                             COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia


PATSY ANNE EAKIN WILLIAMS
                                                            MEMORANDUM OPINION* BY
v.     Record No. 0197-03-3                               JUDGE ROSEMARIE ANNUNZIATA
                                                                 OCTOBER 28, 2003
JAMES MICHAEL WILLIAMS


                   FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                              Robert P. Doherty, Jr., Judge

               Frank W. Rogers, III (Mundy, Rogers & Frith, L.L.P., on brief),
               for appellant.

               No brief or argument for appellee.


       Patsy Anne Eakin Williams (wife) filed a suit for divorce from James Williams (husband)

on the grounds of willful desertion, constructive desertion, and cruelty. The trial court sustained

the husband's demurrer to the wife's amended bill of complaint. Wife appeals the decision.

                                    I. Procedural Background

       Wife filed her first bill of complaint seeking a divorce from husband in 2002. Husband

filed a demurrer to that bill, which the trial court sustained by order dated July 2, 2002. Wife's

motion for leave to file an amended bill was granted by the same order. She filed her amended

bill of complaint on July 11, 2002. Husband filed an answer and cross-bill on July 31, 2002.

       At a subsequent hearing, husband orally noted a demurrer to the pleading, which the trial

court indicated it would accept subject to the filing of a written demurrer. The written demurrer

was not filed until October 29, 2002. By opinion letter dated November 5, 2002, the trial court




       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
sustained the demurrer and entered an order to that effect on December 23, 2002. This appeal

followed. Finding no error, we affirm.

                                      II. Standard of Review

       A demurrer tests the legal sufficiency of a bill of complaint.          Thompson v. Skate

America, 261 Va. 121, 128, 540 S.E.2d 123, 126 (2001).

               While a demurrer does not admit the correctness of the pleading's
               conclusions of law, it "admits the truth of all material facts that are
               properly pleaded, facts which are impliedly alleged, and facts
               which may be fairly and justly inferred." Thus, the sole question
               to be decided by the trial court is whether the facts thus pleaded,
               implied, and fairly and justly inferred are legally sufficient to state
               a cause of action against the defendant. In this context, a plaintiff
               challenging on appeal the sustaining of a defendant's demurrer by
               the trial court need only show that the trial court erred in finding
               that the pleading failed to state a cause of action, and not that the
               plaintiff would have prevailed on the merits of that cause.

Id. at 128, 540 S.E.2d at 126-27 (citations omitted) (quoting Cox Cable Hampton Roads, Inc. v.

City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991)).

       The appellate court thus accepts all allegations in the bill of complaint as true, as well as

all reasonable inferences that flow from them. Ward's Equipment, Inc. v. New Holland N.

America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997). If the allegations sufficiently state

a cause of action cognizable in Virginia, the suit should be allowed to proceed.

                                             III. Facts

       The record establishes that wife filed an amended bill of complaint seeking a divorce

from bed and board on the grounds of willful desertion, constructive desertion, and cruelty. In

support of her amended bill of complaint, wife alleged that: 1) husband cursed her repeatedly; 2)

husband chose to spend evenings with his friends rather than with her; 3) husband was seen on

February 1, 2001 at Cheers, a local bar, drinking and dancing with an unknown female; 4)

husband was seen fondling and kissing this female and mouthing the words "I love you" to her;


                                                -2-
5) "within the last several weeks [of the filing of the bill of complaint on July 11, 2002],"

husband moved out of the marital bedroom and began sleeping in the basement; 6) husband

reestablished himself in the marital bed on July 7, 2002 and refused to leave, and husband told

wife "he could do whatever he wanted in his house"; 7) husband's statement that "he could do

whatever he wanted" made wife fear for her safety and has caused her much stress, emotional

pain, and difficulty sleeping; 8) wife consequently sought the attention of a health care provider;

and 9) both wife and husband have advised their children, family, and friends that they are

getting a divorce.

                                            IV. Analysis

                     A. Wife Failed to State a Cause of Action for a Divorce from
                              Bed and Board on the Ground of Cruelty

       Code § 20-95 authorizes a decree of divorce from bed and board for "cruelty, reasonable

apprehension of bodily hurt, willful desertion or abandonment." "In reality, there are only two

grounds for a divorce [from bed and board]—desertion and cruelty—because cruelty and

reasonable apprehension of bodily hurt are so closely related in the matter of proof and effect."

Haskins v. Haskins, 185 Va. 1001, 1007, 41 S.E.2d 25, 28 (1947).

       The general rule, expressed long ago, is that "the cruelty that authorizes a divorce is

anything that tends to bodily harm and thus renders cohabitation unsafe." Latham v. Latham, 71

Va. (30 Gratt.) 307, 320-21 (1878).        Furthermore, a single act of physical abuse will not

constitute cruelty unless "it is so severe and atrocious as to endanger life" or is likely to be

repeated in the future. DeMott v. DeMott, 198 Va. 22, 28, 92 S.E.2d 342, 346 (1956); accord

Davis v. Davis, 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989).

       Latham also stated, however, that severe mental cruelty, accompanied by malice or actual

menace, may be sufficient under the statute.




                                                 -3-
                [T]here may be cases in which the husband, without violence,
                actual or threatened, may render the marriage state impossible to
                be endured. There may be angry words, coarse and abusive
                language, humiliating insults, and annoyances in all the forms that
                malice can suggest, which may as effectually endanger life or
                health as personal violence, and which, therefore, would afford
                grounds for relief by the court.

Latham, 71 Va. (30 Gratt.) at 321. Subsequent decisions have interpreted this language as an

exception to the general rule that physical cruelty tending to bodily harm must be established.

                The authorities generally, including those in our own State, wisely
                allow for exceptional cases in which there may be extreme cruelty
                without the slightest violence. Mental anguish, repeated and
                unrelenting neglect and humiliation, may be as bad as physical
                wounds and bruises, and may be visited upon an unoffending
                spouse in such degree as to amount to cruelty even in the very
                strict sense in which that term ought always to be used in the law
                of divorce.

Ringgold v. Ringgold, 128 Va. 485, 487, 104 S.E. 836, 840 (1920). The exception to the general

rule also must be understood and applied in light of Virginia's unwillingness to grant a fault-

based divorce for light or transient transgressions against the marital relationship. See, e.g., Coe

v. Coe, 225 Va. 616, 619, 303 S.E.2d 923, 925 (1983) ("A fault divorce cannot be granted

merely because a husband and wife are unable to live together in peace and harmony."); Latham,

71 Va. (30 Gratt.) at 321 ("what merely wounds the feelings without being accompanied by

bodily injury . . . [such as] rudeness of language, want of civil attention . . ., or even occasional

sallies of passion that do not threaten harm, although they be high offenses against morality in

the married state, does not amount to legal cruelty").

       Accepting wife's allegations as true, we find they do not rise to the level necessary to

maintain a suit for divorce on cruelty grounds. She has not alleged physical cruelty, and she has

not alleged anything that tends to bodily harm. She alleged a general fear for her safety, but

nothing more.




                                                -4-
       Her allegations that husband cursed her, chose to spend some nights with his friends

rather than with her, and told her that "he could do whatever he wanted" in his house, show no

more than mere profane language, rudeness, inattentiveness, and a dictatorial manner. The

conduct alleged does not evince the repeated verbal abuse, humiliation, and unrelenting neglect

necessary to sustain a charge of cruelty. See Ringgold, 128 Va. at 497, 104 S.E. at 840; cf.

Baytop v. Baytop, 199 Va. 388, 392, 100 S.E.2d 14, 18 (1957) (finding mental cruelty where

husband fathered an illegitimate child while married, mentally abused his wife for a "long period

of time," and "detrimentally effected [sic] [his wife's] health and nervous system); Sollie v.

Sollie, 202 Va. 855, 857-59, 120 S.E.2d 281, 282-84 (1961) (finding mental cruelty where

husband physically abused his wife on numerous occasions).

       Here, wife's alleged facts show only that she and her husband could not live together

happily. "'The law,'" however, "'does not permit courts to sever marriage bonds and to break up

households merely because husband and wife, through unruly tempers, lack of patience and

uncongenial natures, live unhappily together.'" Upchurch v. Upchurch, 194 Va. 990, 1000, 76

S.E.2d 170, 176 (1953) (quoting Butler v. Butler, 145 Va. 85, 88, 133 S.E. 756, 757 (1926)).

Wife has thus failed to allege sufficient facts to sustain a suit for divorce on the ground of

cruelty.

                  B. Wife Failed to State a Cause of Action for a Divorce from
                      Bed and Board on the Ground of Willful Desertion

       Willful desertion is a ground for divorce from bed and board in Virginia. Code § 20-95.

Willful desertion consists of the breaking off of marital cohabitation and an intent to desert in the

mind of the offender. Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600, 602

(1986). Moreover, desertion cannot occur unless "one spouse breaks off marital cohabitation

with the intent to remain apart permanently, without the consent and against the will of the other

spouse." Barnes v. Barnes, 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993). Willful desertion

                                                -5-
also has been found to exist when an unjustified withdrawal of the privilege of sexual intercourse

is coupled with the willful breach and neglect of other marital duties, rendering "'the marriage

state well neigh intolerable, and impossible to be endured.'" Jamison v. Jamison, 3 Va. App.

644, 647, 352 S.E.2d 719, 721 (1987) (quoting Chandler v. Chandler, 132 Va. 418, 430-31, 112

S.E. 856, 860-61 (1922)).

        Accepting all of wife's allegations as true, we find that she has failed to state a case of

willful desertion. She pled that the parties no longer cohabit together. She failed to plead facts,

however, that establish her husband had the requisite intent to desert. On the contrary, the facts

she presented support the conclusion that her husband did not intend to desert. She alleged that

on July 7, 2002, he tried to reestablish himself in the marital bed. She also stated in her amended

bill of complaint that "[t]he parties have . . . advised their children, family and friends that they

are getting a divorce," an allegation which shows that the decision to divorce was mutual. See

Barnes, 16 Va. App. at 101, 428 S.E.2d at 297 (affirming trial court's ruling that no desertion

occurred where "[t]he facts establish[ed] that both parties had 'accepted that the marriage had

ended, that both intended to separate at some time in the future, and that the husband acquiesced

in the separation'").

        Assuming, without deciding, that it is reasonable to infer from wife's pleading that sexual

intercourse has been withdrawn, she nonetheless failed to plead that her husband abandoned any

other marital duty. Wife, therefore, has not alleged sufficient facts to support her pleading for a

divorce on the ground of willful desertion. Cf. Jamison, 3 Va. App. at 648, 352 S.E.2d at 721-22

(finding desertion where unjustified withdrawal of sexual intercourse was coupled with the

breach of other significant marital duties).




                                                -6-
                  C. Wife Failed to State a Cause of Action for a Divorce from
                    Bed and Board on the Ground of Constructive Desertion

       Constructive desertion may be established by cruelty on the part of one spouse that

justifies the other spouse's decision to discontinue marital cohabitation.        See Hoffecker v.

Hoffecker, 200 Va. 119, 125-26, 104 S.E.2d 771, 776 (1958); Hundley v. Hundley, 182 Va. 14,

16, 27 S.E.2d 902, 902 (1943); Elder v. Elder, 139 Va. 19, 26, 123 S.E. 369, 371 (1924);

Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986).               In other words,

constructive desertion, unlike willful desertion, requires that the abandoning spouse have some

justification in leaving the marital relationship. A spouse is justified in doing so if the other

spouse's conduct amounts to cruelty. See id.

       Wife's claim of constructive desertion dissipates without evidence of cruelty.             As

discussed above, she did not plead facts sufficient to support a claim of cruelty. Accordingly,

she cannot argue constructive desertion based on husband's cruelty towards her.

       Furthermore, wife's reliance in her opening brief on husband's intent to desert as support

for her claim of constructive desertion is misplaced.          She misapprehends the nature of

constructive desertion. Contrary to her assertions, constructive desertion cannot, by force of

logic, require an intent to desert in the mind of the offender. The intent to desert is actually held

by the offended spouse.

       For the reasons stated, we affirm the decision of the trial court sustaining husband's

demurrer.

                                                                                          Affirmed.




                                                -7-
