Cameron v. Cameron

• Decision Date: 19 May 1928
• Docket Number: (No. 6174)
• Citation: 105 W.Va. 621
• Court: West Virginia Supreme Court
• Parties: Rose M. Cameron v. Earl R. Cameron

105 W.Va. 621

Rose M. Cameron

v.Earl R. Cameron

(No. 6174)

Supreme Court of Appeals of West Virginia.

Submitted February 1, 1928.

Decided May 19, 1928.

1. Divorce Divorce Decree May be Entered Nunc Pro Tunc on Previous Rendition of Judgment Established by Entry or Memorandum on Court's Records or Quasi Records.

A decree may be entered nunc pro tunc upon a previous rendition of judgment established by some entry or memorandum upon the records or quasi records of the court, (p. 623.)

(Divorce, 19 C. J. § 406.)

2. Appeal and Error Supreme Court of Appeals Will Not Review Questions Which Have Not Been Decided by Lower Court.

This Court will not review questions which have not been decided by the lower court, (p. 628.) (Appeal and EIrror, 4 C. J. § 2536.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Miller, President, absent.

Appeal from Circuit Court, Kanawha County.

Suit by Rose M. Cameron against Earl R. Cameron for the cancellation of a decree annulling a marriage. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

John L. Gillespie and Poffenbarger & Poffenbarger, for appellants.

Beverley Broun, Lon H. Kelly and B. S. Spilman, for appellee.

Litz, Judge:

The plaintiff appeals from the ruling of the circuit court of Kanawha county dismissing her bill for the cancellation of an annulment decree pronounced and entered by the Common Pleas court of that county.

Rose Cameron (nee Kernap), and George Lumley were married December 24, 1900. March 19, 1909, she instituted suit against him for divorce in the circuit court of Boyd county, Kentucky. Having been advised and in good faith believing that the divorce had been granted, April 29, 1910, she married the defendant, Earl Cameron, in the State of Indiana, February 19, 1921. Lumley died August 6, 1922, before a decree of divorce had in fact been entered. Due to alleged cruelty on the part of Cameron she left his home in the City of Charleston, West Virginia, July 9, 1923. October 24, 1923, he instituted suit against her in the common pleas court of Kanawha county to annul the marriage between them on the ground that she was not divorced from Lumley at the time of its celebration. No appearance being made on her behalf, a decree was entered February 2, 1924, granting the relief prayed. The plaintiff and defendant continued to cohabit as man and wife pending the suit and after the decree until on or about July 10, 1925, when he entered into the marriage relation with one Ruth Grigg. During the whole of this period he furnished the plaintiff with ample support, issuing and delivering to her for that purpose, for only a portion of the time, bank checks as follow: check dated January 28, 1924, payable to Rose M. Cameron for $75.00; check dated February 11, 1924, payable to Rose M. Cameron for $50.00; check dated February 23, 1924, payable to Mrs. Earl Cameron for $100.00; check dated February 23, 1924, payable to Rose M. Cameron for $150.00; check dated April 12, 1924, payable to Mrs. Earl R. Cameron for $50.00; check dated June 28, 1924, payable to Mrs. Earl R. Cameron for $75.00; check dated July 24, 1924, payable to Mrs. Earl R. Cameron for $75.00; check dated August 30, 1924, payable to Mrs. Earl R. Cameron for $100.00; check dated August 25, 1924, payable to Mrs. Earl R. Cameron for $75.00; check dated September 27, 1924, payable to Mrs. Earl R. Cameron for $200.00; check dated October 7, 1924, payable to Mrs, Earl R. Cameron' for $700.00; check dated December 7, 1924, payable to Mrs. Earl E. Cameron for $200.00; check dated January 18, 1925, payable to Mrs. Earl R. Cameron for $50.00; check dated March 30, 1925, payable to Mrs. Earl R. Cameron for $100.00; check dated April 22, 1925, payable to Mrs. Earl R. Cameron for $100.00; check dated June 1, 1925, payable to Mrs. E. R, Cameron for $100.00; check dated July 3, 1925, payable to Mrs. Earl R, Cameron for $150.00.

November 20, 1925, the Kentucky court entered a decree nunc pro tunc, dissolving the marriage formerly existing between the plaintiff and George Lumley as of April 29, 1910.

This suit was instituted March 29, 1926, to cancel the decree of annulment on the ground that the plaintiff was induced by false representations of the defendant to forego the defenses open to her in the annulment proceeding. Denying the charge of fraud, the defendant asserts that the plaintiff is not entitled to relief because she could not have successfully defended the annulment proceeding, and for the further reason that the delay in instituting this suit constitutes laches on her part.

Considering these questions in the order stated, could the plaintiff have successfully defended the annulment proceeding? She contends, first, that a decree of divorce was rendered in her favor by the circuit court of Boyd county, Kentucky, against her former husband, George Lumley, April 29, 1910, which, by its entry nunc pro tunc at any time thereafter, would have legalized her marriage with defendant; second, that although no decree had been rendered in the divorce suit at the time of her second marriage, as the case was ready for hearing and had been submitted before that date, a decree could have been both rendered and entered at any time thereafter, dissolving the marriage between the plaintiff and George Lumley as of a date prior to her marriage with the defendant; and third, that her marriage with the defendant had been legalized by cohabitation after the death of Lumley.

There are two classes of cases in which orders nunc pro tunc have been justified. The first class embraces those cases in which the suitors have done all in their power to place the cause in a condition to be decided by the court, but in which, owing to the delay of the court, no final judgment has been entered. The second class of cases embraces those in which judgments, though pronounced by the court, have, from accident or mistake of the officers of the court, never been entered on the records of the court. In Freeman on Judgments, sec. 135, it is stated: "Obviously there can be no judgment of divorce rendered after the death of either of the parties, since that event of itself terminates the status of marriage. Consequently where a party to a divorce suit dies before the rendition of a decree, none can be entered nunc pro tunc. This is true even where an interlocutory decree has been rendered before death, and though the statute provides for the entry of a final decree after the expiration of a prescribed period, since the final decree does not follow as a matter of course. And a statute such as the one mentioned in the preceding section, providing for entry of final judgment in the names of the original parties where either dies after an interlocutory judgment has been held inapplicable to divorce suits. But if a party to a divorce suit dies after submission of a writ or an appeal from the judgment, judgment on appeal may be entered nunc pro tunc as of the date of the submission, at least if some property interests are involved. And pursuant to the general principle that a court may enter nunc pro tunc a judgment previously rendered, if a judgment of divorce has been rendered which the clerk of the court has neglected to enter until after the death of one of the parties, he may be directed to enter it nunc pro tunc as of some day in the lifetime of the decedent, on application of one who was not a party to the cause, and when entered, it becomes operative as of the day of...