Cariens v. Cariens

• Decision Date: 16 November 1901
• Citation: 40 S.E. 335,50 W.Va. 113
• Parties: CARIENS v. CARIENS.
• Court: West Virginia Supreme Court

40 S.E. 335

50 W.Va. 113

CARIENS

v.CARIENS.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1901.

DIVORCE—ALIMONY—RES JUDICATA—CUSTODY OP CHILD.

1. A decree of divorce a mensa et thoro, allowing alimony to the wife, is res judicata as to the alimony; but the husband may be discharged therefrom by the subsequent adultery of the wife.

2. A decree fixing the custody of a child upon decree in a divorce suit is final on the conditions then existing, and should not be changed afterwards, unless on altered conditions since the decree, or on material facts then existing, but then unknown, and for the welfare of the child.

(Syllabus by the Court.)

Appeal from circuit court, Wood county; George Loomis, Special Judge.

Bill by Emma M. Cariens against William S. Cariens. Decree for plaintiff. Subsequently defendant petitioned for relief from the terms of such decree, which was granted, and plaintiff appeals. Modified.

McCluer & McCluer, for appellant.

John F. Laird, for appellee.

BRANNON, P. Emma M. Cariens filed her bill in the circuit court of Wood county against her husband, William S. Cariens, asking a divorce from bed and board and to be given the separate custody of her two children and alimony for the support of herself and the children. She charged in her bill that for a time she and her husband lived happily together, but that after a while he became dissatisfied, and informed her that he intended to leave her, giving as his reason that she would not do her own housework, but required him to hire it done, and that she was bearing him children too rapidly; she then having a female child a little over a year old, named Ruby, and then being within a few weeks of the delivery of another child, which was afterwards born, a boy, and named Walter; that she besought him not to leave her, but that he resisted her entreaties, and declared his unalterable determination to leave her, and later he had a lawyer to prepare a writing which he presented to her with the demand that she sign it, threatening that, if she did not, he would take from her the child already born and the one of which she was then pregnant when it should be born, and all the furniture in the house that he had furnished; that, being sick and nervous under this state of things, she yielded and unwillingly signed this writing under compulsion. The writing is an agreement of separation. By it he released all claim to the custody of the child, Ruby Cariens, then about one year old, and put upon her alone the burden of its support "at her own separate and individual expense"; and it released him from all obligations to support the child, as well as the wife. The bill details his abandonment ofher and the children, unbroken through years, stating that he had never returned to her home to see the children, and never asked to see them, and had through years shown no affection tor them. It states and files two letters, which she afterwards wrote him. These letters are important, as speaking the animus of the wife. One reads as follows: "To My Husband: I know you will be surprised to hear from me again; but, oh! Will, I want you to come home. I can't bear to live as we are living. Think of your two little children. We both promised at the altar, when Ruby was baptized, that each of us would do all in our power to raise her up in the way she should go. The children need you. Let us live together, and do the best we know how, trying in all things to do what is right, and God will help us if we trust in Him. I married you because I loved you more than any one else, and in spite of all changes I have never changed yet. Even if you do not come home for my sake alone, come for the sake of your little son and daughter, for they are your children, as well as mine; but I hope it will be for my sake also. Will, if I thought you wouldn't come, I would rather not live than live as we are." The other letter states that since the article of separation, she, as be was already aware, had had another child, —"our little boy Walter, born to us. I am not able to maintain the children without your assistance. There was no reason for you to leave me, and hence I write to ask you to return and assist me in raising our children. I will do the best I can to help. It is too much for me to do, and I do not think you, either, ought to ask or allow it." He did not return as requested. He filed an answer controverting the representations of the bill; but he took no evidence to disprove its allegations or show her fault in any respect. He did not go upon the witness stand, but she pledged her oath as a witness to the truth of her version of the trouble between them. He did not swear to his answer even. Having proved her bill, a decree was pronounced for a divorce a mensa et thoro, canceling the article of separation, requiring him to pay $10 monthly for the support of his wife and children until the younger child should reach the age of 15 years or Mrs. Cariens should marry. Afterwards the husband filed a petition in the case, charging that his wife was about to leave the state and take the children with her, asking an injunction against her taking the children from the state. She defended this petition, and the injunction was refused. Still later he filed another petition, again charging that she was about to leave the state with the children and asking an injunction. This petition also charged her with adultery with one Walker since the said decree, and prayed that he (Cariens) be given an absolute divorce and the custody of the two children, and be released from the alimony charged upon him by said decree. Mrs. Cariens filed an answer to this petition, denying that she was leaving the state, except for a visit to relatives in Illinois, denying the adultery, and praying on her side for an absolute divorce because of continued abandonment and for custody of the children. A decree was pronounced dissolving the marriage, giving the custody of the boy child to the husband and of the gir1 to the wife, and discharging the husband from any further payment of alimony to Mrs. Cariens. From this decree she appealed.

We do not think the evidence convicts Mrs. Cariens of the grave charge of adultery, and therefore the husband was not entitled to a decree of dissolution of the marriage; but she was entitled to such a decree because of continued abandonment. This, however, is immaterial, as the decree of divorce is general, and we may say it was granted to her as well as to him, and is proper.

As to that provision of the decree releasing the husband from further payment of alimony: Our statute (Code 1899, c. 64, § 11) gives the court in a divorce case continued power after decree to make further decree as to the custody and maintenance of the children; but it does not do so as to the alimony fixed in the decree, and we must look elsewhere for authority to do this. Divorce jurisdiction is the creature of the statute, and the court can only do what it allows, with incident powers. The first decree is conclusive upon the, parties, and finally fixes the right to alimony granted by it upon all the facts existing at its date, and is therefore res judicata. 2 Bish. Mar. & Div. § 877; Fischli v. Fischli, 12 Am. Dec. 251. But the ground on which Cariens rested his prayer for release from that alimony is on facts transpiring subsequent to the decree, — the adultery of his wife. When a decree of absolute divorce gives alimony, the subsequent sexual intercourse by the late wife with other men is no ground for discharging the man from such alimony,...