Bennett v. Bennett

• Citation: 137 W.Va. 179,70 S.E.2d 894
• Decision Date: 27 May 1952
• Docket Number: No. 10444,10444
• Court: Supreme Court of West Virginia
• Parties: BENNETT, v. BENNETT.

Page 894

70 S.E.2d 894

137 W.Va. 179

BENNETT, v. BENNETT.

No. 10444.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1952.

Decided May 27, 1952.

Syllabus by the Court.

1. 'An appearance in a suit or action for any purpose other than to question the jurisdiction of the court, or to set up lack of process, or defective service thereof, is a general appearance.' Point 1, syllabus, Stone v. Rudolph, 127 W.Va. 335, .

2. An attorney at law is presumed to have authority to represent a litigant for whom he makes an appearance in any suit.

3. A client who testifies in his own behalf concerning privileged communications with his attorney thereby waives the privilege.

4. 'Where the jurisdiction of a court to grant a divorce depends upon the existence of certain facts, such facts must be pleaded, and, if not pleaded, the court has no right or power to proceed or act in the cause.' Point 4, syllabus, Jennings v. McDougle, 83 W.Va. 186, .

5. A decree entered in a divorce proceeding where the court does not have jurisdiction of the subject matter is void, and may be attacked collaterally or directly.

6. A decree may be attacked for fraud in a proceeding brought to set it aside, and if fraud be clearly established the decree will be set aside.

7. A decree relating to alimony, support or maintenance, entered in a court of another state having jurisdiction of the parties and subject matter, is entitled to full faith and credit in the courts of this State.

Wolverton & Callaghan, Brooks B. Callaghan, Richwood, for appellant.

Mahan, White & Higgins, Fayetteville, for appellee.

GIVEN, Judge.

Plaintiff, Mary Audrey Bennett, instituted this chancery cause, against Kendall Leroy Bennett, in the Circuit Court of Nicholas County, praying that a divorce decree granted to the defendant, in a prior chancery cause prosecuted in that court against her by Kendall Leroy Bennett, be set aside and held void, and for incidental relief. Defendant demurred to the bill of complaint and filed a plea setting up the divorce decree entered in the former proceeding as constituting former adjudication of matters complained of in the instant proceeding. The circuit court overruled the demurrer, but in the decree overruling the demurrer made this proviso: '* * * provided, however, that upon any hearing herein that plaintiff must first show that she was a resident of Florida, was in Florida, and did not receive personal service of the summons in the divorce suit, and that she did not make personal appearance in defense of same, and did not authorize a general appearance; * * *.' Under that ruling plaintiff was not permitted to introduce evidence as to any issue save those mentioned in the proviso of the decree. The circuit court, after having considered the evidence as to these issues, decided that plaintiff, by counsel, had made a general appearance in the first suit, that she was entitled to no relief, and dismissed her bill of complaint. From that decree this Court granted this appeal.

The parties were married in 1935 in Fayette County, West Virginia. Sometime after the marriage they purchased real estate at Beech Glen, in Nicholas County, taking title thereto jointly, where they resided until about December 29, 1948. On that date they executed a written agreement whereby they agreed to live separate and apart from each other, and further agreed to a settlement of property rights, the wife receiving four thousand dollars in cash and agreeing to convey her one-half interest in the Beech Glen property to the husband. Certain personal property, including a joint bank account and bonds, the value of which is not disclosed, was turned over to the husband. The wife contends, and the husband denies, that a reconciliation was effected by the parties shortly after the making of the contract. The wife contends further that the four thousand dollars was returned by her to the 'family funds' and used partly for living expenses, partly for the purchase of an automobile, title to which was taken in the husband's name, and partly in the purchase of real estate in Tampa, Florida, title to which was also taken in the husband's name. The conveyance of the one half interest of the wife in the Beech Glen property was not executed by the wife. At the time of the separation no child had been born to the parties.

Sometime after the separation the parties went to Tennessee, where they lived in the home of a friend, the wife contending and the husband denying that they there cohabited as husband and wife. About the first of April, 1949, they went to Tampa, Florida, and on the fifth of that month purchased real estate at Tampa, taking title in the husband's name. The real estate purchased consisted of two dwellings and approximately an acre of land. One of the dwellings was occupied by one or both of the parties, certainly much of the time by both, until after the taking of the testimony in the instant proceeding, the wife contending and the husband denying that it was their true and permanent residence.

In December, 1949, the husband instituted a divorce proceeding in the Circuit Court of Nicholas County. Process was issued December 16, 1949, and served on the wife on December 19, 1949, by delivery of a copy thereof to a brother of the wife as 'a member of the family of said Mary Audrey Bennett above the age of sixteen years and giving to the said Warren Hudson information of the purport of such copy, the said Mary Audrey Bennett not being found.' The summons was served at 1628 Red Oak Street on Charleston, Kanawha County, West Virginia, the address having been designated in the praecipe. The summons was mailed to and received by the wife, then in Florida. After having instituted the suit the husband returned to Florida where, according to the allegations of the bill, the parties continued to reside and cohabit as husband and wife. That they did so cohabit seems clearly apparent, from the fact that the wife was delivered of a child on May 21, 1950. The bill alleges, and the wife testifies, that the defendant is the father of the child, and the defendant admits that he could be its father, though he expresses some doubt as to that fact. It will be noticed that the child was conceived subsequent to the time the parties moved to Florida, but before the institution by the husband of the Nicholas County divorce suit.

A jurisdictional question which this Court is required to notice appears from the face of the record in the Nicholas County divorce suit. It is necessary, therefore, to state fully the one charge or ground upon which the divorce decree was sought and granted, cruel and inhuman treatment. The facts alleged as supporting such charge are to the effect: That the wife told the plaintiff about 'embracing and kissing' a certain man; that she indicated in her conversations 'that she may have had other improper relations with' that man; that after plaintiff returned from service in the United States Navy the wife 'constantly quarreled and nagged at your plaintiff, complaining that he has not afforded the luxuries to which she was entitled'; that the wife 'took off her wedding rings and went about in the society of young women and young men telling them that she was unmarried and behaved as such'; that the wife has indicated to the plaintiff that 'she has no love or affection for him'; and that she does not desire to live with him. The bill alleges as a conclusion that the wife has been 'guilty of extreme and repeated cruelty' and that such treatment has caused the plaintiff to suffer 'at the defendant's hands * * * much nervous strain and worry * * * and his health and peace of mind have been seriously affected by the treatment accorded him * * *.'

The evidence is just as void of any facts indicating or relating to acts of cruelty. The husband testified that on one occasion, when he put his arm around his wife, she 'throwed it away; said, 'Don't bother me, I am busy''; that she appeared no longer to have any love or affection for him and did not care to cohabit with him; that a certain man had kissed her and asked her to have sexual intercourse with him, but that she denied kissing the man or having sexual intercourse with him; that her conduct toward plaintiff 'was just like dry land--she didn't care to kiss me goodbye or meet me at the door or nothing else.' He further stated that the wife informed him that she went out with three girls and three boys on one occasion without her weddings rings because 'it would look better on her part to go out without them than with them'. To better illustrate the purport of the evidence, we quote the following question and answer: 'Q. What I want to know here is what she has done to cause you to allege that she has been guilty of treating you with cruel and inhuman treatment? What are the facts, not conclusions? Just how has she done that? A. That is very hard to explain, but it is just like this, in her sneaking way of doing--she is one of these silent people. She don't tell nothing, but she thinks it out ahead of time, and then when the time comes you know about it then, but you didn't know about it before, such as she would tell people she would be at one place, she would come and see them on a certain day, and I would make my plans for that day maybe too, and when the day come she would say, 'Why, I thought I told you about that; I told you I was going down there,' like that, and I wouldn't know a thing about it; my plans would be messed up and hers would too; so most of the time I would give in.' Defendant further testified that he had been living under the same roof with the wife at Tampa, Florida, for several months; that he had there had sexual intercourse with her; that the child of which the wife was about to be delivered could be his.

The only other witness testifying on behalf of the plaintiff was his brother, Teddy Bennett. When asked to detail just how the wife treated plaintiff, he...