## Facts

- Charles G. Watts, Jr. (husband) and Linda E. Watts (wife) married in 1980 and had one child.
- Wife filed for divorce in 2001 alleging husband’s adultery with Virginia Mae Glass.
- At an ore tenus hearing, wife presented circumstantial evidence through a private investigator showing repeated late-night meetings between husband and Glass, visits to Glass’s residence, and affectionate conduct.
- Glass’s deposition supported that husband knew her and visited her home.
- When asked under oath whether he had a sexual relationship with Glass, husband invoked the Fifth Amendment.
- The circuit court found adultery proved by clear and convincing evidence, granted a divorce on that ground, and made an unequal equitable distribution based largely on husband’s misconduct as a serious negative nonmonetary contribution.
- The court also classified certain items acquired during the marriage (including a brass bed and certain stock purchased with inheritance-traceable funds) as wife’s separate property.
- Husband appealed the adultery finding, the fault-based unequal distribution, the negative-contribution finding, the property classifications, and the overall disparity.

## Issues

1. Whether the evidence proved husband’s adultery by clear and convincing evidence.
2. Whether the trial court could rely on adultery, as a ground for divorce, when weighing equitable distribution factors under Va. Code § 20-107.3(E).
3. Whether husband’s conduct could be treated as a serious negative nonmonetary contribution justifying an unequal distribution.
4. Whether certain personal property acquired during the marriage was misclassified as wife’s separate property.
5. Whether the substantially disparate distribution was an abuse of discretion.

## Decision

- The Court of Appeals of Virginia affirmed the finding that wife proved adultery by clear and convincing evidence.
- The court affirmed the trial court’s consideration of adultery and related conduct as a negative nonmonetary contribution supporting an unequal equitable distribution under Va. Code § 20-107.3(E).
- The court reversed in part the classification of certain items (including the brass bed and certain stock) as wife’s separate property.
- The case was remanded for further proceedings to reconsider equitable distribution in light of the corrected property classifications.

## Legal Principles

- Adultery must be proved by clear, positive, and convincing evidence; mere suspicion is insufficient, but proof beyond a reasonable doubt is not required.
- Adultery may be proved by circumstantial evidence, and the factfinder may draw reasonable inferences from conduct and surrounding circumstances.
- A party’s invocation of the Fifth Amendment in response to questions about adultery may be considered with other evidence when assessing whether the burden of proof is met in a civil divorce proceeding.
- In equitable distribution, the court must consider the statutory factors in Va. Code § 20-107.3(E), including circumstances contributing to the dissolution of the marriage, specifically including any ground for divorce.
- Marital fault, including adultery, may be weighed as a serious negative nonmonetary contribution and may support an unequal division of the marital estate.
- Property acquired during marriage is presumed marital; inheritance-derived property begins as separate, but can be treated as marital if the evidence shows donative intent to the marriage, commingling, or other conduct transforming its character.

## Conclusion

The Court of Appeals upheld the divorce based on adultery and approved the trial court’s use of that fault as a statutory equitable distribution factor supporting an unequal award, but reversed certain separate-property classifications and remanded for redistribution consistent with the corrected marital property determinations.


Watts v. Watts, 40 Va. App. 685 (Va. Ct. App. 2003)