also asserts the trial

court abused its discretion by failing to "inquire[] further or

appl[y] the standard of full, clear and adequate proof" of
her

accusation that husband actively misled her "into thinking
her

right to equitable distribution and spousal support had been

preserved."

"We have many times pointed out that on

appeal the judgment of the lower court is

presumed to be correct and the burden is on

the appellant to present to us a sufficient

record from which we can determine whether

the lower court has erred in the respect

complained of. If the appellant fails to do

this, the judgment will be affirmed."

Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d

255, 256-57 (1961)). We cannot determine from the record, which

includes the statement of facts wife prepared, the basis for the

trial court’s denial of her motions. The record is insufficient

to decide the present issue.

Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

[2]Because we
find wife’s arguments lack merit and summarily

affirm the trial court’s decision, we need not address husband’s

questions presented.


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