Litigation Support

We don't see voicemails in evidence all that often, but Virginia offered a nice salacious opinion incorporating them recently. In Davis v. Davis, the Circuit Court of Madison County found on January 26, 2010, that the combination of explicit voicemails, Viagra kept in the husband's truck and an admitted overnight stay with the lady on the other end of the voicemails tallied up to adultery.

Absolute proof of adultery is not required in Virginia. The evidence presented must be sufficient to produce a firm conviction in the mind of the trier of fact that adultery has taken place.

The husband said (you can't make this stuff up) that he slept on the other woman's couch on the night of the overnight stay, that he had Viagra in his truck because he was humiliated to bring it into the house (though he had told his wife that he was impotent and that Viagra wouldn't help) and that the phone messages, which included a nice helping of "I love yous" and "sex talk" were just a joke.

One of the "joke" voicemails said:

"Looking forward to seeing you Sunday. Appreciate it if you would wear something I could unbutton, preferably with my teeth."

The voicemails were recorded and no doubt the commissioner had a very "blue" day listening to them.

As always, my eyebrows are scorched by what people write and say to a device they know is recording them. The case was a fun read - the tortured explanations of errant spouses fill entire filing cabinets of deposition and trial transcripts around here. I especially liked the "unbutton quote" - conjures quite the image. I like my job . . .

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