Barbara Ann Thacker Catron v. Larry Douglas Catron ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
BARBARA ANN THACKER CATRON
MEMORANDUM OPINION * BY
v. Record No. 1321-00-3 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 6, 2001
LARRY DOUGLAS CATRON
FROM THE CIRCUIT COURT OF SCOTT COUNTY
William C. Fugate, Judge
(John H. Qualls, on brief), for appellant.
Appellant submitting on brief.
(Roderick St. Martin; Coleman & St. Martin,
on brief), for appellee. Appellee submitting
on brief.
The trial court granted Larry D. Catron a divorce on the
grounds of adultery. Barbara Ann Catron contends the evidence
did not support a finding of adultery. We conclude credible
evidence supported that finding.
On appeal, we view the evidence in the light most favorable
to the husband, the prevailing party below. Gasque v. Mooers
Motor Car Co., 227 Va. 154, 157, 313 S.E.2d 384, 387 (1984). So
viewed, the parties married in 1964 and separated in 1995, but
the relationship began to deteriorate in 1989. The wife started
drinking heavily, resulting in three driving under the influence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and three shoplifting convictions. She received inpatient
alcohol treatment and served time in jail as well.
The wife met Hobart Scism through her husband who worked
with Scism. The first indication that they had developed a
relationship came when the husband discovered the letters that
Scism had written her while she was in jail in 1993. After the
wife moved to a separate bedroom in June 1994, the husband found
a photograph of Scism under her mattress. When the parties
separated in January 1995, the husband moved out of the marital
residence. Later, the husband returned to the marital residence
while the wife was in jail. He found a box of photographs which
he introduced to prove the wife committed adultery with Scism in
September 1994 and in October 1995.
While the photographs do not depict the two engaged in the
act, they showed the wife on several different occasions posed
for the pictures in Scism's bedroom. In the photographs she was
completely unclothed on one occasion and only in her underwear
on the other occasions. The wife testified extensively about
the photographs. She gave conflicting statements about who took
the pictures and when and where they were taken. None of her
explanations comported with the details revealed in the
photographs.
The wife contends the photographs described suspicious
circumstances but are not sufficient to prove adultery in the
face of unrefuted denials by her and Scism. The wife's argument
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relies heavily on her denial that she and Scism did not have
sexual relations. However, her testimony is not proof if it is
not credible.
"[W]e are not required to believe that which we know to be
inherently incredible or contrary to human experience or to
usual behavior." Willis v. Commonwealth, 218 Va. 560, 564, 238
S.E.2d 811, 813 (1977) (citation omitted). The fact finder
determines whether evidence is unclear, unreasonable, or false.
Evidence is incredible if it is "'so manifestly false that
reasonable men ought not to believe it, or it must be shown to
be false by objects or things [such as photographs] as to the
explanation and meaning of which reasonable men should not
differ.'" Milk Comm. of Virginia v. Safeway Stores, 199 Va.
837, 841, 102 S.E.2d 332, 335 (1958) (quoting Daniels v.
Transfer Co., 196 Va. 537, 544, 84 S.E.2d 528, 532 (1954)).
Even though the wife's denials are unrefuted by direct
evidence, they are refuted by circumstantial evidence. In this
case, we are privileged to read the record as the trial court
did. Higgins v. Higgins, 205 Va. 324, 330, 136 S.E.2d 793, 797
(1964). The wife repeatedly changed her story regarding the
incriminating photographs. Her statements were internally
self-contradictory and do not permit reconciliation of the
differences. Her testimony was even contradicted in part by
Scism's testimony. The wife's testimony does not provide a
believable explanation for the photographs. The trial court
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could conclude the explanations were false. Having found that
she was untruthful in that testimony, the trial court was free
to discard her statements denying an affair with Scism. Upon
finding a false denial, the court could infer she committed the
act. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608,
610 (1981) (false statements may be probative of guilt).
"In order to warrant a decree for divorce on the ground of
adultery, the burden rests upon the complainant to make out his
case by such clear, strong and convincing evidence as to carry
conviction to the judicial mind." Coe v. Coe, 225 Va. 616, 622,
303 S.E.2d 923, 927 (1983); Dooley v. Dooley, 222 Va. 240,
245-46, 278 S.E.2d 865, 868 (1981); Painter v. Painter, 215 Va.
418, 420, 211 S.E.2d 37, 38 (1975); Haskins v. Haskins, 188 Va.
525, 530-31, 50 S.E.2d 437, 439 (1948).
The trial court determines issues of credibility and weight
of the evidence. The photographs, coupled with the wife's
incredible explanations, and the reasonable inferences fairly
deducible describe more than suspicious circumstances. We have
reviewed the original photographs and the testimony. "We cannot
escape the conclusion, from the cold print of the record, that
[the wife] has been guilty of infidelity. Common sense and the
common experience of men are used as our guide. '[C]redulity
must not be stretched to the breaking point.'" Higgins, 205 Va.
at 328, 136 S.E.2d at 796 (citation omitted).
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We conclude the circumstantial evidence permits a finding
of adultery. Accordingly, we affirm.
Affirmed.
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