
    CIRCUIT COURT OF FAIRFAX COUNTY
    Sarah Leitner v. Robert Leitner
    May 17, 1988
    Case No. (Chancery) 105579
   By JUDGE F. BRUCE BACH

This matter is before the Court on Complainant’s Motion to Compel Answers to Interrogatories and for an award of counsel fees. The Court heard argument on April 15, 1988, at which time the matter was taken under advisement.

Sarah Leitner filed a Bill of Complaint for divorce against Robert Leitner on the grounds of adultery. Mr. Leitner denied the allegations and filed a cross-bill seeking a divorce on constructive desertion. In this cross-bill Mr. Leitner alleged that he had been a "faithful and dutiful" husband.

In response to certain interrogatories propounded by Mrs. Leitner relating to adultery, Mr. Leitner invoked his Fifth Amendment right against self-incrimination. He refused to answer interrogatories 13, 14 and 15 claiming that he could be subject to prosecution for adultery pursuant to Va. Code § 18.2-365. Mrs. Leitner maintained that he waived his constitutional right by denying adultery and affirmatively alleging his faithfulness.

In Virginia, a party can exercise his constitutional privilege against self-incrimination in a civil action. Va. Code § 8.01-223.1. However, this Fifth Amendment right may be waived. Woody v. Commonwealth, 214 Va. 296 (1973). Once waived, a party is thereafter bound by his waiver. Yates v. Peyton, 207 Va. 91, 99 (1966). In a civil action, a moving party cannot refuse to answer a question relevant to the cause of action or to possible defenses to the claim. Davis v. Davis, 233 Va. 452 (1987). The allegation of faithfulness in the cross-bill thus "opened the door" for interrogatories relating to the issue of adultery. Further, Mr. Leitner waived his right against self-incrimination by denying allegations of adultery in his answer rather than invoking his Fifth Amendment right at that time. Mr. Leitner cannot now assert this constitutional right after twice waiving it.

For the reasons stated above, Mr. Leitner must answer interrogatories 13, 14 and 15. Complainant’s request for counsel fees is denied.  