118 S.E. 316 (Va. 1923), Heflinger v. Heflinger

Citation:118 S.E. 316, 136 Va. 289
Opinion Judge:Burks, J.
Party Name:Heflinger v. Heflinger
Attorney:Smith & Gordon, for the appellant. Cutchins & Cutchins, for the appellee.
Case Date:June 14, 1923
Court:Supreme Court of Virginia

Page 316

118 S.E. 316 (Va. 1923)

136 Va. 289




Supreme Court of Virginia

June 14, 1923

Appeal from a decree of the Hustings Court, Part II, of the City of Richmond. Decree for complainant. Defendant appeals.



The opinion states the case.

Smith & Gordon, for the appellant.

Cutchins & Cutchins, for the appellee.


Burks, J.

Page 317

[136 Va. 293] By a decree of the Circuit Court of the city of Norfolk, made June 22, 1920, Charles Heflinger was granted an absolute divorce from his wife, Verna B. Heflinger, on the ground of desertion. The decree made no order as to the right of either party to marry again, nor any reference to the statute on the subject. Thereafter, the said Charles Heflinger, the appellee, and Clelia L. Ramsey, the appellant, both of whom were citizens and residents of Virginia and had no intention of changing their citizenship or residences, left Virginia, and on July 10, 1920, were married in the city of Baltimore, Md., and shortly thereafter returned to Virginia and took up their [136 Va. 294] residence in the city of Richmond. The pertinent statutes on the subject are contained in the sections of the Code given in the margin. [*]

Section 5113 is a new section introduced in the statute law of the State by the revision 1919, and not only forbids either party to a divorce suit to marry within six months from the date of the decree for divorce, but further declares that "such bond of matrimony shall not be deemed to be dissolved as to any marriage subsequent to such decree, or in any prosecution on account thereof, until the expiration of such six months." Of this statute the appellee, Charles Heflinger, had both actual and constructive notice and the appellant had at least that notice which is imputed to every citizen of the laws of a general character of the State in which he resides.

A few months after the return of the parties to Richmond to reside, irreconcilable differences arose between them, and the appellee filed the bill in the case in judgment against the appellant for an annulment of their marriage, on the sole ground that it was null and void [136 Va. 295] under the laws of this State. Appellant demurred to this bill, and also answered. In her answer she admits the marriage in Baltimore on July 10, 1920, and that she and appellee had been residents of the State of Virginia for more than one year prior to the institution of the suit, and that she is still a resident, but denies that she had any knowledge of any impediment to their marriage. She further sets up in her answer that the appellee "brutally assaulted her and hit her in the face with a book and drove her out of his room in the presence of one of the doctors of said sanatorium." Upon this point she prays that her

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answer be treated as a cross-bill, and that she be granted a divorce from the appellee. The appellee demurred to the cross-bill. At the hearing upon these pleadings, the trial court overruled the demurrer of the appellant to the bill of the appellee, and sustained his demurrer to the cross-bill, and entered a decree annulling the marriage, which is the decree appealed from.

There are several preliminary questions to be disposed of before coming to the case on its merits.

It is insisted that the trial court was without jurisdiction to hear and decide the case, because its jurisdiction in divorce cases is purely statutory and the case is not within any of the statutes cited, and that section 5113 of the Code has no extra-territorial effect. This is not a suit for divorce, but for the annulment of a void marriage. We do not doubt the jurisdiction of the trial court, but the discussion of the point involved will be deferred in order to avoid repetition. The appellee's answer to the objection to the jurisdiction of the court is that it was not made in the trial court. This answer is not sound. Jurisdiction, as distinguished from venue, must always affirmatively appear, and the objection to the jurisdiction of the trial court may be made in this [136 Va. 296] court for the first time. Shelton v. Sydnor, 126 Va. 625, 102 S.E. 83.

It has been urged upon us that the appellee could not maintain the suit to annul the marriage in consequence of the equitable doctrine of "clean hands" and the maxim in pari delicto. If the jurisdiction to annul the marriage is a purely statutory remedy, plainly given by the statute without condition, there is no appeal to the conscience of the court, and it cannot impose conditions. Hence the maxim of "clean hands" does not apply. 1 Pom. Eq., sec. 398; Smith v. Henkel, 81 Va. 524; McClanahan's Adm'r v. Norfolk & W. R. Co., 118 Va. 388, 87 S.E. 731. The right to bring a suit for annulment is expressly given by section 5100 of the Code, but this is probably merely declaratory of a pre-existing ground of equitable jurisdiction. McClurg v. Terry, 21 N.J. Eq. 225; Fuller v. Fuller, 33 Kan. 582, 7 P. 241; 2 Bish. Mar. & Div. & Sep., sec. 801-ff. Conceding, however, this jurisdiction, the equitable doctrine of "clean hands" is subservient to the public policy of the State, and cannot be invoked in contravention thereof. If section 5113 of the Code is a declaration of public policy on the part of the State, and renders void a second marriage within six months from the date of the decree of divorce, the public interest is such that the remedy afforded by section 5100 of the Code cannot be denied by the application of the doctrine of "clean hands." The doctrine of "clean hands" is closely akin to the maxim in pari delicto, and the two are sometimes discussed as though involving substantially the same principle. The authorities on the application of the doctrine of "clean hands" are not in harmony.

In speaking of the maxim in pari delicto, Judge Green said in Starke's Ex'rs v. Littlepage, 4 Rand. 368: "But this rule applies only in cases where the refusal of [136 Va. 297] the courts to aid either party frustrates the object of the transaction and takes away the temptation to engage in contracts contra bonos mores, or violating the policy of the laws. If it be necessary, in order to discountenance such transactions, to enforce such a contract at law, or to relieve against it in equity, it will be done, though both parties are in pari delicto. The party is not allowed to allege his own turpitude in such cases nor defend at law, or prevented from alleging it in equity, whenever the refusal to execute the contract at law or the refusal to relieve against it in equity would give effect to the original purpose, and encourage the parties engaged in such transactions." This doctrine was reaffirmed in Cardwell v. Kelly, 95 Va. 570, 28 S.E. 953, 40 L.R.A. 240, where, in referring to an illegal contract, the court said: "In a case of the nature of that at bar the court will be governed, in some degree at least, by its particular circumstances. It will consider whether the good of the public and the policy of the law will be subserved and the making of such contracts be discouraged by enforcing the contract in the case before it, or by refusing to do so, and will do the one or the other as will advance the interest of the public and the policy of the law."

We are satisfied that the annulment of such marriages is a more effectual way of preventing such violations of the statutes and public policy of the State than an affirmance of them would be.

Upon the question of the right of the guilty party to bring a suit for the annulment of a marriage which is void by reason of the fact that there is a living consort of a prior marriage, the authorities are in conflict. Probably the weight of American authority denies the right, basing their holdings either upon the doctrine of "clean hands" or the maxim in pari delicto and ignoring the exception [136 Va. 298] to the maxim above mentioned, the interest of the State in the controversy, and the fact that no property rights of the parties are involved. Rooney v. Rooney, 54 N.J. Eq. 231, 34 A. 682; Marre v. Marre, 184 Mo.App. 198, 168 S.W. 636; Ewald v. Ewald, 219 Mass. 111, 106 N.E. 567; Tefft v. Tefft, 35 Ind. 44; Fuller v. Fuller, 33 Kan. 582, 7 P. 241. But the English cases, so far as we have been able to ascertain, uniformly take a different view.

In Miles v. Chilton, 1 Rob. Ecc. 684, 163 Eng. Rep. 1178, Dr. Lushington distinctly held that the fraud of the guilty husband did not debar him from relief, and that he could maintain a suit for annulment. This case was followed by Andrews v. Ross, 14 L. Rep. Prob. Div. 17,

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where it was said by Butt, J., that, while relief would be refused to the offending party in all other courts, it appeared from the authorities "that the Ecclesiastical courts have applied a different rule, and that the principles prevailing in regard to contracts of marriage differ from those prevailing in all other contracts known to the law," and that he felt bound by these decisions.

In Sottomayor v. DeBarros, L. R. 3 Prob. Div. 5, it is said by Cotton, L. J.: "But it is a well recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicile. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but as in other contracts, so in that of marriage, [136 Va. 299] personal capacity must depend on the law of domicile."

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