Wanda Kay Pilkinton v. Gary Lee Pilkinton ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
WANDA KAY PILKINTON
MEMORANDUM OPINION *
v. Record No. 2911-01-3 PER CURIAM
APRIL 2, 2002
GARY LEE PILKINTON
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
(Barry M. Tatel; Neil E. McNally; Key,
Tatel & McNally, P.C., on brief), for
appellant.
(John Gregory, Jr., on brief), for appellee.
By decree dated September 28, 2001, the trial court awarded
Gary Lee Pilkinton (husband) a divorce a vinculo matrimonii on the
ground of wife's adultery. On appeal, Wanda Kay Pilkinton (wife)
contends: (1) there was insufficient "corroborative evidence [of
residency and domiciliary], independent of the admissions of the
parties, to support the granting of a divorce a vinculo
matrimonii"; and (2) the trial court erred in finding that wife
"had committed adultery." Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On appeal, "we view the evidence and all reasonable
inferences in the light most favorable to the prevailing party
below . . . . 'The burden is on the party who alleges reversible
error to show by the record that reversal is the remedy to which
he is entitled.'" Lutes v. Alexander, 14 Va. App. 1075, 1077, 421
S.E.2d 857, 859 (1992) (citation omitted).
So viewed, the evidence proved the parties were married on
February 18, 1984. No children were born of the marriage. In
February 2001, husband found ten sets of photographs depicting
wife posing provocatively in different outfits and in various
stages of undress. Two sets were dated July 3, 1997, two sets
were dated July 26, 1997, one set was dated September 17, 1997,
two sets were dated November 8, 1997, and three sets were dated
January 31, 1998. Husband did not recognize any of the lingerie
or outfits worn by wife except a white long-sleeve shirt.
Moreover, although wife always wore her wedding ring except when
she went to bed, the photographs depicting her hands revealed that
the ring had been removed. Despite the absence of her wedding
ring, the photos depicted wife wearing other rings.
Wife explained that she "approached" Bill Meador because
she, like Meador, was interested in photography. She also
testified that she "had considered doing some glamour shots" for
husband to take with him when he is away on business. Wife
testified that "during the process of taking" the photos, the
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relationship with husband "got worse." She explained that she
did not "want to rekindle any intimacy . . . [and] decided to
keep the pictures."
Meador, an unmarried man with whom wife occasionally
worked, took all ten sets of photos over a six and one-half
month period of time. The photos were taken in Meador's
apartment. Meador also admitted accompanying wife to various
places in the spring and summer of 1997. He identified two
photographs he took of wife in 1997; they depict wife near a
pool wearing a bikini bathing suit.
Husband testified that he and wife had had sexual relations
only "once or twice in the last five years." Husband knew nothing
about the photographs, and wife never provided copies of any of
them to him. On their February 2001 wedding anniversary, husband
found what appears to be a rough draft of a letter written in
wife's handwriting to someone named "Mike." In it, wife wrote the
following:
I can't let you go without letting you know
what Thurs. night did for me. You have
given me an evening that will forever be
remembered in my heart. An evening that I
would like to relive again and again. There
is so much more of you that I want a part
of, more of you that I want to make love to.
You're a great lover Mike, a hell of a
kisser (!!) and wow do you know how to
f _ _ _.
In the letter, wife discussed future dates when "Mike's"
baseball team, the Frederick Keys, was scheduled to play in the
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area, at which time she hoped to see him. She asked "Mike" to
correspond with her and included her home address and e-mail
addresses at work and at home. In closing she wrote, "Thanks
for getting my summer off to a wonderfully hot start." In her
day planner, wife only listed games in which the Frederick team
played. One date noted on the planner was Thursday, June 22,
2000, indicating Frederick played that day.
Husband also found six birthday cards and one general
greeting card given to wife. All seven cards were signed by
someone named "Rick." The caption on the outside of one card
reads, "Happy Birthday to the one I love waking up next to!"
Inside, the caption reads, "Also the one I love falling asleep
next to, waiting in line next to, sitting on the couch next to
. . . ." After that caption is the following handwritten
notation: "next to you is a good thing! Rick." Wife testified
that "Rick," the person who signed the six birthday cards,
"worked briefly" with her from "March to October." When asked
why Rick gave her so many cards, including the one containing
the personal message about falling asleep next to her, wife
testified that "Rick" desired to do those things with her.
Husband confronted wife with the evidence and asked her why
she had been unfaithful. He testified that wife admitted having
"'numerous affairs.'" She told husband she had the affairs
because husband had not been there for her.
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Before ruling on the issue, the trial court reviewed case
law presented by the parties, "cautiously scrutinized the ore
tenus evidence" from the August 14, 2001 hearing, gave "careful
consideration to the credibility of the witnesses, including
their demeanor on the witness stand," and conducted independent
research. By letter dated September 7, 2001, the trial court
advised the parties of its holding, namely, that husband proved
"by clear, positive, and convincing evidence that the [wife]
committed adultery."
ANALYSIS
I.
Quoting from Code § 20-97, wife argues there was insufficient
evidence, independent of the admissions of the parties, that
either party had "been an actual bona fide resident and
domiciliary of this Commonwealth for at least six months preceding
the commencement of the suit."
Code § 20-97 provides, in pertinent part:
No suit for annulling a marriage or for
divorce shall be maintainable, unless one of
the parties is and has been an actual bona
fide resident and domiciliary of this
Commonwealth for at least six months
preceding the commencement of the suit; nor
shall any suit for affirming a marriage be
maintainable, unless one of the parties be
domiciled in, and is and has been an actual
bona fide resident of this Commonwealth at
the time of bringing such suit.
Compliance with the provision of the Code's requirement
that one of the parties "'is and has been an actual bona fide
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resident of this State for at least one year [now six months]
preceding the commencement of the suit for divorce' is essential
to the maintenance of the suit and must be established by
evidence introduced in the cause." Hiles v. Hiles, 164 Va. 131,
139, 178 S.E. 913, 916 (1935) (citing former Code § 5105).
Husband testified at the August 14, 2001 hearing that he
and wife had been domiciled in Virginia for at least six months
prior to the filing of the suit. Husband also testified that
the letter to "Mike" was written in 1999 or 2000, because she
referred to a vacation that occurred in that time period. In
the 1999 or 2000 letter, wife included her home address of "4404
Cordell Dr., Roanoke, VA 24018-2902."
That is the same address contained on documents filed by
husband and wife in the trial court on May 31, 2001. Documents
reflecting that address included husband's 2000 W-2 Statement,
wife's 2000 W-2 Statement, and a 1099-G Form from the Virginia
Employment Commission (VEC) reflecting the total amount of
worker's compensation benefits paid to husband in the year 2000.
Moreover, a May 2001 pay statement from husband's employer,
EPSG, indicated that Virginia was husband's "RESIDENT STATE" and
his "Unemployment State."
Meador testified that he has lived in Roanoke for
thirty-one years and first met wife in 1995 or 1996 when she
worked at the Roanoke Valley Civic Center. Wife's 2000 W-2 form
showed that wife still works for the same Roanoke employer.
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The above-referenced evidence satisfactorily established
that wife and/or husband was "an actual bona fide resident and
domiciliary of this Commonwealth for at least six months
preceding the commencement of the suit." Code § 20-97.
Accordingly, the trial court properly obtained jurisdiction.
II.
"To establish a charge of adultery the evidence must be
clear, positive and convincing. Strongly suspicious circumstances
are inadequate." Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d
37, 38 (1975). However, "'while a court's judgment cannot be
based upon speculation, conjecture, surmise, or suspicion,
adultery does not have to be proven beyond a reasonable doubt.'"
Gamer v. Gamer, 16 Va. App. 335, 339, 429 S.E.2d 618, 622 (1993)
(citation omitted).
"[I]n determining whether clear and convincing evidence
supports a finding of adultery, the Supreme Court and this Court
have consistently reviewed the record to determine not only
whether the evidence merely established suspicious conduct, but
also whether a credible explanation existed for the
circumstances." Hughes v. Hughes, 33 Va. App. 141, 150, 531
S.E.2d 645, 649 (2000). "We 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,
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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)).
Husband described a five-year period in which the marriage
was devoid of intimacy. Wife never told husband she had posed
several times in suggestive outfits for "glamour shots" in
another man's apartment. The photos, which were purportedly for
husband, reveal that wife removed her wedding band but not other
rings. In addition to the photographs taken by Meador, husband
found a rough copy of a letter to "Mike" discussing making love
with him, describing him as a "great lover," advising him there
is more of him she "want[s] to make love to" and acknowledging
that he "know[s] how to f _ _ _." The letter also contained
detailed and accurate personal information that would enable the
addressee to contact wife. Finally, husband found seven cards
from "Rick," who knew wife only seven months, then left town.
One card sent by "Rick" expressed how much he enjoyed waking up
next to wife.
The trial court determines issues of credibility and weight
of the evidence. The photographs and relationship with Meador,
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the draft letter to "Mike" and the cards from "Rick," coupled
with the wife's incredible explanations, and the reasonable
inferences fairly deducible therefrom, describe more than
suspicious circumstances. We have reviewed the evidence 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. 'Credulity must not be stretched to the
breaking point.'" Higgins v. Higgins, 205 Va. 324, 328, 136
S.E.2d 793, 796 (1964) (citation omitted).
We conclude that the trial court did not err in finding
that the circumstantial evidence proved adultery. Accordingly,
we affirm.
Affirmed.
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