Bond v. Bond, 11033

• Decision Date: 02 June 1959
• Docket Number: No. 11033,11033
• Citation: 109 S.E.2d 16,144 W.Va. 478
• Court: West Virginia Supreme Court
• Parties: Marjorie M. BOND v. William J. B. BOND, Jr.

Page 16

109 S.E.2d 16

144 W.Va. 478

Marjorie M. BOND v. William J. B. BOND, Jr.

No. 11033.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1959.

Decided June 2, 1959.

Syllabus by the Court

1. In a situation involving constitutional rights of religious freedom, the law knows no heresy, and is committed to the support of no dogma.

2. Where, in a divorce suit, a decree grants a divorce to the wife, who is a Jehovah's Witness; awards to her the custody of minor children born to the marriage union; gives to her the right to occupy the dwelling owned jointly by the parties and to use the contents thereof as a home for the divorced wife and minor children; and requires the husband to pay stipulated monthly sums for their support and maintenance; in a subsequent proceeding to modify such divorce decree a decretal provision 'that she [the divorced wife] is hereby enjoined, restrained and prohibited from holding, or permitting others to hold meetings of Jehovah's Witnesses in the home' is void and unenforceable because it places an unconstitutional restraint upon the wife in the exercise of religious freedom as guaranteed to her by Article III, Section 15 of the Constitution of West Virginia.

3. In a suit for divorce, the trial chancellor is vested with a wide discretion in determining the amount of alimony, the amount of support of minor children and in determining awards to the wife of suit money, court costs and counsel fees; and the trial chancellor's determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that he has abused his discretion.

Horace S. Meldahl, Charleston, for appellant.

No appearance for appellee.

CALHOUN, Judge.

This case is before this Court upon appeal from the judgment of the Circuit Court of Cabell County, refusing to grant an appeal from the domestic relations court of that county.

In a suit for divorce, instituted in the domestic relations court, Marjorie M. Bond, hereinafter referred to as 'plaintiff', was granted a divorce on June 18, 1957, from William J. B. Bond, Jr., her husband, herein referred to as the 'defendant'. By the divorce decree, the plaintiff was granted custody of the three infant children born to the marriage union 'with the right and privilege reserved to defendant to visit and see said children, at reasonable times, and so long as defendant conducts himself in a proper and decorous manner upon such visitations'. The decree also gave the plaintiff the right to occupy, with the infant children, the home owned jointly by the parties and to use the contents thereof. The decree further required the defendant to pay monthly to his wife the sum of $25 as alimony, and a like sum for the support of each child, aggregating the monthly sum of $100. In addition, the decree required the defendant to continue to pay the monthly payments of $46.10 in reduction of a lien indebtedness on the residence property.

On August 14, 1957, the defendant gave notice to the plaintiff that, on August 19, 1957, he would apply to the domestic relations court for a modification of the provisions of the divorce decree. His petition filed in pursuance of the notice prayed: 'That the use of the dwelling house by the plaintiff be limited to serving as a home for she and said infant children and not as a meeting place for the Jehovah's Witnesses; that the petitioner be allowed to see and be with said infant children during a definite space of time each week; that the payment of the alimony, provided in said former decree, be curtailed so long as the plaintiff is employed, * * *'. To this petition plaintiff filed her answer praying 'Your respondent, therefore, prays that the petition, filed against her, may be dismissed; that this Honorable Court will increase the support and maintenance provided for the infant children of the parties hereto, to such sums as will adequately support said children and to which this court shall seem just and rasonable. Your respondent further prays that the petitioner herein be required to pay to her a sufficient sum of money to pay her reasonable court costs and attorney fees in this cause expended and for such other and special and general relief as to the court shall seem proper.'

On August 26, 1957, a hearing was had before the court on the petition and answer thereto. In support of his petition the defendant expressed a desire that the court fix a definite formula for his visits with his three children. Specifically, he requested that he be given the privilege of having the children each Saturday evening from six o'clock to nine o'clock. Thereafter questions were propounded to the witness and he gave answers as follows:

'Q. Are you asking the Court to restrict the use of this dwelling house for residential purposes only? A. Yes, sir.

'Q. Now, on what basis are you making that request, will you tell the Court? A. On the basis that they are using the home as a meeting place and a place of worship for a religious organization by the name of Jehovah's Witnesses.

'Q. Are these regular meetings for the whole Jehovah's Witnesses congregation, I should say, or what? A. Yes, sir, they are welcome as I understand, but they are also gathering women from the neighborhood to come in in the afternoon and have meetings.

'Q. And because of this you are asking the Court to restrict--not to restrict the use but that the use of the dwelling house be used for residential purposes only? A. Yes, sir.

On cross-examination questions were asked and the witness gave answers as follows:

'Q. Are you familiar with the organization known as Jehovah's Witnesses? A. Yes, sir, I am.

'Q. Is it your feeling that there is anything wrong with the Jehovah's Witnesses Church? A. Yes, sir.

'Q. Would you mind stating what your objections are? A. I would like to begin quite a few years ago if I may.

* * *

* * *

'A: A few years ago the oldest boy which is nine now went to school and when she had joined the Jehovah's Witnesses, she refused the boy the right to say the allegiance to the flag and in turn that made him nervous and we have taken him to doctors to find out what was the matter with him and we found out there was nothing the matter with him outside of a nervous condition and then I found out she went so far as to go down to school and refused for the boy to say the allegiance to the flag and then she kept the boy from playing in the yard by making him read the literature which took him around an hour and a half.

'Q. That was how long ago? A. That particular part there was last summer and she threatened to whip him or if he didn't go to the meetings she would put him to bed. Then they don't believe in voting. They don't believe in saluting the flag and they don't believe in fighting and they don't believe in hell and they don't believe in the blood and they don't believe in Thanksgiving and they don't believe in Christmas, New Year's or any type of celebration.

'Q. And I take it from your objecting to what you have enumerated here that you believe in just the opposite of all those particular items? A. Yes, sir, I do.'

Thereupon, counsel for the husband interposed an objection as follows:

'The basis of the objection, your Honor, is that this is not proper cross examination, and further, that this line of questioning is going into the merits of the particular religious sect and that in no place in the petition or notice filed herein is there any objection made so far as Mr. Bond is concerned as to her religion. In asking the Court to restrict--not to restrict but to limit the use of this dwelling house for residential purposes only is not to restrict Mrs. Bond in any form whatsoever in her religion and I believe that the testimony in the cross examination here is away off base and has nothing to do with the matters contained in the notice and petition and further, that it delves into the merits which I believe that none of us possibly should entertain at the present time. I object to that line of questioning.'

The cross-examination of defendant was quite lengthy, dealing almost entirely with the tenets of Jehovah's Witnesses. At the conclusion thereof the defendant rested his case. The plaintiff then testified in support of her answer, followed by Billy Bond, age nine, the son of the parties hereto. Ten additional witnesses testified in behalf of plaintiff all affiliated with Jehovah's Witnesses. The entire testimony in behalf of plaintiff was in the main given as an explanation or justification of the tenets, beliefs and religious practices of Jehovah's Witnesses. It would serve no good purpose to relate such testimony in detail. From the entire record, however, it is obvious that the defendant is quite impatient with many of such tenets, beliefs and religious practices, and that he does not want the three infant children to be subject to the influence thereof. It is at this point that the unfortunate battle line is formed.

Marjorie M. Bond testified as follows concerning the use of her home for religious services:

'Q. Will you tell the Court what religious activities, if any, have been carried on in your home? A. I have a Wednesday night Bible study and before the Bible study those that want to come and go out in the service for an hour can and they come at seven and they are gone by about five minutes after seven; and on Saturday they meet and they are there about fifteen minutes and they go out in magazine work then and on Sunday morning they meet and they are there about fifteen minutes and they go out with the bound books.

'Q. Is that all the use that is made of your home for religious purposes of any kind? A. Occasionally on Tuesday night the conductor is there with his wife and sometimes their children, for the back calls. That is on the placements they have made and they call back on people.

'Q. How long does that last? A. Sometimes ten minutes.

'Q. When you have a Bible study in your home, what does that...