Beard v. Worrell

• Decision Date: 20 December 1974
• Docket Number: No. 13517,13517
• Citation: 158 W.Va. 248,212 S.E.2d 598
• Court: West Virginia Supreme Court
• Parties: James C. BEARD v. Hon. Robert M. WORRELL, Judge, etc. and Margaret O. Beard.

Page 598

212 S.E.2d 598

158 W.Va. 248

James C. BEARD v. Hon. Robert M. WORRELL, Judge, etc. and Margaret O. Beard.

No. 13517.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1974.

Syllabus by the Court

1. Though in some respects a writ of prohibition resembles the remedy of injunction, it is classed among legal remedies, and where it is sought to prohibit a court from operating outside its proper jurisdiction it is not governed by equitable principles because its issuance is predicated upon the State's interest in preserving the rule of law and the orderly administration of justice.

2. 'Alimony is a right of the wife which she may forfeit by her misconduct; and when she is the offender she cannot have an award of alimony in a decree of divorce in favor of her husband, in the absence of a statute which authorizes such award.' Syllabus point 4, State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 (1958).

3. 'A court of equity, in the exercise of its discretion under the provisions of Section 15, Article 2, Chapter 48, Code, 1931, as amended, in a suit for divorce, may not award permanent alimony to a wife who is guilty of misconduct and whose husband is granted a divorce because of such misconduct; and its action in making such award constitutes an abuse of discretion and exceeds its legitimate powers and for that reason is void and of no force or effect.' Syllabus point 5, State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 (1958).

4. 'An agreement entered into by a husband and wife who have separated, the purpose of which is to settle their property rights, is a valid agreement and may be enforced in a proper action at law unless such agreement is induced by fraud, is collusive or is promotive of separation or divorce.' Syllabus point 1, Farley v. Farley, 149 W.Va. 352, 141 S.E.2d 63 (1965).

5. 'Even though a husband has been granted a divorce for the misconduct of his wife, he nevertheless is liable for payments to his wife provided for in a valid property settlement agreement entered into by the parties.' Syllabus point 2, Farley v. Farley, 149 W.Va. 352, 141 S.E.2d 63 (1965).

Lynch, Mann & Knapp, Jack A. Mann, Norman Knapp, Beckley, for relator.

John S. Hrko, Mullens, for respondents.

NEELY, Justice:

A rule to show cause was issued in this original action in prohibition to determine whether there is any reason to disturb the long-standing rule in the domestic relations law of this State that a party against whom a divorce has been granted is not entitled to alimony. As the Court finds that W.Va. Code, 48--2--15 (1953) under which the case of Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 (1958) was decided has not been changed in any way relevant to this question by the 1969 amendment to that section, the Court holds that a party against whom a divorce is awarded is not entitled to alimony and the writ of prohibition is awarded.

On January 19, 1970 petitioner, James C. Beard, was granted a divorce from his wife, the respondent, Margaret O. Beard, by the Circuit Court of Wyoming County in an action in which Margaret Beard originally filed an answer and a counterclaim for divorce. However, at the time of the hearing Mrs. Beard appeared by counsel and withdrew her answer and counterclaim and the action was heard as an uncontested suit. By an agreement between James Beard and Margaret Beard dated January 12, 1970 the parties entered into a property settlement which provided in paragraph 4:

'First Party shall pay to Second party as permanent alimony the sum of $600.00 per month until her death or remarriage, the first such payment to be made February 1, 1970 for the month of February and like payments to be made in advance on the first day of every month thereafter;'

It appears from uncontroverted deposition and affidavit evidence submitted to this Court that Mrs. Beard had a hysterical fear of courts and judges. ¹ The respondent, Mrs. Beard, asserts that the withdrawal of her answer and counterclaim was done as a matter of convenience predicated upon an acceptable property settlement agreement and her psychological inability to appear in court as a party plaintiff.

By order dated January 19, 1970 the circuit court awarded a divorce to Mr. Beard and specifically included the finding, 'The plaintiff has proved grounds for a divorce from the bonds of matrimony with defendant.' The court awarded the physical custody of the parties' infant daughter, Jane Ann Beard, to Mrs. Beard and specifically awarded $600 per month alimony to Mrs. Beard by the following paragraph of the order:

'2. James C. Beard shall pay to Margaret O. Beard alimony in the monthly amount of $600.00, beginning with the month of February, 1970, until said Margaret O. Beard shall re-marry, but shall not be required to pay any additional sum to defendant for the support and maintenance of Jane Ann Beard while residing with defendant. All other provisions pertaining to alimony and support as set forth in the aforesaid agreement of the parties shall be deemed in full force and effect between the parties the same as if fully set forth herein.'

Some months after the initial decree was entered, Mr. Beard petitioned the court for the custody of his daughter and the court changed the custody in his favor.

After paying Mrs. Beard for several months, Mr. Beard stopped paying and in 1973 petitioned the Circuit Court of Wyoming County to declare the January 19, 1970 decree void on the same grounds asserted in this action in prohibition, i.e. that a prevailing party in a divorce action is not liable for alimony. The court denied Mr Beard's petition and thereafter Mrs. Beard brought an action in contempt in which Mr. Beard was adjudged guilty of contempt for being in arrears in his alimony payments in the amount of $6,200. The circuit court granted Mr. Beard a stay of execution of its judgment order to allow him time to test the ruling by this action in prohibition and this proceeding was brought to prohibit the enforcement of the order finding him in contempt.

I

The respondent, Mrs. Beard, asserts as a defense to this action in prohibition the equitable doctrine of 'clean hands.' The Court recognizes that it would appear that the course of conduct surrounding this divorce and subsequent litigation demonstrates unfair dealing on the part of Mr. Beard, as he agreed to pay the sum of $600 a month to his wife by contract and now seeks to avoid an obligation into which he entered voluntarily. The doctrine of 'clean hands,' however, is not available to Mrs. Beard because an action in prohibition is not a proceeding with antecedents in equity. Prohibition is an extraordinary remedy which has traditionally been used in cases of this nature where a circuit court has exceeded its jurisdiction. State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 (1958); Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958).

While the respondent does not cite the cases in her brief, Davis v. Prunty, 114 W.Va. 285, 171 S.E. 644 (1933) and Lyons v. Steele, 113 W.Va. 652, 169 S.E. 481 (1933) would appear to hold that equitable defenses are available in actions in prohibition. However, the matter was clarified in the later case of Harmon v. Spurlock, 121 W.Va. 633, 5 S.E.2d 797 (1939) which states the correct rule that prohibition is a legal remedy. The Lyons case contained some broad dicta which was unnecessary to the holding which read as follows at 113 W.Va. 656, 169 S.E. 483:

'. . . We held, accordingly, that courts in West Virginia are not bound to allow the writ (under Code 1931, 53--1--1) merely because the appellant shows a clear technical right to prohibition; but they should deny the writ (under section 8) whenever he comes not with clean hands, as in the instant case.'

Davis contained similar unfortunate dicta in this regard.

Although both Lyons and Davis were correctly decided on their facts, it will be demonstrated by the following historical discussion that it is incorrect to permit equitable defenses to an action in prohibition.

Historically the writ of prohibition was used to control encroachment on the king's jurisdiction by competing systems of courts. England in the reign of Henry II (1154--1189) was a feudal domain in which the king's courts were struggling to establish a national system of law (i.e., a law 'common' to all parts of England) in the face of competition from traditional local centers of judicial power. II W. Holdsworth, A History of English Law 193 (4th Ed. 1936). Among the strongest competitors for judicial power were the manorial courts of local magnates who held courts for their vassals in furtherance of their authority as landlords, and the ecclesiastical courts which claimed jurisdiction with regard to all matters touching faith and morals. The claims of the ecclesiastical courts presented a monumental problem for the king's jurisdiction because in the middle ages almost everything touched faith and morals, including testamentary disposition of personal property, obligations involving an oath, and all matters concerning the family. I F. Pollock & F. Maitland, History of English Law 124--135 (2d Ed. 1898--Reissued with new introduction and select bibliography by S.F.C. Milsom, 1968).

Resistance from the manorial courts did not present a major political problem, but rather a problem more akin to the resistance which a modern leader experiences in attempting to innovate in the face of an entrenched bureaucracy. (See: S.F.C. Milsom's Introduction to the 1968 Edition of Pollock and Maitland, History of English Law, Cambridge University Press.)

However, the struggle against the courts Christian was another matter, involving as it did a general power struggle throughout Europe between temporal and ecclesiastical authorities. ² The struggle between Thomas Becket and Henry II was basically a struggle concerning the proper domain of ecclesiastical jurisdiction. I Holdsworth, Supra, p. 179; II...