LaDawn Shrieves King v. Dwayne E. King

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Felton
UNPUBLISHED
Argued by teleconference
LADAWN SHRIEVES KING
MEMORANDUM OPINION* BY
v. Record No. 2066-14-4 JUDGE WALTER S. FELTON, JR.
NOVEMBER 24, 2015
DWAYNE E. KING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Mark Bodner for appellant.
No brief or argument for appellee.
LaDawn Shrieves King (wife) appeals a final decree of divorce. Wife argues that the trial
court erred by (1) admitting into evidence Dwayne E. King’s (husband) Exhibit 2, which included
copies of wife’s conviction and sentencing orders from the circuit court of her maliciously
wounding him and use of a firearm in that offense; (2) admitting into evidence husband’s Exhibit 1,
which was a copy of a protective order against wife; and (3) granting husband a divorce based on
cruelty. We find no error, and affirm the decision of the trial court.
BACKGROUND
Husband and wife married on October 17, 2003. The parties separated on November 21,
2012, after wife shot husband while he was sleeping. Wife was arrested and charged with
malicious wounding and use of a firearm in the commission of a felony.
On May 30, 2013, a jury found wife guilty of malicious wounding and use of a firearm in
the commission of a felony. The jury recommended that wife be sentenced to five years in
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
prison for malicious wounding and three years in prison for use of a firearm in the commission
of a felony. The circuit court accepted the jury’s verdict, and on August 8, 2013, entered its
sentencing order. Wife appealed her convictions. On March 6, 2014, this Court issued a per
curiam order that granted a portion of wife’s petition for appeal of those convictions.
On August 15, 2013, husband filed a complaint for divorce in circuit court, seeking a
divorce from wife on the grounds of cruelty. Wife filed an answer. The parties appeared before
the circuit court on July 16, 2014 for a determination of the grounds for divorce, equitable
distribution, child support, spousal support, and attorney’s fees. Over wife’s objections, the
circuit court allowed husband to introduce into evidence copies of wife’s conviction and
sentencing orders for malicious wounding and use of a firearm in the commission of a felony.
Husband also entered into evidence a copy of the protective order he received. On September
12, 2014, the circuit court issued a letter opinion referring to wife’s criminal convictions, and
awarding husband a divorce from wife based on the grounds of cruelty. On October 10, 2014,
the circuit court entered a final decree of divorce that memorialized its rulings and included
references to wife’s criminal convictions.1 Wife timely noted her appeal.
ANALYSIS
Assignment of error #1
Wife argues that the trial court erred in admitting her conviction and sentencing orders
into evidence because wife had appealed the convictions. However, after this Court reversed
1
On October 28, 2014, a panel of three judges from this Court reversed wife’s criminal
convictions, and remanded the matter for a new trial, at the discretion of the Commonwealth.
See King v. Commonwealth, No. 1684-13-4, 2014 Va. App. LEXIS 356 (Va. Ct. App. Oct. 28,
2014). The Commonwealth filed a petition for rehearing en banc, which was granted. On April
7, 2015, the Court, sitting en banc, reversed wife’s criminal convictions on the basis of the trial
court failing to grant an instruction on accidental shooting, and remanded the matter to the circuit
court for a new trial, at the discretion of the Commonwealth. See King v. Commonwealth, 64
Va. App. 580, 770 S.E.2d 214 (2015) (en banc). On remand, wife entered an Alford plea
acknowledging the Commonwealth’s evidence, if believed, was sufficient to sustain a conviction
of the crime or lesser-included offense on which she was indicted.
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wife’s convictions and remanded the case to the trial court for further proceedings, wife entered
an Alford plea to the indictments at retrial on remand. She was again convicted of malicious
wounding and use of a firearm in that offense. Her convictions of those offenses are now final.
“The duty of this court . . . is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in the case before it.”
Hankins v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944) (quoting
Hamer v. Commonwealth, 107 Va. 636, 637-38, 59 S.E. 400, 400 (1907)). See also Hallmark
Personnel Agency, Inc. v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967) (“appellate courts do
not sit to give opinions on moot questions or abstract matters, but only to decide actual
controversies injuriously affecting the rights of some party to the litigation” (citations omitted)).
Consequently, this Court will not consider wife’s first assignment of error that the trial
court erred in sustaining an allegation of physical cruelty as grounds for husband’s divorce from
her. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452, 739 S.E.2d 636, 639 (2013) (“a
case is moot and must be dismissed when the controversy that existed between litigants has
ceased to exist”).
Assignment of error #2
Wife also argues that the trial court erred in admitting the protective order into evidence.
She admits that she did not preserve this issue in the trial court, but asks this Court to consider
her arguments based on the good cause and ends of justice exceptions of Rule 5A:18.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
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Wife had the opportunity to object to the admission of the protective order, but failed to
do so. Therefore, the good cause exception to Rule 5A:18 does not apply. See M. Morgan
Cherry & Assocs. v. Cherry, 38 Va. App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc)
(holding that Rule 5A:18 applied because the party failed, “without good cause,” to object to the
evidence).
“The ends of justice exception is narrow and is to be used sparingly . . . .” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (quoting Brown v.
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). “In order to avail oneself of the
exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not
that a miscarriage might have occurred.” Id. (emphasis in original) (citing Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). There was no miscarriage
of justice, and the ends of justice exception does not apply.
Accordingly, this Court will not consider wife’s second assignment of error.
Assignment of error #3
Wife argues that the trial court erred in granting husband a divorce based on the grounds
of cruelty. She contends husband’s evidence of her “alleged cruelty” was not sufficiently
corroborated.
“On appellate review, a divorce decree is presumed correct and will not be overturned if
supported by substantial, competent, and credible evidence.” Gottlieb v. Gottlieb, 19 Va. App.
77, 83, 448 S.E.2d 666, 670 (1994) (citing Capps v. Capps, 216 Va. 382, 384, 219 S.E.2d 898,
899 (1975)).
The trial court granted husband a divorce based on cruelty. The final decree of divorce
states, “The Court finds that the dissolution of the marriage was caused by [wife] shooting
[husband] in the arm as he slept on the couch in their house on November 21, 2012, with the two
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children present in the house at the time.” The trial court found that wife’s actions of shooting
husband constituted cruelty under Code §§ 20-95 and -91(A)(6).
Code § 20-91(A)(6) authorizes a divorce from the bond of matrimony on the grounds of
cruelty. “[T]he cruelty that authorizes a divorce is anything that tends to bodily harm and thus
renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life,
limb or health.” Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986) (quoting
Latham v. Latham, 71 Va. (30 Gratt.) 307, 320-22 (1878)). Moreover,
a single act of physical cruelty will constitute grounds for divorce
if it is so severe and atrocious as to endanger life, if it indicates an
intention to do serious bodily harm, if it causes reasonable
apprehension of serious danger in the future, or if the precedent or
attendant circumstances show that the acts are likely to be
repeated.
Davis v. Davis, 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989) (citing DeMott v. DeMott, 198
Va. 22, 28, 92 S.E.2d 342, 346 (1956)).
Husband testified concerning the November 21, 2012 shooting incident. He relied on the
trial court’s issuance of its protective order against wife, as well as wife’s criminal conviction
and sentencing orders to corroborate the grounds for divorce.2 Wife argues that his evidence was
insufficient to prove cruelty.
“No divorce . . . shall be granted on the uncorroborated testimony of the parties or either
of them.” Code § 20-99(1); see also Clark v. Clark, 11 Va. App. 286, 296, 398 S.E.2d 82, 88
(1990) (“The public policy of Virginia requires that before a spouse may obtain a divorce, he or
she must prove the grounds therefor and no complaint for divorce shall be defaulted, taken for
confessed, or granted upon the pleadings or upon uncorroborated testimony.” (citing Code
§ 20-99(1), (2), and (3))).
2
Husband presented testimony from Charles Craig Graham, who was husband’s friend,
to corroborate the statutory factors for the divorce. Graham testified that the parties separated on
November 21, 2012, but did not explain the circumstances surrounding the separation.
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“The question of corroboration is one of fact, the decision of which in each case depends
upon the peculiar facts of that particular case.” Graves v. Graves, 193 Va. 659, 661, 70 S.E.2d
339, 340 (1952). There only needs to be “slight” corroboration for the grounds of divorce when
it is evident that there is no collusion between the parties. Id. at 662, 70 S.E.2d at 340.
“[Corroboration] need not rest in the testimony of the witnesses but may be furnished by
surrounding circumstances adequately established.” Dodge v. Dodge, 2 Va. App. 238, 245-46,
343 S.E.2d 363, 367 (1986) (quoting Graves, 193 Va. at 662, 70 S.E.2d at 341) (emphasis
omitted).
In this case, as there was no evidence of collusion between the parties, husband needed to
provide only slight corroboration to support the ground of cruelty. Both parties testified about
their financial issues during the marriage. Husband testified that he was sleeping on the couch in
their house when wife shot him in the arm on November 21, 2012. He introduced the conviction
order and protective order into evidence.
Contrary to wife’s arguments, the trial court could consider the conviction order for
purposes of the grounds for divorce, even though wife was appealing the conviction order at the
time. The “appeal of a criminal conviction does not affect the finality of judgment, but only
suspends the execution of the sentence.” Collins v. Commonwealth, 269 Va. 141, 145-46, 607
S.E.2d 719, 721 (2005) (citing Peterson v. Commonwealth, 225 Va. 289, 297-98, 302 S.E.2d 520,
525-26 (1983)).
The conviction order and the protective order corroborated husband’s testimony that wife
shot him. Furthermore, on remand following this Court’s reversal of wife’s initial convictions of
malicious wounding of husband and use of a firearm in that wounding, wife entered an Alford plea
in which she acknowledged that the Commonwealth’s evidence was sufficient to prove that she was
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guilty of malicious wounding. Considering all of these circumstances, the trial court did not err in
granting husband a divorce based on cruelty.
Moreover, even assuming that the trial court erred, any error is harmless. Wife does not
allege, and the record does not indicate, that the grounds for divorce affected the trial court’s ruling
in other aspects of the case, such as the equitable distribution award. Both parties sought a divorce,
and, at the time of the final hearing, they had been separated for more than one year. Consequently,
any error committed by the trial court is harmless because the trial court’s finding of cruelty did
not affect the outcome of the divorce. The trial court did not err in entering its order dissolving
the marriage.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
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