                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, McClanahan and Senior Judge Coleman


ANNE M. BLOCK
                                                                MEMORANDUM OPINION*
v.     Record No. 1074-03-4                                          PER CURIAM
                                                                   JANUARY 13, 2004
ROBERT M. BLOCK


                     FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                 Thomas D. Horne, Judge

                 (J. Patrick McConnell; Heather D. Dawson; Timothy S. Bird; Odin,
                 Feldman & Pittleman, P.C.; Bird & Stanley, LLC, on brief), for
                 appellant.

                 No brief for appellee.1


       The circuit court granted Robert M. Block (husband) a divorce from Anne M. Block (wife)

on the ground on adultery. Wife appeals, and presents the following two questions:

                 1. Did the trial court commit error in granting leave for Robert
                 Block to file a Supplemental Cross-Bill of Complaint for Divorce
                 alleging adultery and granting a divorce based on allegations that
                 occurred after the trial court granted a continuance of the trial
                 date?

                 2. Did the trial court commit error in finding that the record
                 supported a finding that Anne Block had sexual relations with an
                 individual other than her husband between December 1996 and
                 June 15, 2001?




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         By order dated October 31, 2003, we suspended the briefing schedule in this case until
further order of the Court.
Upon reviewing the record and opening brief, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.2

                                           Background

       The parties were married in 1977. Wife filed for divorce in 2001. Husband filed a

cross-bill and an amended cross-bill. By order entered March 19, 2002, the trial court, over

wife’s objection, continued the trial until September 2002 and set a pretrial conference for June

6, 2002. On June 26, 2002, husband moved to file a supplemental cross-bill, alleging that wife

had committed adultery on June 8 and 9, 2002. Over wife’s objection, the court granted leave

for husband to file the supplemental cross-bill. Thereafter, the court heard evidence and issued

an opinion letter in February 2003. In its March 24, 2003 decree, the court granted husband a

divorce “on the grounds that ANNE M. BLOCK has committed acts of adultery with William E.

Christy on our [sic] about June 8 and 9, 2002 at the Gifford Pinchot State Park in the

Commonwealth of Pennsylvania and at other times thereafter . . . .”

                                            Discussion

                                                I.

       Wife concedes she committed adultery with Christy in June 2002. She argues, however,

that

               [a]lthough acts of post-separation adultery are permissible as
               grounds for divorce in Virginia, the Virginia Supreme Court has
               provided a policy reason why such acts should not be considered
               when they occur after the parties have filed for divorce and have
               been separated for more than one year. In Coe v. Coe, 225 Va.
               616, 303 S.E.2d 923 (1983), the Court reasoned that because the
               “statutorily mandated waiting period between the time separation

       2
          By order dated October 6, 2003, we concluded that several volumes of transcripts of
trial proceedings were not timely filed. We ordered appellant to show cause why this appeal
should not be dismissed. Appellant responded to the order on October 22, 2003, and both parties
filed supplemental pleadings connected thereto. We conclude that the untimely transcripts are
not indispensable to our determination of the questions presented on appeal. Accordingly, we
dismiss the show cause.
                                               -2-
               occurs and the time a final decree of divorce can be granted is
               designed primarily to give the parties an opportunity to reconcil
               . . . the commission of adultery during that period . . . is the one act
               most likely to frustrate and prevent a reconciliation.” Id. at 620,
               303 S.E.2d at 925-26 (emphasis added). Therefore, an act of
               adultery committed beyond the one-year statutorily mandated
               period of separation, and thus, well after the parties have had
               ample time to reconcile, should not constitute grounds for divorce
               where such act clearly had nothing to do with the dissolution of the
               marriage and where the policy of the Commonwealth to promote
               reconciliation is not offended.

For these reasons, wife contends, the trial court erred in allowing husband to file a supplemental

cross-bill alleging the June 2002 acts of adultery and in basing the divorce on those acts.

       In Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969), the Supreme Court held

that the trial court erred in refusing to allow Mr. Rosenberg to file an amended and supplemental

bill of complaint alleging post-separation adultery on the part of Mrs. Rosenberg. Id. at 47, 168

S.E.2d at 253. The Coe Court “decline[d] defendant’s invitation to overrule Rosenberg,” noting

that the General Assembly had not, in the intervening years, chosen to respond to the ruling in

Rosenberg. Coe, 225 Va. at 619, 303 S.E.2d at 925.

       Despite the emphasis wife places on certain language in Coe, we cannot ignore the fact

that the Coe Court explicitly let Rosenberg stand. We have no authority to overrule Rosenberg

or to draw the novel distinction from Coe that wife urges upon us. “[W]e are bound by decisions

of the Supreme Court of Virginia and are without authority to overrule [them].” Roane v. Roane,

12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991).

       Accordingly, we cannot say that the trial court abused its discretion in granting husband

leave to file the supplemental cross-bill or in basing the divorce on the acts of adultery that

occurred in June 2002.




                                                -3-
                                                 II.

        Wife contends the trial court erred in finding that she had sexual relations with someone

other than her husband between December 1996 and June 15, 2001. The trial court made this

finding in its February 2003 opinion letter. However, the court did not grant the divorce based

upon this finding; rather, it granted the divorce based on the finding that wife committed adultery

in June 2002.

        Because we have determined that the trial court did not err in granting husband a divorce

based on the June 2002 adultery, and because the trial court did not grant the divorce based upon

adultery occurring during the 1996-2001 period, we need not address this issue on appeal. The

finding contained in the opinion letter is not relevant to the ground of divorce and is not relevant

to this appeal.

                                                                                          Affirmed.




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