Trial Separation:Court Of Appeals Of Virginia Finds Statement Of Intent To Divorce Covered By Rule 803(3)

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Virginia does not have codified rules of evidence, but Virginia courts have recognized a "state of mind" exception to the rule against hearsay, as is made clear by the recent opinion of the Court of Appeals of Virginia in State v. Creacey, 2010 WL 2998764 (Va.App. 2010).

In Creacey,

On April 4, 2005, Margaret, husband's daughter, filed a petition for appointment of limited guardian and limited conservator in Fairfax County Circuit Court because of her father's "physical frailties and mental infirmities of old age." The petition alleged husband suffered from progressive dementia, thus requiring "permanent assistance to care for his physical and medical needs...."

By amended order January 29, 2007, the court found husband to be incapacitated and appointed Margaret and Steven (one of husband's sons) as co-guardians to "attend to the personal affairs...and [to] make decisions regarding his support, care, health, safety...." The order directed that wife have visits and telephone contact with husband. Barbara, another daughter, and Steven were appointed co-conservators to manage husband's estate and financial affairs. The order declined to appoint wife as guardian or conservator, finding she was not qualified. This order was not appealed.

On January 31, 2007, Margaret, as co-guardian of husband, filed a motion for permission to file complaint for divorce, contending a divorce was in husband's best interest. The motion alleged that contact with wife upset husband and he suffered health problems related to continued contact with wife. Husband's physician suggested terminating the visitations. The motion further recited the financial need to sell the marital residence, which wife refused to do, to insure husband's proper care. Such permission was granted by order entered May 10, 2007. That order was not appealed.

The co-guardian filed a complaint for divorce on husband's behalf on December 23, 2008, alleging husband and wife "have lived separate and apart without cohabitation and without interruption for a period of time in excess of one year, having last lived together as husband and wife on or about November of 2005." The trial court heard evidence on August 4, 2009 and considered arguments of counsel.

The court entered a final decree of divorce on August 11, 2009, finding husband and wife have lived separate and apart without any cohabitation and without interruption for over one year, having last lived together as husband and wife on or about November 11, 2005, and that husband "formed the intent to remain permanently separate and apart on or about August of 2006." The trial court, after considering conflicting evidence as to whether husband had an intent to be divorced at the time of separation, found that he did have that intent, indicating the guardian ad litem's testimony to be the most reliable.

The guardian ad litem testified that husband told him that he wanted to divorce wife. The guardian ad litem also offered one sentence of his report, which stated that

"During our meeting [August 14, 2006], Mr. Andrews expressed his desire to be divorced from his wife and the fact that two of his male children had been physically abusive to him."...

Appended to the guardian ad litem's report was a letter dated August 10, 2006, signed by husband which stated in part, "I need to divorce my wife, sell my home and live in safety and peace."  

After the court entered the decree of divorce, wife appealed, claiming, inter alia, that husband's alleged statements of his intent to divorce were inadmissible hearsay. The Court of Appeals of Virginia disagreed, noting that there is a "state of mind" exception to the rule against hearsay, under which

1. The statement must refer to a presently existing state of mind. Although the mental state o[r] emotion must exist at the time of the declaration, it may relate to matters occurring in the past or in the future;

2. There must be no obvious indication of falsification or contrivance[.]

And, according to the court, husband's statements qualified for admission under this exception because

Here, husband's statement expressed a presently existing state of mind, i.e., his intent to divorce. Any conflict as to whether his statement was the product of falsification or contrivance was resolved by the fact finder who accepted those statements as true. Husband's state of mind was central to the proof of divorce and therefore highly relevant. "Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by a person's conduct or by his statements."

-CM