Romero v. Colbow
In Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 516 (1998), the evidence also proved suspicious circumstances.
After the husband returned from extended military duty, he and the wife moved into separate bedrooms.
At 1:00 a.m. one morning, the husband saw the wife and another man kissing in a parking lot. When the wife saw the husband, she quickly drove away. See 27 Va. App. at 90, 497 S.E.2d at 517.
The wife hid telephone bills showing calls made to the other man's residence.
The wife also used the other man's credit card.
The husband found photographs of the wife scantily dressed and posed in the other man's residence and in his place of business.
Although the other man and the wife denied having sexual relations, the wife recanted her denial and invoked the Fifth Amendment privilege against self-incrimination. See Romero, 27 Va. App. at 90-91, 497 S.E.2d at 517-18.
The Court held that this evidence "created strong suspicion of an intimate relationship," id. at 93, 497 S.E.2d at 519, but it was not "'clear and positive and convincing' evidence and its progeny, to support the charge of adultery." Romero, 27 Va. App. at 94, 497 S.E.2d at 519.