Cole v. Blankenship

• Citation: 30 F.2d 211
• Decision Date: 14 January 1929
• Docket Number: No. 2736.,2736.
• Parties: COLE et al. v. BLANKENSHIP.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

30 F.2d 211 (1929)

COLE et al. v. BLANKENSHIP.

No. 2736.

Circuit Court of Appeals, Fourth Circuit.

January 14, 1929.

George Poffenbarger, of Charleston, W. Va. (C. M. Ward, of Beckley, W. Va., B. J. Pettigrew and Poffenbarger & Poffenbarger, all of Charleston, W. Va., on the brief), for appellants.

Henry S. Cato, of Charleston, W. Va. (H. W. Houston, of Charleston, W. Va., on the brief), for appellee.

Before NORTHCOTT, Circuit Judge, and WATKINS and SOPER, District Judges.

WATKINS, District Judge.

This is an appeal from the decree of the District Court of the United States for the Southern District of West Virginia, by which appellee was awarded dower in numerous tracts or parcels of land now held by appellants under different claims of title — some in severalty under deeds, others by a number of the appellants as tenants in common through inheritance. All these titles were derived through Patrick L. Blankenship, deceased.

The bill of complaint alleges appellee's marriage to said Blankenship and his seizure of said lands during coverture, while the answer sets up the defense that dower was forfeited under the laws of West Virginia because of appellee's willful desertion of her husband without just cause, persisted in until and at the time of his death, because of a divorce a mensa obtained by him upon these grounds, and also because of certain written agreements in which she released her claim of dower. The marriage took place on May 17, 1923, and thereafter the contracting parties lived together for only a brief and turbulent period. On June 11, 1923, they separated, after entering into a written agreement in which the wife contracted to receive the sum of $3,000 in lieu of dower, and in which she admitted that she had left her husband willfully, voluntarily, and without any just cause that would entitle her to dower. Any effect, however, that this agreement might have had in barring the right of dower, was destroyed by a reconciliation a few days later, which resulted in the wife's then returning to the home of the husband, where she remained until October 6, 1923, under circumstances of constant mutual recriminations. They then separated again, after executing a second written agreement, in which it was stated that they could not live together agreeably; the wife declaring her intention of leaving the husband and agreeing to accept $1,000, together with the amount of money already paid her as a consideration for the relinquishment of all dower rights and all claims of support. Subsequent to this time they never lived together or became reconciled, though there is testimony on the wife's part that she did on a subsequent single occasion return to Beckley, where the husband lived, spent the night, and cohabited with him at his request, and from the evidence we are inclined to believe this statement to be true.

On October 18, 1923, Blankenship filed his bill for divorce in the circuit court of Raleigh county, alleging inter alia that he was and had been for more than one year next preceding the filing of the bill a resident and actual bona fide citizen of West Virginia. He also alleged willful abandonment and desertion, without just cause, by the wife, beginning on October 6, 1923, continuing until and at the time of the filing of the bill. The complaint contained no allegation that the plaintiff resided in Raleigh county, or that the last cohabitation took place therein. It was alleged, however, that the defendant then resided, and had resided from the time of the separation, in the city of Charleston, W. Va. Process was duly served on the defendant on October 19, 1923, and, after due notice to her, depositions were taken and filed, and the commissioner filed his report, which, after stating the grounds of the divorce to be willful and continued desertion testified to by two witnesses, reported the proceeding and proof to be regular, and recommended that a divorce be granted from bed and board. The final decree in the cause was passed on December 6, 1923; it being therein recited that process had been duly issued and served, that depositions had been taken after due and legal notice, that defendant had defaulted in appearance, and it was ordered that the report of the commissioner should be confirmed, that plaintiff was entitled to the relief prayed for, and a divorce a mensa was decreed. From this decree no appeal was taken, and no direct attack upon the judgment has ever been made by appellee, by motion or otherwise, in the original cause.

While it is undoubtedly true, as shown by the testimony in the divorce case and in the subsequent proceedings hereinafter referred to, that Blankenship, prior and at all times subsequent to his marriage with appellee, resided in the town of Beckley, in Raleigh county, and that this was the locus of last cohabitation of the parties, such fact, however, as above stated, is nowhere alleged in the bill of complaint for divorce, and is in no way inferable from the allegations thereof, unless the assertion of his being a resident of the state of West Virginia, coupled with the proper statement of the venue in the caption of the bill as Raleigh county, furnish a basis for such inference. Certainly this would have been insufficient, if tested by proper and timely motion in the original cause.

On or about April 5, 1924, appellee filed in the circuit court of Raleigh county a bill to set aside the divorce decree on the ground that the evidence upon which it had been obtained was false, and that the decree had been obtained by fraud and perjury. In this complaint it is shown that Blankenship's home, from which appellee asserts that she was driven away, was in the town of Beckley, which is in Raleigh county, and she further alleges therein that her last cohabitation with him was at that place. In this suit a large volume of testimony was taken, and the case was matured for hearing at a term of the court held in February, 1925. Meanwhile, Blankenship had died, and an order was passed reviving the suit in the name of his personal representative, and on February 28, 1925, after having heard the depositions on behalf of both parties and argument of counsel, the court adjudged that plaintiff had failed to sustain the allegations of the bill, and the same was dismissed. It does not appear that at any time in that proceeding did the plaintiff therein raise any question as to the jurisdiction of the court, and no appeal was ever taken from the final decree, nor has any attack thereon been made, by motion or otherwise, in the original cause.

The suit in the instant case was begun on March 27, 1926. The court therein held that the divorce decree a mensa did not, under the laws of West Virginia, bar the right of dower; that the parties had separated by agreement; that appellee did not separate from her husband, except for reasons that would have entitled her to a divorce from bed and board; that the separation agreement did not bar the right of dower; and that the divorce decree was null and void, and the proceeding to set same aside was absolutely unnecessary and meaningless. If this decision of the District Court, declaring the divorce proceeding and subsequent suit to annul the same to be void and meaningless, should be sustained, and our decision rest alone upon the conduct of the parties as determining the question of forfeiture of dower, it must be said that there is much in the evidence and in the law to sustain the decree of the learned District Judge. It is well settled that a decree of divorce a mensa is of itself alone no bar to the right of dower. So long as the bonds of matrimony are unbroken, the wife cannot be deprived of her marital rights in her husband's property, if not otherwise forfeited. Kittle v. Kittle, 86 W. Va. 46, 102 S. E. 799; Hartigan v. Hartigan, 65 W. Va. 471, 64 S. E. 726, 131 Am. St. Rep. 973, 17 Ann. Cas. 728; Perine v. Perine, 92 W. Va. 530, 114 S. E. 871.

This, however, does not import that the mere limitation of the decree to a divorce a mensa will preserve the right of dower otherwise forfeited under the statute. Section 7, chapter 65, of Barnes' West Virginia Code, provides that, if a wife voluntarily leave her husband without such cause as would entitle her to a divorce from the bond of matrimony, or from bed and board, and without such cause and of her own free will be living separate and apart from him at the time of his death, she shall be barred of her dower. It is conceded that the parties lived separate and apart from each other from the time of their separation on October 6, 1923, until and at the time of the husband's death. It is evident from the testimony that both parties were devoid of exalted moral character. The husband indulged in rages of ungovernable temper and exhibited evidence of bestial passion and immorality. The wife had been guilty of immorality, resulting in illegitimate offspring, and the relations of the parties, while so briefly living together, failed to furnish the slightest evidence of a recognition of the sanctity which should characterize the marital relation. The indications are that neither found it agreeable, if, indeed, even possible, to endure the odious companionship of the other. The evidence in the instant case shows that one of the chief causes of the separation was due to the husband's treatment of and recriminations concerning the wife's illegitimate child. It must be evident, however, that the husband knew before the marriage of the existence of this child, as well as its status, and that impliedly, at least, he was under obligation to accord it proper treatment and furnish it a home along with its mother.

We agree with the District Judge, also, in holding that the contracts for separation did not furnish sufficient basis for the denial of dower. In order to do so, they must have been fair and just, wholly free from exception, and such as a court of equity might have imposed upon the...