Sarah Johnson Vardell v. William Norman Vardel
Supreme Court of Virginia
225 Va. 351
April 29, 1983
The wife further requested that the husband be enjoined from “going on the premises” of the marital abode, owned jointly by husband and wife. An ex parte hearing was held on the injunction request that day and an order preventing the husband from “going on the premises” of the home. Later that day, the sheriff served the husband with the subpoena in chancery for a divorce in Virginia and the injunction order at the marital residence. The husband voluntarily left the premises. The husband then filed an answer and cross-bill for a divorce in Virginia alleging that the wife’s obtaining an injunction without cause, restraining the husband from going into their residence, constituted constructive desertion by her. The husband sought a divorce on this ground and requested dissolution of the injunction. The Chancellor denied the wife a divorce because she failed to prove that the husband was guilty of cruelty. However, the Chancellor granted the husband a divorce on the ground of the wife’s constructive desertion in obtaining an injunction against him.
The wife appeal from a judgment of the Circuit Court of Chesterfield County
- Whether evidence of the eviction from the marital abode, pursuant to an injunction order entered ex parte is sufficient to support a divorce on the ground of cruelty?
- Whether the trial court erred in holding that the court-ordered ejection of her husband from the family domicile constituted cruelty and desertion on the wife’s part?
The wife presented evidence in support of the injunction legally sufficient to cause the chancellor to require the parties to separate, such action, without more, may not ipso facto be converted into a basis for granting a divorce to the husband when the wife is unsuccessful in proving her grounds for a divorce.
This Court, noting the injunction order did not direct the sheriff to remove the wife from the home, found the sheriff acted “hastily” and followed the instructions of the husband who told him to break the door down if necessary. The Court held that the conduct of the husband and his cousin, the sheriff, amounted to “gross cruelty and humiliation,” constituted “terrible treatment,” and clearly established that the husband was guilty of cruelty tantamount to constructive desertion. The egregious circumstances in Brooks v. Brooks, 200 Va. 530, 106 S.E.2d 611 (1959) stand in striking contrast to the facts in the present case. Here, the initial decision to evict, made ex parte, was affirmed within eight days upon a full adversary hearing. The actual eviction was uneventful; it was in accord with the letter of the injunction order and was unaccompanied by the disgraceful conduct present in Brooks. Thus, Brooks is not controlling here. For these reasons, those portions of the July 1980 final decree awarding the husband a divorce on his cross-bill, and permitting the wife to resume her maiden name, will be set aside and annulled. The trial court’s decision that the wife has failed to prove defendant was guilty of cruelty has, of course, become final.
Thus, the suit will be remanded on the wife’s bill of complaint for divorce for further proceedings not inconsistent with this opinion.
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
Source by Atchuthan Sriskandarajah