Arrington v. Arrington

• Decision Date: 21 June 1954
• Citation: 82 S.E.2d 548,196 Va. 86
• Parties: WILLIAM ERNEST ARRINGTON v. VANNA BRYANT VALENCHES ARRINGTON
• Court: Virginia Supreme Court

Page 548

82 S.E.2d 548

196 Va. 86

WILLIAM ERNEST ARRINGTON v. VANNA BRYANT VALENCHES ARRINGTON.

Supreme Court of Appeals of Virginia

June 21, 1954.

Oliver & Padgett and Albert O. Burks, for the appellant.

Robert C. Goad and John D. Easley, for the appellee.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

On August 19, 1952, William Ernest Arrington instituted this suit for divorce against Vanna Bryant Valenches Arrington. In his bill he charged the defendant with wilful desertion for more than one year. He alleged that upon her departure she demanded a property settlement; and that in order to avoid unpleasantness and to arrange a settlement of their respective property rights, they entered into a written agreement on November 13, 1950, under which he paid her $6,000 cash, and gave to her certain personal property, in consideration of which she released him of any further obligation to support her and waived any and all rights in his property.

The wife filed an answer in which she denied the charge of desertion; asked that the agreement, mentioned above, be set aside and cancelled, (Virginia Code, 1950, § 20-109), because it was a contract to separate, and as such contrary to public policy; and prayed that a divorce be denied her husband and she be awarded a reasonable allowance for her support and maintenance. She did not ask for a divorce; but on the other hand, averred that she had desired, and still desired, to maintain full marital relations with the complaint.

On May 5, 1953, the trial court set aside the agreement as null and void, on the ground that it was, in effect, a contract to facilitate a separation and promote a divorce; denied a divorce to the complainant; awarded the defendant the sum of $50 per month alimony, beginning May 5, 1953; and dismissed the cause with leave to reinstate on the question of support and maintenance of the wife.

The cause was heard ore tenus by the trial court, except for the short deposition of one witness, too ill to appear in court. This witness, Walter O. Arrington, a brother of the complainant, testified that he 'thought' the defendant left her husband about 1950, and he had heard of no subsequent reconciliation. The evidence relating to the procurement and execution of the separation agreement consists wholly of the testimony of the complainant and the defendant, and like all of the pertinent matters and circumstances of the case is in hopeless conflict.

The chancellor resolved the conflicts in favor of Mrs. Arrington, and, therefore, the finding of the court has the force and effect of a verdict of a jury and settles all questions of disputed fact in favor of the wife. Allen v. Allen, 166 Va. 303, 304, 186 S.E. 17; Owen v. Owen, 175 Va. 245, 248, 7 S.E. (2d) 890; Forbes v. Forbes, 182 Va. 636, 640, 29 S.E. (2d) 829; Lowdon v. Lowdon, 183 Va. 78, 79, 31 S.E. (2d) 271; Collins v. Collins, 183 Va. 408, 412, 32 S.E. (2d) 657; Crump v. Gilliam, 190 Va. 935, 940, 59 S.E. (2d) 72; Henrico v. City of Richmond, 177 Va. 754, 782, 783, 15 S.E. (2d) 309, and cases cited.

The evidence stated, as it must be, in the light most favorable to the wife shows these facts:

The parties to this suit were married on September 5, 1948. At that time Arrington was a bachelor sixty-six years old, and the defendant a widow forty-three years of age. Arrington was a farmer residing in Bedford County. The defendant was living in the same county in the home of a brother of the complainant. She had been formerly married at the age of eighteen. Her first husband was a disabled veteran of World War I, who died in 1938. As a widow she received a pension of $42 per month from the United States Government. She knew that the pension would be discontinued upon her marriage. Arrington told her that he would purchase her a home if she would marry him. In accordance, she assisted him in negotiations which resulted in his purchase of a farm in Bedford County, in April, 1948, the farm being sometimes hereinafter referred to as the 'Lupton Place.' She said that he led her to believe, in accordance with his premarital promise, that he had arranged the purchase so that she would own at least a one-half interest therein.

Immediately after their marriage, the parties moved to the Lupton farm, and there lived happily together with little or no disagreement until May, 1950. She performed the usual duties of a housewife, cooked the meals, cleaned the house, and, in addition, improved the building by plastering and painting some of the rooms. At her insistence, Arrington installed fixtures which provided running water in the home. She also begged him to install a bathroom, but was never able to persuade him to do so.

Arrington was an uneducated man, not able to read or write, and his wife attended to his correspondence, took care of his bookkeeping, and made his bank deposits and withdrawals. She gave personal attention to him, 'cut his hair and toenails, and bathed and shaved him. ' She gave him a good name, and thought that he was 'a very fine man;' but 'pretty tight' with his money. She said that 'We had very few cross words in our entire life. If I could have had Mr. Arrington alone, we'd be together today. ' She was under the impression that some members of her husband's family interfered with their affairs.

The first real rift in their marital relations occurred in May, 1950, when the parties went to the Town of Bedford to close the arrangements for a sale of their home. When the instruments relating to the sale were shown to Mrs. Arrington, she discovered that the home had been conveyed to her husband alone, and that she was not to receive any portion of the sale price. She refused to sign a deed of conveyance and negotiations for the sale were discontinued. Mr. and Mrs. Arrington then returned to their farm home, and continued to live together in the house until the following November. It is conceded by Arrington that his wife continued to perform her wifely duties and ministrations.

Mrs. Arrington said that after the sale of the farm fell through, her husband frequently suggested and insisted upon a separation agreement. He kept asking her 'all the time': 'What would you take to leave here; what would you take to leave here right now?' Finally, on the night of November 12, 1950, in their bedroom they discussed the terms of a separation agreement. On the following day they went to the office of an attorney where the agreement as to their separation and property rights was drawn and executed on the same day.

The agreement, attached to complainant's bill as an exhibit, contains the following recital:

'WHEREAS, differences have arisen between the parties hereto, on account of which they have separated and now live apart, and intend to live apart from each other for the rest of their natural lives.'

It then sets out that the husband had paid $6,000 in cash to his wife, and had given her a studio couch, a sewing machine, and a Studebaker truck to which she held title, in consideration of the release of her husband from any duty or obligation of furnishing her with maintenance and support. It further contained a waiver by each party of all and every right in the property of the other. The agreement was recorded in the clerk's office at two p.m. on the same day, and Mr. and Mrs. Arrington returned to the Lupton farm where they spent the night together as usual.

The next day Mrs. Arrington left the farm, carrying with her most of her personal property. Except for brief visits to dispose of poultry or some farm produce, she did not return. Arrington continued to reside on the farm until he sold it in February, 1951, when he moved to the home of his brother, Walter O. Arrington. While he was living at his brother's home, the defendant frequently visited there, staying sometimes for periods of six or seven weeks. While there, she waited on Mr. Arrington, and they continued the normal relations of a man and his wife. During the whole period between the execution of the separation agreement on November 13, 1950, and the institution of this suit on August 19, 1952, she said that, while they slept in different beds in different rooms, she frequently visited him in his room and there they cohabited as man and wife.

That the parties were on friendly and affectionate terms is evidenced by Mrs. Arrington's statement that 'he kissed me goodbye,' when he left his brother's home, on the morning of the day in which she was later served with the process instituting this proceeding.

Shortly after receiving the $6,000 from her husband, Mrs. Arrington purchased a house and lot in Charlottesville. She sold that property ninety days later, went back to Bedford County, asked her husband to take the $3,900 which she had received from the sale, add to it an amount sufficient to buy ten or twleve acres with a house on it, and let her return there and live with him. He refused.

Her efforts towards a reunion in a home of their own were so persistent that Arrington told her, according to his own testimony: "Vannie don't come running after me now; I've left you and we've settled up, and don't come running after me.' I said, 'We've separated --.' And I stuck to it.'

Asked if he thought it was proper for her to be chasing after him, he replied: 'That's right; chased after me. I wasn't chasing after her, and she was chasing after me.'

Mere separation by mutual consent is not a desertion by either party. Latham v. Latham, 30 Gratt. (71 Va.) 307, 326.

When a separation of husband and wife is by agreement or where the husband assents to, or acquiesces in, the wife's separation from him, he cannot maintain a suit for divorce on the ground of desertion. A separation by mutual consent does not amount to desertion or abandonment in the law. Devers v. Devers, 115 Va. 517, 79 S.E. 1048; Butler v. Butler, 145 Va. 85, 90, 91, 133 S.E. 756; Lowdon v. Lowdon, supra; Bacon v. Bacon, 68 W.Va. 747, 70 S.E....