## Facts

- David Capps, Sr. (husband) and Patricia Diane Seawell Capps (wife) married on October 9, 1969.
- One child was born to the parties, and the husband adopted the wife’s daughter from a prior marriage (two children in the household).
- Before the marriage, the husband suffered serious combat injuries in Vietnam, leaving him with a paralyzed left arm, a leg brace, and a plate in his head.
- On October 23, 1973, the parties argued at home; during the argument, the wife compared the husband unfavorably to “Gary,” which angered him.
- The husband admitted that he struck the wife one time and then attempted to apologize.
- The wife described a more serious assault (including being struck and choked) and said she left out of fear; evidence corroborated at least that the husband struck her.
- The wife left the marital home that day with the children, and the parties did not resume living together as husband and wife.
- The husband filed a bill of complaint seeking a divorce *a mensa et thoro* on the ground of willful desertion, later amending to add allegations of adultery.
- The wife answered and filed a cross-bill seeking a divorce (based on the October 23, 1973 incident), plus custody, support, and alimony.
- The evidence was taken by depositions. On December 4, 1974, the chancellor entered a decree granting the wife a divorce *a vinculo matrimonii* on cruelty, awarding her custody and child support, and reserving alimony.
- The husband appealed; the Supreme Court of Virginia addressed only (1) the cruelty-based divorce granted to the wife and (2) the denial of the husband’s desertion claim.

## Issues

1. Did the evidence of a single incident of physical cruelty on October 23, 1973 justify granting the wife a divorce *a vinculo matrimonii* on the ground of cruelty?
2. Did the wife’s departure from the marital home after the incident constitute willful desertion entitling the husband to a divorce?

## Decision

- The Supreme Court of Virginia reversed the portion of the decree granting the wife a divorce *a vinculo* on the ground of cruelty.
- The Court affirmed the portion of the decree denying the husband a divorce on the ground of desertion.
- The decree was affirmed in part and reversed in part; matters such as custody and child support were not before the Court on this appeal.

## Legal Principles

- A divorce on the ground of cruelty requires proof of conduct that endangers life, limb, or health, or creates a reasonable apprehension of such danger; a single act may suffice only if it is sufficiently severe or shows a likelihood of serious future harm.
- An isolated assault, without substantial proof that it was severe enough to endanger the spouse’s life or health (including the absence of medical proof of injury), may be legally insufficient to support a cruelty-based divorce.
- A spouse who leaves the marital home is not necessarily guilty of desertion if the separation is caused by the other spouse’s misconduct and the departing spouse is without legal fault; leaving after an assault may be justified even if the assault does not meet the threshold for a cruelty divorce.
- When the evidence is presented by deposition rather than live testimony, an appellate court is less constrained by the trial court’s opportunity to observe witnesses and may independently assess whether the proven facts satisfy the legal standard.

## Conclusion

The Supreme Court of Virginia held that, although the husband wrongfully struck the wife and her departure could be justified, the record did not provide substantial proof that this single incident rose to the level of cruelty required for a divorce *a vinculo matrimonii*; accordingly, the Court reversed the divorce granted to the wife on cruelty while affirming the denial of the husband’s claim for divorce based on desertion.


Capps v. Capps, 216 Va. 382, 219 S.E.2d 898 (1975)