Chapman v. Chapman
| Decision Date | 19 March 1912 |
| Parties | CHAPMAN v. CHAPMAN. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1911.
Syllabus by the Court.
A decree of divorce a mensa or a vinculo, based upon some ground authorized by sections 5 and 6, of chapter 64, Code 1906, alleged in the bill and supported by proof, pronounced after process duly served, and default of appearance by defendant, and which by section 8 of said chapter, cannot be upon bill taken for confessed, cannot at a subsequent term of the court be set aside upon motion by defendant pursuant to section 5, chapter 134, Code 1906. Such decree is final, and so far as based on the facts alleged and proven cannot be re-examined except upon appeal to this court by the party claiming to be aggrieved thereby.
Nor may such a decree be set aside after the term at which it was pronounced upon a petition or bill by defendant in the same court on the ground that the evidence on which the same was predicated is false or insufficient.
By section 13, chapter 64, Code 1906, "when a divorce from bed and board has been decreed for abandonment, or desertion or other cause, and two years shall have elapsed from the bringing of the suit wherein such decree is entered," and such decree has not been revoked, as therein provided and there has been no reconciliation, the injured party on his application to the court pronouncing the decree, alleging and showing such facts, "and the production of satisfactory evidence, taken in support of such application" is entitled to a decree of "divorce from the bonds of matrimony"; and the provision of said statute, giving the court authority, upon such application to read and consider the evidence in the cause taken and filed in the former hearing, will not justify the court on such application, in denying the appellant a decree of absolute divorce.
(Additional Syllabus by Editorial Staff.)
A divorce "a mensa" is by section 12, c. 64, of the Code, a decree of perpetual separation. It operates upon the after-acquired property of the parties, and upon their personal rights and legal capacities, the same as a decree "a vinculo," except that neither party is permitted to marry again during the life of the other; and by section 11 of said chapter, such decree may perhaps be made to operate upon property previously acquired.
The word "may," as used in section 13, c. 64, Code 1906, providing that in certain cases, where divorce from bed and board is decreed, an absolute divorce "may" be granted after certain requirements are fulfilled, means "shall" (citing 5 Words and Phrases, 4420).
Appeal from Circuit Court, Mason County.
Action by Frank A. Chapman against Mary A. Chapman. Decree for defendant, and plaintiff appeals. Reversed, and decree for plaintiff.
B. H Blagg and Somerville & Somerville, for appellant.
Rankin Wiley, for appellee.
The original suit was by husband against wife for divorce from bed and board, on the ground of desertion. Process was duly executed by personal service on defendant in Mason County, where she resided and where suit was brought, but she entered no appearance until after the term at which final decree of separation was on March 18, 1908, on bill and evidence duly taken upon notice likewise served, pronounced against her.
The decree of June 26, 1911, appealed from, among other things, on motion of defendant, made at a subsequent term, pursuant to section 5, chapter 134, Code 1906, sets aside and annuls the decree of March 18, 1908; and on the original bill, and the supplemental bill filed by plaintiff against defendant, pursuant to section 13, chapter 64, Code 1906, after two years from the date of the bringing of his original suit in which he obtained said decree of separation, and the answer of defendant to the said supplemental bill, with replication thereto, and deposition and proofs taken and filed in the cause, said decree also dismisses said original and supplemental bills, with costs to defendant in each case.
Two reasons are recited in the decree for the action of the court in the premises: (1) That plaintiff in his evidence taken and filed on the original bill had failed to show the circumstances under which the alleged desertion and abandonment had taken place; (2) that said evidence does not specifically and clearly prove abandonment by defendant.
The first question presented is, can a decree of divorce a mensa or a vinculo, based upon some ground authorized by sections 5 and 6, chapter 64, Code 1906, and pronounced after process duly executed by personal service upon and default of appearance by defendant, be set aside at a subsequent term on motion of defendant, under section 5, chapter 134, Code 1906? We hold that it cannot; that such decree is final, and so far as it is predicated on the facts alleged and supported by the evidence taken and filed in the cause, it cannot be reheard or re-examined except on appeal to this court by the party claiming to be aggrieved thereby.
Our statute, section 8, chapter 64, Code 1906, provides that: "Such suit shall be instituted and conducted as other suits in equity, except that the bill shall not be taken for confessed, and whether the defendant answer or not, the cause shall be heard independently of the admissions of either party, in the pleadings or otherwise." The jurisdiction given the court or judge thereof by said section 5, chapter 134, to reverse a decree "for any error for which an appellate court might reverse it," as provided thereby, is specifically limited to "a decree on bill taken for confessed." But as no decree for divorce can lawfully be predicated on a bill taken for confessed, we do not see how a decree based on bill, evidence taken and filed in the cause in support thereof, after notice and upon process personally served on defendant, can on mere motion at a subsequent term be reviewed and set aside. If the statute did not deny the right to decree divorce on bill taken for confessed, then, because of said section 8, of chapter 64, we would hold, as courts in other states have held, that a decree on bill taken pro confesso and default of appearance by defendant, would be controlled by the statute applicable in other causes. 14 Cyc. 714. But our statute excepts divorce suits from the general rule authorizing decrees on bills taken for confessed, without further proof, and the provision of section 5, of chapter 134, relating to decrees on bills taken for confessed, ought not, we think, be construed as applying to decrees in divorce cases.
This conclusion, we think, well founded in reason. The decree we are dealing with here is a decree a mensa. In some states courts are prevented from vacating decrees of divorce at a subsequent term, because of the evil consequences likely to flow from so doing. 2 Nelson on Divorce, 1008. Where this is the law it has even been questioned whether courts can set aside their decrees obtained by fraud. Id. 1009. But Chief Justice Bigelow, in Edson v. Edson, 108 Mass. 590, 597 (11 Am. Rep. 393), said, in reply to that question, that it was "an established principle of jurisprudence, that courts of justice have power, on due proceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party without notice has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party. Nor is this principle limited in its operation to courts which proceed according to the course of the common law.
It is equally applicable to courts exercising jurisdiction in equity, and to tribunals having cognizance of cases which are usually heard and determined in the ecclesiastical courts. In tribunals of the last named description, whose decrees cannot be revised by writ of error or review, the proper form of proceeding is by petition to vacate the former decree as having been obtained by fraud upon the party and imposition upon the court."
A decree of divorce a mensa is by section 12, chapter 64, of the Code, a decree of perpetual separation; it operates upon the after-acquired property of the parties, and upon their personal rights and legal capacities, the same as a decree a vinculo, except that neither party is permitted to marry again during the life of the other; and by section 11 of said chapter, such decree may perhaps be made to operate upon property previously acquired. Chapman v. Parsons, 66 W.Va. 307, 66 S.E. 461, 24 L. R. A. (N. S.) 1015, 135 Am. St. Rep. 1033, 19 Ann. Cas. 453. Wherefore we think, where defendant has been served with process, and an opportunity given for full and fair hearing, a decree of divorce ought not to be regarded lightly and subject to be set aside on mere motion at a subsequent term for cause which could have been presented and litigated. 1 Black on Judgments, section 320 an d notes; 2 Bishop on Mar. & Div., section 720.
The next question is, may such a decree be set aside after the term at which it was...
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