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CAV: Husband adequately alleged desertion

The circuit court erred in finding a husband’s divorce complaint insufficient based on the husband’s apparent acquiescence in the separation. To state a claim for desertion, only the deserting party’s intentions must be adequately pled.


Husband and Wife were married on October 8, 2016. The parties had one child together. On February 27, 2017, Husband filed for divorce, alleging willful desertion as grounds for a divorce a mensa et thoro, pursuant to Code § 20-95. In the complaint, Husband alleged that:

(1) Wife constantly complained that she was unhappy, despite the fact that Husband was attentive to her needs and their child’s needs;

(2) Wife refused to maintain the marital residence while Husband “worked to put a roof over everyone’s head”;

(3) Wife left the home in mid-December of 2016, only to return for a few days and leave again for approximately one week in early January of 2017, only to stay one day, and then she left for good, abandoning Husband and deserting the parties’ marriage on January 11, 2017;

(4) Wife has not returned to the former marital residence, nor has she made any effort to resume the marital relationship and/or reconcile the same;

(5) Since the separation, and despite the fact that Husband assisted in the care and raising of the parties’ child daily since birth, Wife has unreasonably dictated to Husband the very limited dates and times when he can have custodial time.

Together with his complaint for divorce, Husband filed a “motion for pendente lite relief” seeking, among other things, joint legal and physical custody of the parties’ minor child, an order that Wife contribute to any unreimbursed medical expenses incurred by the child not covered by Husband’s insurance, an order requiring Wife to pay or contribute to all marital debts, and exclusive use of the martial residence.

Wife filed a demurrer alleging that the complaint failed to properly plead willful desertion. The circuit court sustained the demurrer, finding the facts alleged in the complaint insufficient to support the element of intent. The circuit court also found that the complaint was “insufficient in the consent in that it appears from the pleading and what he says that he acquiesced in the separation at some point before filing this complaint, and that is also an element to consider.” The circuit court granted Husband 28 days to amend the complaint.

After learning that Husband did not intend to amend the complaint, Wife argued that she incurred a significant amount of attorneys’ fees in connection with the matter, providing an affidavit of fees to the trial court. The circuit court ultimately ordered the divorce complaint to be dismissed without prejudice and awarded Wife $4,250 in attorneys’ fees. Husband’s appeal followed.

Intent to desert

This court agrees with Husband that his complaint adequately pled that Wife left the marital relationship with the intent to desert. After reciting facts relating to Wife’s unhappiness, the complaint alleged that she left the marital home twice, only to return for a short period. Husband then claims that Wife abandoned and deserted the marriage when “she left for good,” apparently taking their only child with her.

The complaint further states that Wife did not return to the residence or make any effort to resume the marital relationship since she left the home – her final departure being approximately a month and a half prior to the date Husband’s complaint was filed.

Wife’s extended absence, taken together with the other facts alleged in the complaint – such as the fact that Wife left with the parties’ child – implies that she intended to desert Husband when she departed the marital home on January 11, 2017. Therefore, the circuit court erred in finding that the complaint failed to allege that Wife left the marriage with the intent to desert.

Lack of consent

In the present case, similar to Miller v. Miller, 196 Va. 698 (1955), Husband’s failure to include facts alleging that he begged or pleaded with Wife to stay (or to specifically state that he opposed her leaving) does not render his complaint insufficient as a matter of law. Husband was not required to plead facts regarding his state of mind because only Wife’s state of mind – her intent to desert – is an element of desertion. Because the complaint sufficiently alleged that Wife ended their matrimonial cohabitation with the intent to desert, and because Husband did not need to allege facts showing his lack of consent to the desertion, the circuit court erred in sustaining Wife’s demurrer.

Attorneys’ fees

The circuit court did not expressly state the statute or authority upon which it was relying when it awarded attorney’s fees to Wife. Although the circuit court has broad authority to award attorneys’ fees in divorce cases, this court will remand to the circuit court for reconsideration of its fee award, in light of the remand on the merits.

As to Husband’s request for appellate attorneys’ fees, having considered all the equities of the case, this case was a legitimate dispute concerning substantive legal issues. Consequently, Husband’s request for appellate attorneys’ fees is denied.

Reversed and remanded.

Hill v. Thomas, Record No. 1113-17-2, Apr. 17, 2018. CAV (Beales), from Spotsylvania Cir. Ct. (Rigual). Thomas B. Dance for Appellant; no argument for Appellee. VLW No. 018-7-095, 11 pp.