Mcfarland v. Mcfarland

• Decision Date: 02 March 1942
• Citation: 19 S.E.2d 77
• Parties: McFARLAND. v. McFARLAND.
• Court: Virginia Supreme Court

19 S.E.2d 77

McFARLAND.

v.McFARLAND.

Supreme Court of Appeals of Virginia.

March 2, 1942.

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Appeal from Court of Law and Chancery of City of Norfolk; O. L. Shackleford, Judge.

Suit by Alice Lenoir McFarland against James M. McFarland for an adjudication that plaintiff was still the lawful wife of defendant, for other general relief, and to compel the defendant to pay a reasonable fee to plaintiff's counsel for services in the suit. From an adverse decree, the defendant appeals, and the plaintiff assigns cross-error.

Decree modified and, as modified, affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Louis Lee Guy and Breeden & Hoffman, all of Norfolk, for appellant.

James G. Martin & Son, of Norfolk, for appellee.

SPRATLEY, Justice.

The main question for our determination is the effect in Virginia of a decree of divorce granted to a husband in a suit commenced by him by order of publication in North Carolina, when the parties never cohabited in that State, and where a court of competent jurisdiction in Virginia, the matrimonial domicile and residence of the defendant, has previously decreed that the husband was not entitled to a divorce.

James M. McFarland and Alice Lenoir McFarland were married in Norfolk, Virginia, in 1919. There were five children of their marriage. The couple lived together in Norfolk until 1935, at which time they separated and have never cohabited since.

In 1935, McFarland instituted a suit for divorce in the Circuit Court of the city of Norfolk, alleging mental cruelty. After the defendant had filed an answer, that suit was dismissed on the plaintiff's motion, at his cost, without prejudice.

The separation continued, and in November, 1937, McFarland again brought suit for divorce. This suit was instituted in the Court of Law and Chancery of the city of Norfolk. The defendant answered, denying any wrong on her part and alleging that the plaintiff was guilty of desertion, adultery, and intent to marry another woman. That case was heard ore tenus, and decided against McFarland on the merits. By a final decree entered February 5, 1938, the defendant was awarded the custody of four of the children, and alimony and support money for herself and children in the sum of $20 per week. Mrs. McFarland did not file a cross-bill nor ask for a divorce.

On July 30, 1940, Mrs. McFarland applied to the above court for an increase in the allowances to her, and the court allowed her an increase of $5 a week. Immediately thereafter, McFarland informed counsel for the defendant that he had obtained a decree of divorce in North Carolina a few days before.

Mrs. McFarland instituted this suit against the plaintiff in the same Court of Law and Chancery on August 15, 1940. Her bill recited her marriage, the subsequent proceedings in Norfolk for a divorce, and alleged that McFarland had, without notice to her, falsely and fraudulently obtained a divorce in North Carolina. Itfurther averred that McFarland had not been a bona fide resident of North Carolina for more than one year next preceding the commencement of his suit in that State; that the North Carolina court had no jurisdiction over her and no jurisdiction to grant a divorce to her husband; that McFarland falsely testified before the North Carolina court that he was the injured party when he knew the Virginia court had made an adjudication in her favor to that effect; and that he withheld that information from the North Carolina court. She prayed that she be adjudicated to be still the lawful wife of McFarland, for other general relief, and that he be required to pay a reasonable fee to her counsel for services in this suit.

McFarland answered the bill and demurred to it on the grounds that it did not state a case in equity, and that the North Carolina divorce was entitled to full faith and credit under the Constitution of the United States, the Constitution of Virginia, and under the principles of comity between States. The action of the trial court in overruling the demurrer is assigned as error.

The evidence in the present proceeding was heard ore tenus on motion of both parties. On the 19th day of March, 1941, the trial court entered the decree herein complained of, holding that a decree of the Superior Court of Currituck County, North Carolina, entered at its July term, 1940, granting McFarland a divorce, was "null and void and does not divorce the parties." The costs of the proceeding were taxed against McFarland without including a fee to his wife's attorney for services in the cause. McFarland obtained this appeal from that decree. Mrs. McFarland assigns cross-error to the refusal of the trial court to allow her reasonable counsel fees.

The record shows the following pertinent facts:

McFarland, after separating from his wife in 1935, continued to live in Norfolk with his mother. His mother died in April, 1939, and shortly thereafterwards, on April 29, 1939, he moved to Moyock, North Carolina. Moyock is the first small town or hamlet about three miles beyond the State line between Virginia and North Carolina. There he roomed and boarded in the home of a Mrs. Sanderlin; titled his automobile in North Carolina; and paid license, income, and property taxes in that State. There he kept his clothes, received his mail, and opened an active bank account. However, he continued his employment with the United States Government at the Naval Operating Base at Norfolk, commuting each week day by automobile to his work, a distance of about thirty-one miles, in the same manner as a number of other persons who lived at Moyock and worked in Norfolk or Portsmouth.

He testified that he considered North Carolina his home; that he had no intention of leaving there, or returning to Virginia; and that he was still living and maintaining his quarters at Moyock, where he slept every night except when his employment detained him at Norfolk. He entered actively into the social life of Moyock, joined and attended a Sunday school there, sang in the church choir, and did other such overt acts as tended to show the establishment of his domicile in North Carolina.

Mrs. McFarland was not unaware of her husband's intention to secure a divorce because she said he told her, "He would get his divorce if he had to go to the ends of the world." She unavailingly sought to be kept advised of his action to that end. She even had detectives and her son watch his movements. They reported that McFarland often visited the apartment of a woman in Norfolk. He was seen several times in the company of this woman on the streets of that city. One of her sons testified that after December, 1939, he saw his father's car nearly every day in front of the other woman's apartment.

McFarland appears to have changed his clothes sometimes at the apartment and to have gone to the stores and restaurants in her company. His friendship for this woman and his attendance upon her is not questioned; but he denies its bearing upon the question of his domicile.

McFarland put in evidence a certified, exemplified copy of the record in the divorce suit brought by him in the Superior Court of Currituck County, North Carolina, on May 4, 1940, including his affidavit for constructive service of process showing that Mrs. McFarland was a resident of Norfolk, Virginia. The certificate showed that service was made by publication in a newspaper, published in Currituck county. His bill, duly sworn to, merely alleged that he resided in Currituck county and had been a resident of North Carolina for one year; that they were married in 1919 and livedtogether as man and wife until February, 1935, at which time they separated; that they had lived continuously separate and apart from that time; and prayed for a divorce a vinculo matrimonii.

North Carolina Code 1939 (Michie), section 1659(a), relating to divorce and alimony reads: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the state for a period of one year. This section shall be in addition to other acts and not construed as repealing other laws on the subject of divorce."

In North Carolina service of the summons in an action for divorce may be made upon a nonresident by publication. North Carolina Code 1939 (Michie), section 484.

The certificate further shows that the issues in the North Carolina case were submitted to a jury which found that the allegations of the bill were true and that the plaintiff was the injured party. The evidence presented before the jury to justify that finding is not before us. The Superior Court of Currituck County, at its July term, 1940, entered a decree granting McFarland an absolute divorce, dissolving the bonds of matrimony between him and Mrs. McFarland.

The bill of Mrs. McFarland in the present proceeding is a suit to affirm her status as the wife of McFarland, in view of the denial of that relation by the North Carolina decree. It is of vital importance to her to have that question judicially ascertained not only as it may affect her right to draw alimony but also her right to marry again, or dispose of her property.

By Virginia Code 1936, section 5102, it is provided: "When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affirming the marriage, and upon due proof of the validity thereof, it shall be decreed to be valid, and such decree shall be conclusive upon all persons concerned."

Virginia Code, 1936, section 5105¹, further expressly confers upon every court of this State exercising chancery jurisdiction, jurisdiction of a suit for affirming a marriage where the suit is brought in the county or corporation in which the parties last cohabited, and one of the parties is, at the time...