COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Lemons∗

Argued at Richmond, Virginia 

RUTH BOYD HUGHES 

 OPINION BY 

v. Record No. 1259-99-2 JUDGE JAMES W. BENTON, JR. 

 AUGUST 1, 2000 

RICHARD LEE HUGHES 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 T. Lee Brown, Jr. (Parker, Pollard & Brown, 

P.C., on brief), for appellant. 

 Denis C. Englisby (Englisby & Englisby, on 

brief), for appellee. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

 The trial judge granted Richard Lee Hughes a divorce based 

on a finding that his wife, Ruth Boyd Hughes, had committed 

adultery. The wife contends the evidence does not support the 

finding and that the judge erred by not granting a divorce on 

the ground of a continuous one year separation. She also 

contends the trial judge erred in considering as evidence in the 

divorce case his impressions of evidence given in the separate 

custody proceeding. We reverse the trial judge's decree and 

remand for further proceedings upon the allegation that the 

parties have continuously lived apart for one year. 
I. 

 The wife filed a bill of complaint for divorce on the 

ground that she and the husband had lived separate and apart for 

one year. The bill of complaint noted that the juvenile court 

was "currently exercising jurisdiction over the issues of child 

support, custody and visitation" and made no claim for relief 

for those issues. By a cross-bill, the husband alleged 

desertion and adultery. The wife denied the allegations and 

answered that she fled from the marital residence to escape 

severe mental and physical abuse, which ultimately required her 

to obtain a protective order against the husband. 

 At trial, the evidence was presented by deposition only. 

In her deposition, the wife testified that upon leaving the 

marital residence, she and her children lived with her family 

for about a month until they had to move because it had "gotten 

a little crowded." After that, she stayed at the YWCA Shelter 

for abused women for a week while waiting for an opening at 

another shelter-type facility, St. Joseph's Villa. While she 

was in the YWCA Shelter, her children stayed with her friend and 

co-worker, Michael Kopeski, because her parents could not take 

the children. After a week, the wife and the children moved to 

St. Joseph's Villa and remained there approximately five months. 

The wife and the children then moved into Kopeski's residence. 

The wife testified that she went to Kopeski's residence because 

she had "nowhere to live." The wife testified that she earns 

 - 2 - 
$6.20 per hour, that she has a "hard time making it," and that 

her mother "doesn't have the room or the finances" to allow the 

wife and the children to reside with her. 

 The wife and Kopeski testified in their depositions that 

they maintain separate bedrooms in Kopeski's residence. 

Although they both acknowledged that they are in love with one 

another, both also testified that they are not having sexual 

intercourse. Kopeski testified that "[i]f it's the Lord's 

blessing," he would like to marry the wife after her divorce. 

 In pertinent part, the trial judge ruled as follows: 

 In reviewing the argument of counsel and 

the authorities cited in support of the 

respective position of the parties, the 

Court is of the opinion that adultery has 

been proven by clear, positive and 

convincing proof. In reaching this 

conclusion, the Court has considered not 

only the depositions submitted into evidence 

on this issue, but in addition, the demeanor 

of the [wife] during the course of an ore

tenus hearing conducted on September 19, 

1997, [in the custody proceeding,] wherein 

this Court awarded custody of the parties' 

children, . . . to the [husband]. 

 [The wife] has cohabited with . . . 

Kopeski, . . . in an open and notorious 

fashion for a considerable period of time 

which predates the commencement of the 

instant litigation. The Court, during the 

ore tenus hearing conducted in [the custody 

proceeding] on September 19, 1997, found the 

testimony of the [wife] on this issue to be 

inherently incredible. Furthermore, the 

testimony of the [wife], as reflected in her 

deposition . . . serves only to strengthen 

the belief of this Court of the ongoing 

nature of the adultery that has occurred in 

this case. 

 - 3 - 
 Following the entry of the divorce decree, the wife 

appealed. 

II. 

 If the evidence proves that "multiple grounds for divorce 

exist, the trial judge can use . . . sound discretion to select 

the grounds upon which . . . to grant the divorce." Lassen v. 

Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989). "A 

trial [judge's] determination of matters [that lie] within [the 

trial judge's] discretion is reversible on appeal only for an 

abuse of that discretion." Farley v. Farley, 9 Va. App. 326, 

328, 387 S.E.2d 794, 795 (1990). Furthermore, a trial judge's 

factual finding will "not be set aside unless plainly wrong or 

without evidence to support it." Id.

 "One who alleges adultery has the burden of proving it by 

clear and convincing evidence." Seemann v. Seemann, 233 Va. 

290, 293, 355 S.E.2d 884, 886 (1987) (citation omitted). In 

clarifying that burden, the Supreme Court has held that 

"[s]trongly suspicious circumstances are inadequate" and that 

"[c]are and circumspection should accompany consideration of the 

evidence." Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 

38 (1975) (citation omitted). This high standard of proof 

serves a salutary purpose. 

"A charge of adultery is one of a criminal 

offense and especially and uniquely damaging 

to the reputation of the party charged. The 

general and widely recognized presumption of 

innocence must be indulged against it, and, 

 - 4 - 
while it is not required to be proved beyond 

a reasonable doubt, as in a criminal 

proceeding, the evidence must be at least 

clear and positive and convincing. Raising 

a considerable or even strong suspicion of 

guilt is not enough. The test most 

frequently reiterated (though by no means a 

satisfactory yardstick) is that the proof 

must be such as to lead the guarded 

discretion of a reasonable and just man to 

the conclusion of guilt." 

Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d 437, 439 

(1948) (citation omitted). 

 The wife contends she moved into Kopeski's residence 

because of a lack of financial resources and that the husband 

presented no evidence to corroborate his allegation that the 

wife and Kopeski are engaged in a sexual relationship. She 

argues that the finding of adultery was based on speculation. 

 The husband argues that although the wife and Kopeski both 

deny having sexual intercourse, the following facts proved by 

clear and convincing evidence that the wife has committed 

adultery: the wife and Kopeski have lived in the same house and 

not dated anyone else; they have told one another, "I love you"; 

they share meals and household chores; they occasionally go for 

walks or to the movies; Kopeski testified that he is sexually 

attracted to the wife; and the wife's mother testified that the 

wife lives in Kopeski's home. 

 Although the trial judge found that the husband proved by 

clear and convincing evidence that the wife committed adultery, 

we agree with the wife's contention that the evidence did not 

 - 5 - 
clearly and convincingly support that finding. The evidence 

undisputedly proved that when the wife was forced to leave the 

marital residence, she and the children initially moved in with 

her family. Her parents' financial and medical circumstances 

caused her to leave and to enter a shelter. After she arranged 

to move to another shelter, she moved there with her children. 

Only after being in that shelter for five months did she move 

into Kopeski's home. 

 The wife testified that she continued to live in Kopeski's 

home because she has "nowhere to live." She testified that she 

and the children have their own bedroom in the house. In light 

of her difficult financial circumstances, the wife clearly had 

few options. Obviously, a shelter is not the ideal place for 

the wife, much less her children, to live. Moreover, the 

husband presented no evidence that proved the wife moved into 

Kopeski's residence for any reason other than her desperate 

financial situation. 

 When asked if she could live with her mother, the wife 

explained that she could not, because "[her mother] doesn't have 

the room or the finances." She testified that both she and her 

mother have a "hard time making it" financially. The wife also 

testified that her mother's residence is "seventy-five miles" 

from the wife's place of employment. The wife earns only $6.20 

an hour and does not have health insurance. Kopeski does not 

ask her to pay rent and only asks that she buy the groceries and 

 - 6 - 
assist with the phone bill. She testified that the rest of her 

money goes to various expenses, such as "[h]ospital bills, 

medical bills." 

 The wife and Kopeski consistently testified that they have 

not had sexual intercourse. The husband presented no evidence 

that proved otherwise. Neither the trial judge nor we can hold 

as a matter of law that two people cannot live in the same 

residence without engaging in sexual intercourse until marriage. 

The evidence in this record "is not inconsistent with freedom 

from actual guilt [of adultery]." Haskins, 188 Va. at 531, 50 

S.E.2d at 440. Indeed, in reversing a trial judge's finding of 

adultery in Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865 

(1981), the Supreme Court ruled as follows: 

While we agree that the behavior of the wife 

in the case at hand, when read in connection 

with all other evidence in the record, 

creates suspicion as to her guilt on the 

specific dates in issue, we do not believe 

the evidence amounts to clear, positive and 

convincing proof. "It creates grave 

suspicion as to the intimacy. . . . Yet 

when measured by the rules of human conduct 

and experience as of this day and time, it 

is not inconsistent with freedom from actual 

guilt." 

Id. at 246, 278 S.E.2d at 868-69 (citation omitted); see also

Cutlip v. Cutlip, 8 Va. App. 618, 619-21, 383 S.E.2d 273, 274-75 

(1989). 

 In several cases involving far more evidence of suspicious 

circumstances than in this case, the Supreme Court and this 

 - 7 - 
Court have held that the evidence was insufficient to prove 

adultery. In Painter, the wife discovered white stains on the 

husband's pants and underwear and found another woman's lipstick 

on the husband's shirts. See 215 Va. at 420, 211 S.E.2d at 38. 

She also discovered a note to him saying, "I need you so." 

After she saw her husband in a car with another woman and 

remonstrated with her, she hired private investigators, who 

observed the husband "kissing and embracing [the woman] in her 

automobile." The investigator saw the husband and the woman 

drive separately to another city, meet in that city, enter the 

woman's car, and drive away. They returned several hours later 

and kissed in her automobile. On another occasion, the 

investigator saw the husband's truck in front of the woman's 

home at 11:55 p.m., with only a dim light in the living room. A 

light in the bathroom twice was turned on and off. The 

investigator saw the husband leave at 1:45 a.m. See 215 Va. at 

419, 211 S.E.2d at 38. Although the Supreme Court noted that 

the circumstances created "grave suspicion of an intimate 

relationship," the Court held that "even strongly suspicious 

circumstances are not enough to establish adultery." Id. at 

420, 211 S.E.2d at 38. 

 Similarly, in Seemann, although the evidence proved "highly 

suspicious circumstances," the Supreme Court held that it failed 

to prove adultery. 233 Va. at 294, 355 S.E.2d at 886-87. 

 - 8 - 
[The wife] testified that she had "strong 

feelings" for [the other man] but denied 

that they ever engaged in sexual 

intercourse. While admitting that she and 

[the other man] had slept in the same 

bedroom, she said that they never slept in 

the same bed. When she was asked why she 

had not had sexual intercourse with [the 

other man], [the wife] replied: "Because I 

don't believe in it. It's not God's way. 

God says no to it." When counsel suggested 

that her denial was "rather incredulous," 

[the wife] responded: "I understand that, I 

do. But that's why our relationship is so 

special. I realize it's extremely hard to 

believe in this day and time, but there are 

people out there that have principles today; 

Godly principles." 

[The other man] expressed his love for [the 

wife], but he also denied that they had 

engaged in sexual intercourse. When he was 

asked why they had not had sexual 

intercourse, [the other man] answered: 

"Because we just don't believe that that's 

the way it should be. That's why she's so 

special. That's why I spend the time I do 

with her." In a similar vein, he added: 

"She's that way. She has those beliefs, and 

that's what I find so special about her." 

Id. at 292-93, 355 S.E.2d at 885-86. Holding the evidence 

failed to prove adultery, the Supreme Court ruled that this 

testimony was not "incredible as a matter of law." Id. at 294, 

355 S.E.2d at 887. 

 In Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 516 (1998), 

the evidence also proved suspicious circumstances. After the 

husband returned from extended military duty, he and the wife 

moved into separate bedrooms. At 1:00 a.m. one morning, the 

husband saw the wife and another man kissing in a parking lot. 

 - 9 - 
When the wife saw the husband, she quickly drove away. See 27 

Va. App. at 90, 497 S.E.2d at 517. The wife hid telephone bills 

showing calls made to the other man's residence. The wife also 

used the other man's credit card. The husband found photographs 

of the wife scantily dressed and posed in the other man's 

residence and in his place of business. Although the other man 

and the wife denied having sexual relations, the wife recanted 

her denial and invoked the Fifth Amendment privilege against 

self-incrimination. See id. at 90-91, 497 S.E.2d at 517-18. We 

held that this evidence "created strong suspicion of an intimate 

relationship," id. at 93, 497 S.E.2d at 519, but it was not 

"'clear and positive and convincing' evidence, as required by 

Haskins and its progeny, to support the charge of adultery." 

Romero, 27 Va. App. at 94, 497 S.E.2d at 519. 

 Thus, in determining whether clear and convincing evidence 

supports a finding of adultery, the Supreme Court and this Court 

have consistently reviewed the record to determine not only 

whether the evidence merely established suspicious conduct, but 

also whether a credible explanation existed for the 

circumstances. The husband relies on several cases in which the 

Courts have found clear and convincing evidence of adultery. 

This case, however, is entirely dissimilar from the adultery 

cases upon which the husband relies. Those cases involved 

covert meetings with individuals to whom the spouse was not 

married, the evidence provided no reasonable explanation for the 

 - 10 - 
spouse's conduct, and the record contained ample corroborating 

evidence of adultery. In Coe v. Coe, 225 Va. 616, 303 S.E.2d 

923 (1983), for example, the trial judge found adultery was 

established based on a private detective's testimony that on two 

occasions in the middle of the night, he had observed the wife's 

car outside the unlit apartment of another man and then saw her 

leave early in the morning. See id. at 621-22, 303 S.E.2d at 

926-27. In affirming the trial judge's finding, the Supreme 

Court noted that the wife did not contradict or deny the 

detective's evidence, no other witness contradicted or denied 

that evidence, and the wife made "no attempt to explain her 

relationship with [the man], or her presence in his unlighted 

apartment on the two occasions testified to by the detective." 

Id. at 622, 303 S.E.2d at 927. 

 Similarly, in Higgins v. Higgins, 205 Va. 324, 136 S.E.2d 

793 (1964), the evidence proved that men visited the wife's home 

late at night, where she was seen kissing various men and 

"generally acting indiscreetly." Id. at 327, 136 S.E.2d at 795. 

Accompanying police when they raided a motel, the husband found 

his wife "and a man . . . occupying [a motel] room, both 

scantily clothed in underwear." Id. They had consumed alcohol 

in a room that "was in a used and rumpled condition." Id. The 

Court noted that "[t]he record is replete with evidence that in 

the husband's absence [the wife] kept company with men and at 

various times was seen in compromising positions with them; that 

 - 11 - 
she consumed alcoholic beverages to an excess." Id. at 328, 136 

S.E.2d at 796. 

 Noting the lack of any plausible explanation, the Court in 

Higgins observed that the wife "attempted to explain that she 

and [the man] had gone to the motel room for the purpose of 

discussing some real estate business; that while there she had 

decided to wash her hair after noticing that the motel had soft 

water, and that this accounted for her unclad condition." Id.

at 327, 136 S.E.2d at 795. In attempting to explain why she 

spent another night in a motel room with the same man, "she 

[said she] was lonely and had gone to the room for the purpose 

of 'crying on his shoulder.'" Id. at 327-28, 136 S.E.2d at 

795-96. Given these circumstances of covert conduct and the 

lack of a plausible explanation, the Court concluded "from the 

cold print of the record, that [the wife] has been guilty of 

infidelity." Id. at 328, 136 S.E.2d at 796. See also Derby v. 

Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989) (holding that 

the evidence proving adultery "was not refuted nor was it 

inherently incredible"). 

 Pertinent to this case, we noted in Gamer v. Gamer, 16 Va. 

App. 335, 429 S.E.2d 618 (1993), that a significant 

consideration that detracts from proof of adultery is a lack of 

"evidence that the relationship or living arrangement between 

[the spouse] and the [person with whom that spouse is allegedly 

engaging in adultery] was for economic benefit or personal 

 - 12 - 
convenience or was other than amorous." Id. at 340, 429 S.E.2d 

at 633. In Gamer, a trial judge granted a divorce on the ground 

of one year's separation and found no adultery. See id. at 339, 

429 S.E.2d at 622. We criticized that finding because the 

evidence contained no explanation of the conduct. There, the 

wife discovered the husband clad only in a robe and another 

woman upstairs hiding in a closet of the master bedroom. In the 

master bedroom, "the bed sheets were pulled haphazardly over the 

bed and [the husband's] silk shorts were lying on the floor." 

Id. at 338, 378 S.E.2d at 621. In addition, a detective 

testified that later the husband and the other woman stayed 

overnight at the Gamer home on several occasions. The evidence 

proved that on that occasion the woman's clothing, shoes, and 

other personal belongings were in the master bedroom. See id. 

 Focusing on the lack of credible evidence to explain why 

the woman would be staying with the husband if not because she 

was having an adulterous affair, we said the following: 

Notwithstanding the weighty burden of proof 

to establish adultery and the deferential 

standard of appellate review, the 

commissioner's findings and recommendation 

disregarded the obvious. There was no 

evidence that the relationship or living 

arrangement between [the husband] and the 

woman was for economic benefit or personal 

convenience or was other than amorous. 

Overwhelming evidence was introduced of [the 

husband's] extramarital affair, and the only 

evidence to the contrary was his less than 

credible bare denial. 

 - 13 - 
Id. at 340, 429 S.E.2d at 622 (emphasis added). In affirming 

that decision, we noted, however, that the absence of a finding 

of adultery had no economic impact in that case and, therefore, 

"the error was of no consequence." Id. at 340, 429 S.E.2d at 

622. 

 The evidence in this record amply proved that the wife 

moved into Kopeski's residence because of dire financial 

circumstances after having subjected herself and the children to 

living in a shelter for five months. The wife has not tried to 

conceal the fact that she lives in the same house with Kopeski. 

She has consistently denied that she and Kopeski are involved in 

a sexual relationship. No evidence proved otherwise. 

All that the evidence shows she has done, is 

consistent with her innocence - not 

innocence of suspicion, nor of imprudence, 

nor of questionable conduct - but innocence 

of adultery. 

 "In the social complex[,] men and women, 

and their acts, short of downright 

culpability, must be measured by the rules 

which govern human conduct and which are 

known to common observation and experience 

as of today. Nothing in life is static. 

What one generation condemns, a succeeding 

one countenances. Habits, customs, 

conditions, values, proportions, people 

change. Only a few elements are 'the same, 

yesterday, today and forever.' A great 

thinker said that the most pathetic being is 

a changeless person in a changing world. 

The thought and the conviction is that, 

however reprehensible the conduct of the 

persons here concerned would have been held 

to be a quarter of a century ago, today it 

is accounted perfectly consistent with 

purity of character and innocence of 

 - 14 - 
criminality. Who can say else than that the 

present order is an advance step toward a 

larger measure of truth and justice." 

Haskins, 188 Va. at 532, 50 S.E.2d at 440 (citation omitted). 

 The evidence in this record "fails to point with reasonable 

certainty to a conclusion of [adultery] and leaves one groping 

in the realm of surmise, conjecture, and speculation." Id. at 

532, 50 S.E.2d at 440. Thus, the only reasonable conclusion to 

be drawn is that "the evidence is not inconsistent with the 

[wife's] innocence" of adultery. Cutlip, 8 Va. App. at 621, 383 

S.E.2d at 275. Giving proper deference to the trial judge's 

findings of fact, we, nonetheless, review the sufficiency of 

that evidence as a matter of law. Upon our review, we hold 

that, as a matter of law, the evidence is insufficient to 

sustain the elevated burden of proof of adultery by clear and 

convincing evidence. 

III. 

 The wife contends the trial judge also erred in considering 

his impression of her testimony in an ore tenus hearing, which 

was held in the separate case concerning custody. The record 

establishes that the parties presented evidence only through 

depositions in the divorce proceeding. The trial judge's 

opinion letter states that the judge weighed the wife's 

credibility upon consideration of her testimony in the separate 

custody proceeding. The trial judge's consideration of ore

tenus testimony given in another proceeding was erroneous. 

 - 15 - 
"The general rule is that the court will not 

travel outside the record of the case before 

it in order to take notice of the 

proceedings in another case, even between 

the same parties and in the same court, 

unless the proceedings are put in evidence. 

The reason for the rule is that the decision 

of a cause must depend upon the evidence 

introduced. If the courts should recognize 

judicially facts adjudicated in another 

case, it makes those facts, though 

unsupported by evidence in the case at hand, 

conclusive against the opposing party; while 

if they had been properly introduced they 

might have been met and overcome by him." 

Beanau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979) 

(emphasis added) (citation omitted); see also Russell County 

School Board v. Anderson, 238 Va. 372, 385, 384 S.E.2d 598, 605 

(1989) (holding that "it was plain error for [the trial judge] 

to go outside the record to find another reason to support [his] 

decision"). 

IV. 

 For the foregoing reasons, we reverse the trial judge's 

finding that the evidence proved clearly and convincingly that 

the wife committed adultery. Accordingly, we remand this cause 

to the trial judge for further proceedings upon the wife's 

allegations that the parties have continuously lived apart for 

one year. 

 Reversed and remanded. 

 - 16 - 
Coleman, J., dissenting, in part, and concurring, in part. 

 I believe the evidence supports the trial judge's factual 

finding that Ruth Boyd Hughes committed adultery. In my 

opinion, the majority substitutes its judgment for that of the 

trial judge by making different factual findings and in giving 

greater weight to certain evidence than did the trial judge when 

deciding what inferences to draw from the evidence. In so 

doing, the majority disregards a fundamental tenet of appellate 

review -- that in reviewing a trial judge's decision based on 

factual findings, we will "not . . . set aside [the judgment] 

unless it appears from the evidence that such judgment is 

plainly wrong or without evidence to support it." Code 

§ 8.01-680. 

 Adultery must be proven by clear and convincing evidence. 

Viewing the evidence and the inferences that a fact finder may 

draw from that evidence, in my opinion, the evidence clearly and 

convincingly supports the trial judge's factual finding that 

Ruth Hughes committed adultery while cohabiting for more than a 

year and one-half with Michael Kopeski. 

 The evidence proved that Ruth Hughes and her two children 

moved in Michael Kopeski's home with him in December 1996 and 

they have lived together continuously from that date through the 

date of this appeal. Hughes and Kopeski acknowledged that they 

love one another and plan to marry. Kopeski acknowledged that 

he is sexually attracted to Ruth Hughes. Neither has dated 

 - 17 - 
anyone else during the time they have lived together. They have 

taken trips together, including a trip for her to meet his 

parents. They share the household chores and responsibilities. 

The foregoing evidence is sufficient, in my opinion, to support 

the finding by the trial judge that Ruth Hughes and Michael 

Kopeski have cohabited together for years and have committed 

adultery. 

 Although the record contains evidence which would support 

the majority's contrary factual finding, such as the denial by 

Hughes and Kopeski that they committed adultery and the fact 

that Hughes initially had an economic reason for moving in with 

Kopeski, the trial judge, in the exercise of his exclusive 

authority, decided not to believe their denials or Hughes' 

assertion. Rather, the trial judge drew the reasonable and 

logical inference that two people who are in love and have 

cohabited together for years have engaged in sexual intercourse. 

We, as an appellate court, do not decide which version of facts 

we find more plausible. Furthermore, were we permitted to do 

so, I would reject the majority's reasoning that the evidence 

did not prove adultery simply because it proved that Hughes 

initially sought refuge with Kopeski as a battered wife and 

moved in with him for economic reasons. The majority explains 

that, in today's social environment, men and women, like Hughes 

and Kopeski, live together for various reasons, including 

economic convenience or necessity. Regardless of the factors 

 - 18 - 
that may have initially brought Hughes and Kopeski together, 

they are now living together and are planning to marry, factors 

which support the trial judge's finding of adultery. 

 I also reject the majority's effort to distinguish the 

facts in this case as less compelling to prove adultery than the 

line of cases, which the majority cites, that hold adultery has 

been proven where one spouse is shown to have "covertly" met and 

spent time with a member of the opposite sex at an apartment, 

hotel or motel, or other location. I agree that in those cases 

the fact of the "covert" meetings and lack of a cogent 

explanation for the liaisons supported the trial judge's finding 

of adultery based upon the opportunity to engage in sexual 

intercourse. See Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 

(1983); Higgins v. Higgins, 205 Va. 324, 136 S.E.2d 793 (1964); 

Derby v. Derby, 8 Va. App. 19, 378 S.E.2d 74 (1989). But, the 

undisputed facts in this case establish that Hughes and Kopeski 

have cohabited together since 1996; they have a romantic 

relationship and plan to marry; and the relationship is 

exclusive. These facts are equally, if not more compelling, 

than the "covert" meeting cases in supporting a fact finder's 

conclusion that the two people who have openly cohabited 

together for several years and who plan to marry have committed 

adultery. 

 The majority also cites three cases in support of its 

holding in which, according to the majority, the Supreme Court 

 - 19 - 
and this Court found the evidence insufficient to prove adultery 

on more compelling facts. See Seemann v. Seemann, 233 Va. 290, 

355 S.E.2d 884 (1987); Painter v. Painter, 215 Va. 418, 211 

S.E.2d 37 (1975); Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 

516 (1998). None of those decisions, in my opinion, supports 

the action that the majority takes in this case. In none of 

those cases did the Courts find the evidence insufficient, on 

appeal, to support a finding of adultery. In fact, in Seemann

and Painter the Supreme Court affirmed and expressly upheld the 

factual findings of the trial judge. In Romero, we held that 

the trial judge was bound by the factual finding of the 

commissioner who had heard the witnesses and made credibility 

determinations, rather than the chancellor. These cases support 

the well established standard of appellate review under which 

the appellate court is bound by the factual findings of the 

trial judge when supported by credible evidence, which is the 

case here. 

 For the foregoing reasons, I dissent from the holding of 

the majority with respect to that issue. I would affirm the 

trial court. 

 Finally, as to the majority's holding that the trial judge 

erred by considering Hughes' testimony from the ore tenus

hearing in the separate custody case, in my opinion, that error 

was harmless, see generally Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc), because 

 - 20 - 
the two cases, although filed as separate proceedings, involved 

the same parties, the same judge, and essentially the same 

issues concerning the proof of adultery to support the grounds 

for divorce or changing custody. Admittedly, a different 

attorney represented Mrs. Hughes in the two proceedings, but 

essentially the same evidence was presented in both proceedings, 

even though one was by deposition and one ore tenus. In my 

opinion, the error does not justify reversing the judgment of 

the trial court. 

 - 21 -