Carl Doug Noce v. Lynn Morelle Canada Noce ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Haley
CARL DOUG NOCE
MEMORANDUM OPINION*
v. Record No. 2219-05-1 PER CURIAM
APRIL 11, 2006
LYNN MORELLE CANADA NOCE
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
(Randolph A. Raines, Jr.; Ferguson, Rawls & Raines, P.C., on brief),
for appellant.
(Kristen D. Hofheimer; Sheera R. Herrell; Hofheimer/Ferrebee, P.C.,
on brief), for appellee.
Carl Doug Noce (husband) appeals from the circuit court’s August 16, 2005 final decree
granting Lynn Morelle Canada Noce (wife) a divorce. On appeal, husband contends the trial court
erred by (1) not granting the divorce on the grounds of wife’s adultery, (2) granting wife spousal
support, and (3) failing to give him credit for his post-separation payments towards the second
mortgage on the marital residence. Upon reviewing the record and briefs, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
BACKGROUND
On appeal, we view the evidence and all reasonable inferences in the light most favorable
to appellee as the party prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
So viewed, the evidence proved the parties married on January 2, 1977 and separated on
February 5, 2002. Two children were born of the marriage. The parties owned a residence which
secured two mortgages. Following the parties’ separation, husband retained exclusive use of the
marital residence.
Husband alleged wife had committed adultery. He contended he contracted a sexually
transmitted disease during the marriage. Husband hired a private investigator after the parties
separated and introduced evidence that wife had met with another man on at least three occasions.
He failed to introduce any further evidence regarding the particulars of wife’s relationship with the
other man.
Although husband asserted he paid nearly $8,000 towards the second mortgage
post-separation, he did not support the contention with documentary evidence and did not
demonstrate he made the payments from his separate funds.
The trial court granted the parties a divorce based upon a one-year separation and denied
husband’s request for credit for his post-separation mortgage payments.
ANALYSIS
I.
Husband contends the trial court erred by not awarding him a divorce on the ground of
wife’s adultery.
It is well established that “[w]here dual or multiple grounds for divorce exist, the trial
judge can use his sound discretion to select the grounds upon which he will grant the divorce.”
Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989). Even if the evidence proved
adultery, a trial court is “not compelled to ‘give precedence to one proved ground of divorce over
another.’” Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992) (citation
omitted). The record establishes that the parties had been separated in excess of one year when
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the trial court granted the divorce on this ground. See Code § 20-91(9). Therefore, under the
circumstances of this case, we find no grounds for reversing the decision of the trial court
granting the parties a divorce on the ground of a one-year separation.
II.
Husband contends the trial court erred in awarding spousal support to wife.
“One who alleges adultery has the burden of proving it by clear and convincing
evidence.” Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987) (citation
omitted). Although this evidence need not be unequivocal, it must be such that “‘will produce in
the mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established.’” Id. at 293 n.1, 355 S.E.2d at 886 n.1 (citation omitted). Thus, the Supreme Court
has held that “[s]trongly suspicious circumstances are inadequate” and that “[c]are and
circumspection should accompany consideration of the evidence.” Painter v. Painter, 215 Va.
418, 420, 211 S.E.2d 37, 38 (1975) (citation omitted). “While a court’s judgment cannot be
based upon speculation, conjecture, surmise, or suspicion, adultery does not have to be proven
beyond all doubt.” Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983). The husband
contends wife should not be awarded spousal support because the evidence was sufficient to
prove she committed adultery.
Husband alleges he contracted a sexually transmitted disease from wife. He reported that
after he confronted her with the fact that he had contracted genital herpes, wife stated that she
“didn’t know he had it.” Husband contends the “he” wife referred to was not himself but another
man with whom she had been having an affair. Husband’s only other evidence regarding wife’s
alleged infidelity included several post-separation meetings she had with another man. That
evidence proved only that wife met with the man on more than one occasion at her apartment.
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Although the trial judge opined that “everybody knows what is going on” in reference to
wife’s relationship with the other man, the court did not make a finding that wife had committed
adultery. The evidence presented by husband simply did not rise above the level of speculation
and suspicion. We find no error in the trial court’s conclusion that husband failed to establish
wife committed adultery by clear and convincing evidence. Accordingly, there was no bar to
wife receiving spousal support.
III.
Husband also argues the court erred by failing to give him credit for his post-separation
payments towards the second mortgage on the marital residence. Husband asserts he paid
approximately $8,000 towards the second mortgage following the parties’ separation. He
provided no evidence as to the source of the funds he used to pay down the mortgage, and the
amortization schedule he introduced indicated he had paid only $850 towards the mortgage.
Although the separate contribution of one party to the
acquisition, care, and maintenance of marital property is a factor
that the trial court must consider when making its award of
equitable distribution, Code § 20-107.3 does not mandate that the
trial court award a corresponding dollar-for-dollar credit for such
contributions.
von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156, 161 (1997). In this case, as in
von Raab, husband retained exclusive use of the property after the parties separated.
Husband’s failure to demonstrate he used his separate funds to pay down the mortgage, his
inability to accurately document the amount of his payments, and his exclusive use of the property
post-separation supports the court’s decision not to grant husband credit for the post-separation
payments. We find no abuse of discretion in the court’s decision.
Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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