Thomas v. Thomas
Virginia Court of Appeals
1996 WL 679985
November 26, 1996

WILLIS, Jr., Judge.

On appeal from a final decree granting his wife, Marian M. Thomas, a divorce, Henry E. Thomas, IV contends that the trial court erred in granting the divorce on the ground of cruelty. We find no error and affirm the judgment of the trial court.

Mr. and Ms. Thomas were married on December 20, 1964. They have two sons, both of whom are emancipated. Presently, Mr. Thomas is unemployed and Ms. Thomas is employed by the Society for the Prevention of Blindness. Throughout the marriage, Mr. Thomas kept his money separate, paying only the mortgage, real estate taxes, insurance, and utilities for the marital residence. Ms. Thomas paid all other expenses. During the marriage, Mr. Thomas failed on numerous occasions to pay the expenses that he had accepted as his responsibility. In addition to her monetary contributions to the marriage, Ms. Thomas cared for the parties' children, maintained their home, including repairs and renovations, and supported her husband's career by entertaining his colleagues.

In November, 1993, Mr. Thomas left the marital home and never returned. During the preceding ten years, the parties had but one occasion of physical relationship. On that occasion, Mr. Thomas told his wife that he fantasized about being homosexual and that she was the only one who could "save" him. She later found a register from a bed and breakfast establishment that caters to homosexuals, revealing that husband had spent a weekend there with another man. She also found correspondence that he had received through a homosexual pen pal club, along with homosexual pornographic videos and paraphernalia.

On November 19, 1993, Ms. Thomas sued for divorce on grounds of cruelty and constructive desertion, alleging particularly Mr. Thomas' homosexuality. In his answer and in response to requests for admissions, Mr. Thomas admitted under oath his homosexuality.

On June 26, 1995, the trial court entered a final decree granting Ms. Thomas a divorce on the ground of cruelty.

Mr. Thomas contends that the trial court erred in awarding Ms. Thomas a divorce on the ground of cruelty. He argues that there was no evidence that his alleged homosexual activity amounted to cruelty and that Ms. Thomas condoned his homosexual behavior. He also argues that Ms. Thomas did not specifically plead his homosexuality as a ground of fault.

"'Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Pommerenke v. Pommerenke, 7 Va.App. 241, 244 (1988).

The evidence established that Mr. Thomas admitted under oath that he was homosexual, that he spent at least one weekend with another man, that he received correspondence from homosexual men through a homosexual pen pal club, and that he confessed his homosexuality to his children and colleagues. He assaulted Ms. Thomas during a confrontation over his homosexual conduct. The trial court did not err in allowing Ms. Thomas to produce this evidence because she specifically pleaded it in her bill of complaint for divorce. The trial court properly awarded Ms. Thomas a divorce on the ground of cruelty.

The trial court did not err in finding that Ms. Thomas had not condoned her husband's homosexuality. "Knowledge of the misconduct is necessary before condonation may occur." Hollis v. Hollis, 16 Va.App. 74, 77 (1993). The evidence showed that at the time the parties had sexual relations, Ms. Thomas believed Mr. Thomas' homosexuality was a fantasy. When she discovered that it truly existed, she terminated marital relations.

We affirm the judgment of the trial court.