Janet Marshall Taylor v. Edwin Cooke Taylor ( 1996 )

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.
Affirmed.
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