Cockerham v. Cockerham

This matter is before the Court on complainant’s exceptions to the Report of the Commissioner in Chancery. Confirming the Court’s oral ruling, complainant’s exception relating to the failure of the Commissioner to find the defendant was responsible for the dissolution of the marriage is overruled. The remaining exception, that the Commissioner erred in finding the date of separation to be January 28, 1986, is sustained. The Court determines the evidence supports a finding that the date of separation was December 12, 1986.

Upon review of the transcript, there appears to be ample evidence the defendant returned to the marital home after her initial departure on January 28, 1986, on numerous occasions, perhaps as often as three to four nights per week. Both parties agree their conjugal relationship continued over an eleven-month period until December 12, 1986. There is no dispute there was no further cohabitation after December 12, 1986.

In her written memorandum to the Commissioner, Defendant relies upon Petachenko v. Petachenko, 232 Va. 296 (1986), to support her contention the separation occurred on January 28, 1986. Petachenko, however, is factually distinguishable from the case at bar. In Petachenko, the Court was faced with a single act of sexual intercourse, *185and the Court’s decision rested upon the circumstances of whether such a single act would establish resumption of marital cohabitation. Under the present circumstances, there were numerous occasions of sexual encounters at the marital home, and an obvious resumption of the conjugal relationship. Despite the fact that the wife’s belongings were elsewhere, it is evident to the Court there was some doubt or indecision on the part of both parties as to the intent to end the marital relationship. In view of such evidence of indecisiveness over an eleven-month period, the Court declines to determine the separation and the intent to terminate the relationship occurred on January 28, 1986. The Court relies upon undisputed testimony that such separation finally occurred on December 12, 1986.