Gamer v. Gamer
In Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618 (1993), a trial judge granted a divorce on the ground of one year's separation and found no adultery. See id. at 339, 429 S.E.2d at 622.
The Court criticized that finding because the evidence contained no explanation of the conduct.
There, the wife discovered the husband clad only in a robe and another woman upstairs hiding in a closet of the master bedroom.
In the master bedroom, "the bed sheets were pulled haphazardly over the bed and the husband's silk shorts were lying on the floor." Gamer, 16 Va. App. at 338, 429 S.E.2d at 621.
In addition, a detective testified that later the husband and the other woman stayed overnight at the Gamer home on several occasions.
The evidence proved that on that occasion the woman's clothing, shoes, and other personal belongings were in the master bedroom. See id.
The Court noted that a significant consideration that detracts from proof of adultery is a lack of "evidence that the relationship or living arrangement between the spouse and the person with whom that spouse is allegedly engaging in adultery was for economic benefit or personal convenience or was other than amorous." Gamer, 16 Va. App. at 340, 429 S.E.2d at 622.
Focusing on the lack of credible evidence to explain why the woman would be staying with the husband if not because she was having an adulterous affair, the Court said the following:
Notwithstanding the weighty burden of proof to establish adultery and the deferential standard of appellate review, the commissioner's findings and recommendation disregarded the obvious. There was no evidence that the relationship or living arrangement between the husband and the woman was for economic benefit or personal convenience or was other than amorous. Overwhelming evidence was introduced of the husband's extramarital affair, and the only evidence to the contrary was his less than credible bare denial. Id. at 340, 429 S.E.2d at 622.
In affirming that decision, the Court noted, however, that the absence of a finding of adultery had no economic impact in that case and, therefore, "the error was of no consequence." Id. at 340, 429 S.E.2d at 622.