Chandler v. Chandler

• Decision Date: 15 June 1922
• Citation: 112 S.E. 856
• Parties: CHANDLER. v. CHANDLER.
• Court: Virginia Supreme Court

112 S.E. 856

CHANDLER.

v.CHANDLER.

Supreme Court of Appeals of Virginia.

June 15, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Domicile; Resident.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Residence.]

Appeal from Corporation Court of Alexandria.

Suit by Leonard L. Chandler against Rosa B. Chandler. From a judgment for plaintiff, defendant appeals. Affirmed.

The decree under review granted the husband, the appellee, an absolute divorce, on the ground that the wife, the appellant, willfully deserted and abandoned him, without just cause or excuse, more than three years prior to, and continued such desertion for that period next preceding the institution of the suit.

The suit was instituted by the husband on November 1, 1919, in the corporation court of Alexandria, Va.

The bill alleged willful desertion on the part of the wife in 1912 and since continued, as the ground for the absolute divorce sought. There was an answer and separate cross-bill filed by the wife. The answer denied that the husband was a resident of the city of Alexandria at the time he brought the suit, and that he had had his domicile in the state of Virginia for 1 year next preceding the suit; stated that the wife resided in the city of Washington at the time of the suit; and denied the allegation of desertion contained in the bill. The cross-bill con tained the same denials and allegations as the answer on the subject of the residence and domicile of the husband and the residence of the wife, alleging that if the husband's domicile was in Virginia, so was the domicile of the wife; and alleged insufficient support, also cruelty, consisting of striking and beating "with the fist on many occasions" and, specifically, on a particular occasion mentioned in October, 1919, on the part of the husband; and prayed for a divorce from bed and board, for maintenance, alimony, etc.

There was testimony taken by both sides, most of it being heard ore tenus by the judge of the court below.

There were five children born of the marriage, a daughter in January, 1901, twins, a boy and girl, in September, 1903, another child in 1909, which lived only a few days, and another son, born in May, 1912. All of the children mentioned were living at the time of the suit, except the infant that died, as just stated.

There was no actual desertion of the husband on the part of the wife until a few days before the suit was instituted. According to the preponderance of the evidence, the wife did then leave the home of the husband, and rented and occupied a separate place of abode from the husband in the city of Washington, the exact location of which was unknown to the husband at the time he brought the suit; he merely knowing at the time of suit that she was living somewhere in that city. The desertion which was the basis of the decree under review was constructive desertion, consisting, in accordance with the preponderance of the evidence, in the willful withdrawal from the husband, without just cause or excuse, more than 3 years prior to suit, of the privilege of sexual intercourse, and the continuance of such withdrawal down to the time of suit, accompanied by gross neglect of the duties of a wife in attention to the keeping of the room of the husband and his bed in any reasonable condition of cleanliness or comfort, and neglect of such duties in respect to the meals of the husband. And in accordance with the preponderance of the evidence such desertion was preceded by repeated and violent abuse of the husband by the wife, accompanied by repeated charging of the husband with adultery, during a period of some 12 years prior to the 3-year period antedating the suit, continuing up to the time of the desertion aforesaid, and afterwards, down to the time of suit, which charges were groundless, so far as disclosed by the evidence, but which brought on repeated and innumerable quarrels between the parties during these long years, which embittered the lives of both and practically destroyed the existence of any real home more than 3 years before suit.

The evidence is voluminous, conflicting, distressing, and revolting in many of its disclosures. It does not show that the husband was blameless; far from it. Indeed, there was much that was reprehensible in his conduct and which must be condemned. But there were extenuating circumstances in his favor and none equally so in favor of the wife. Her misconduct appears to have been the inciting cause of the deplorable results which followed. It would serve no useful purpose to set forth the evidence in detail. It is deemed sufficient to say here that the clashes and quarrels frequently resulted in personal conflict, in which, on one occasion, soon after the marriage of the parties (which was in 1899), the husband, on being charged by the wife with being too intimate with another woman, lost control of himself, in his anger, and threw the wife across the bed and choked her. This the wife testifies was the most violent assault the husband ever made upon her. In other subsequent quarrels, all brought on, as the wife practically admits in her testimony, by the wife's charging the husband with improper conduct, now with one, now with another suspected woman, the husband slapped the wife, as he admits in his testimony. In short, the result was a home, if it could be called a home, wrecked of all happiness and unfit for the proper upbringing of the children, many more than 3 years before suit. With respect to the beatings of the wife by the husband, the wife testified that: "They were vicious in his attitude. He never struck me very hard." The evidence as to nonsupport need not be further referred to than to say that it was conflicting. Moreover, the testimony of the wife discloses that she did not leave the home when she did, a few days before the suit was brought, because of the nonsupport or the. cruelty of conduct aforesaid on the part of the husband, but for other reasons which are immaterial to the issues in this cause.

As bearing on the question of the jurisdiction of the court, raised by the answer and cross-bill, the uncontroverted facts shown by the evidence are as follows:

The husband was born in Petersburg, Va. He lived there until 1912, having been married there in 1899, as aforesaid. He registered and voted there, and never thereafter transferred his registration to or voted at any other place. About 13 years after bis marriage, being an agent for a life insurance company, and having to travel in different sections of the country, he rented a house and located his family in Lynchburg, Va., coming home at intervals as his work permitted, until 1918, when having been sent by the insurance company which employed him to the city of Washington to take charge of the work of the company there, he moved his family to that city on September 15, 1918 and lived there, in a rented house, until October 30th, when, his wife having left his house, as aforesaid, he went over to Alexandria and rented a room, on October 31, 1918, taking with him one of the children (whom the wife refused to allow to stay with her at her aforesaid separate place of residence and had directed to go with his father), and the husband and son slept in this room at night, from the last-named date until the latter part of December, 1918, shortly before Christmas, when he rented and occupied a room in Washington city.

Further: The husband testified that he had never formed any intention of changing his domicile from Petersburg, Va. That he had always regarded that as his home; that his business was such that his location at any place for any certain length of time was problematical; that that was true also of his location in Washington city; that prior to the suit he had claimed exemption from jury service in that city on the ground that his domicile was in Virginia, and the exemption had been allowed by the court in that city; that he was a bona tide resident of Alexandria on November 1. 1918, when this suit was instituted by him; that he rented the room, which he occupied there, as aforesaid, because his tenancy of the house he had previously rented and occupied with his family, in Washington, terminated October 31st, and because rents were so high at that time in that city. And there was other testimony of several witnesses, other than the husband, corroborating him with respect to the truth of the above statement of facts.

T. Morris Wampler, of Washington, D. C, for appellant.

J. K. M. Norton, of Alexandria, for appellee.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

There are but two questions presented for our decision by the assignments of error: First, whether it appears from the record that the domicile and residence of the husband, the plaintiff, was such that the court had jurisdiction of the cause; and, second, whether there was sufficient evidence before the court below to establish the fact of the constructive desertion and accompanying circumstances relied on by the husband, and, if so, whether such desertion is ground for divorce in this state. These questions will be disposed of in their order as stated below.

1. Does it appear from the record that the husband, the plaintiff, had been domiciled in this state for at least 1 year next preceding the commencement of the suit; that he was domiciled in this state at the time of bringing the suit; that the wife, the defendant, was not a resident of this state; and that the husband was a resident of the city of Alexandria (in which city the suit was instituted) at the time the suit was commenced?

This question must be answered in the affirmative.

The jurisdiction of our courts to grant divorces being a special, statutory, and limited jurisdiction, all of the facts in question concern, not merely the venue, but are jurisdictional, under the provisions of the statute on the subject ...