Susan L. Klein v. James L. Klein

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
SUSAN L. KLEIN
v. Record No. 0739-95-2 MEMORANDUM OPINION *
PER CURIAM
JAMES L. KLEIN NOVEMBER 14, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(Dana L. Gay; Duty, Duty & Gay, on brief), for
appellant.
No brief for appellee.
Susan L. Klein (wife) appeals the decision of the circuit
court awarding her a divorce from James L. Klein (husband) on
no-fault grounds. Wife contends that the trial court erred in
not granting the divorce on the grounds of husband's adultery
and/or desertion. Upon reviewing the record and opening brief,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. Rule 5A:27.
The trial court received evidence through depositions. A
divorce decree based upon depositions is "'presumed correct and
will not be overturned if supported by substantial, competent and
credible evidence.'" Collier v. Collier, 2 Va. App. 125, 127,
341 S.E.2d 827, 828 (1986) (citation omitted). Based upon that
evidence, the court ruled that there was insufficient evidence to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
grant a divorce on the grounds of adultery. Husband and wife
both admitted that the parties had marital problems and had
discussed getting a divorce prior to the final separation.
Husband testified that he and wife had agreed to separate in June
1993. While wife alleged that husband had an adulterous
relationship prior to the final separation, husband denied any
pre-separation adultery.
Moreover, even where dual grounds for divorce exist, the
trial judge "can use his sound discretion to select the
appropriate grounds upon which he will grant the divorce."
Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663
(1986). The trial judge is not "compelled 'to give precedence to
one proven ground of divorce over another.'" Williams v.
Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992)
(citation omitted). The evidence established that the parties
lived separate and apart for more than one year. Therefore, the
trial court's decision was supported by substantial, credible and
competent evidence. We cannot say the trial court abused its
discretion in granting a divorce on no-fault grounds rather than
on the basis of husband's alleged adultery or desertion.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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