COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Mc Clanahan and Senior Judge Coleman

SOL ANGEL PERRY MEMORANDUM OPINION * v. Record No. 2323-03-1 PER CURIAM MARCH 30, 2004 LAVADIS ROMEL PERRY

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge (Fred C. Hardwick, II, Guardian ad litem ; Eusner & Hardwick, P.C., on brief), for appellant. (James B. Thomas; Th e Law Offices of J. B. Thomas & Associates, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Sol Angel Perry, wife, appeals the trial court’s granting of a divorce a vinculo matrimonii from Lavadis Romel Perry, husband. On appeal, wife contends th e evidence did not prove husband intended to terminate the marriage at the time of separation. Upon reviewing the record and the briefs of the parties, we conclude that this app eal is without me rit. Accordingl y, we summarily affirm the decision of the trial cour t. Rule 5A:27. The parties were married on August 3, 1990. They had one child wh o was born in 1992. On July 24, 2002, husband filed a bill of complaint seeking a divo rce from wife pursuant to Code § 20-91(9), asserting that the parties had lived se parate and apart without cohabitation and without interruption for one year. At the time of the filing, wife was incarcerated. In his deposition before the commissioner in chancery (commissioner ), husband testified that since about Janua ry 6, 1998, he and wife have lived sepa rate and apart, wi thout cohabitationand without i n terr upti o n. He als o agre ed t h at it ha d be en his int e ntio n since the date of s e parat i on t o remain apart f r om wife perm anently and indef i n itely. He stat ed there is no probability of reconciliation between the pa rties. On cross-examin ation, wif e ’s guardian ad litem as ked husba n d whether he a nd wi fe ha d cohabitat e d i n England in Se pte m ber 1998. Hus b and re plie d t h at i n Septe m ber 1998, wi fe ca me to Engl a nd for one week in or der to “ d ro p off ” their son. Aaron L e e, a

w i tn e s s f o r

hu s b a n d , te s t if ied th at hus b and i n te nde d t h at t h e pa r ties’ separati on be per m a n ent

. T h e comm iss i o n er f i led a repo rt finding t h at t h e pa r ties sepa rate d on or about Ja nua ry 6, 1998 and ha ve li ve d s e pa rate a n d a p ar t continuousl y, wi thout interruption and wit h out c o habit a tion since that time. The co mmissioner also st ated “[t]here is no eviden ce that a reconciliation is probabl e .” Neit her pa rt

y file d any ob jecti o ns t o t h e commi ssi oner’ s r e port

. O n A u gust 6, 2001, the trial court entered a decr ee for divorce a vincul o mat r imonii
purs u a n

t t o Code § 20-91(9) , fi ndi ng that si nce a b out Ja nua ry 6, 1998, the partie s had s e parat e d “wit h t h e int e ntion t h e n a

nd ther e existing that said separation be perm anent.” W i f e noted no obje c tion t o t h is find ing, her guardi an ad litem endorsing the f i nal order w i th a general objection “SEEN AND obj ect [e d] to on be hal f of [a ppella nt ].”
Pur s ua nt to Code § 20-91( A)(9)( a), a di vorc e ma y be gr ante d “ [ o]n the a ppl ication of eit h er party i f and when the hu sba n d and wife have li ve d s e par a te and apart without an y cohabitation and wit h out i n ter r upti o n for one year .” This st atute re quir es “ p roof of a n

i n te nti on on t h e par t of at least

one of the pa rties t o dis c ontinue per m a n entl y t h e marital cohabitation, followed by physical
separ a tion for the st atut or y pe r i o d

. ” H o o k e r v . H ooker , 215 Va . 415, 417, 211 S.E.2d 34, 36 (1975). Husband gave unam b iguous testim ony that it was his intention to perm anently separate from wife. His testim ony was accepted by the co mmi ssioner and the trial cour t. “The credib ility of the witnesses and th e weight acco rded the evidence are matters so lely for the fact finder who has the opportunity to see and hear that ev idence as it is pres e n t e d

. ” S a n d o v a l v .
- 2 -Commonwe a lth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) . The evidence is sufficient to support the trial court' s decision awardi ng husband a divorce on the ground of a one-year separation.
A c co rd ing l y, we s u mm arily affirm th e d e c i s i o n of th e tr ia l c o u r t. A f f i r

m e d

.

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