Colley v. Colley

• Decision Date: 04 March 1963
• Docket Number: No. 5533,5533
• Citation: 129 S.E.2d 630,204 Va. 225
• Parties: CATHERINE ANN COLLEY v. DAVID LEONARD COLLEY. Record
• Court: Virginia Supreme Court

Page 630

129 S.E.2d 630

204 Va. 225

CATHERINE ANN COLLEY v. DAVID LEONARD COLLEY.

Record No. 5533.

Supreme Court of Appeals of Virginia

March 4, 1963.

Harold H. Hersch, for the appellant.

Harold H. Purcell (Arthur C. Stickley, II, on brief), for the appellee.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is a divorce suit in which the only question now presented is whether it was properly brought in Prince William county, Virginia. The court below held that the parties last cohabited as man and wife in Louisa county, Virginia; that the defendant was a resident of the latter county and that jurisdiction was in the circuit court of that county.

The suit was brought in the Circuit Court of Prince William county June 16, 1961, by Catherine Ann Colley, complainant, against her husband, David Leonard Colley, for divorce from bed and board on the grounds of cruelty and desertion. The bill alleged that the complainant resided in Prince William county, that the defendant presently resided in Louisa County, and that the parties last cohabited in Prince William county and were the owners of real property in that county. The defendant filed an answer and cross-bill in which he admitted the allegations of the bill in these respects, but denied other allegations and prayed that a bed and board divorce be granted to him on the grounds of cruelty and desertion.

The cause was referred to a commissioner in chancery to hear the testimony had to report inter alia whether the court had jurisdiction. The commissioner proceeded to hear the evidence offered by the complainant and at its conclusion the defendant moved that it be struck out on the ground that it showed lack of jurisdiction. The commissioner then filed a report submitting that question to the court, along with the evidence taken before him, on consideration of which the court held as above stated and dismissed the cause.

The evidence for the complainant was to the effect that the parties were married in Arlington, Virginia, on February 9, 1956. From August, 1956, to December 21, 1960, they lived together as husband and wife in a house on a lot at Yorkshire Acres, in Prince William county, the title to which was in both of them and on which was also a trailer. In December, 1960, defendant decided that they would go to the home of his parents in Louisa county, Virginia, for the Christmas holidays and stay there until the first of the following month, when he would receive his pension check and then they would come back to Prince William county and he would get out and find work. They went down to Louisa county on December 21, 1960, and visited there with his parents. They took no furniture from their Prince William home and only the clothes they would need for the visit. They both told her mother that they were going to Louisa county just for the holidays. Sometime after they arrived in Louisa county the defendant said he was not going back; that the bill collectors could not find him there, so complainant testified, and since they could not find him they could not do anything with him; and that is where he stayed but he still did not get a job.

In January, 1961, they came back to Prince William county and took complainant's parents down to Louisa county for a christening ceremony, after which the complainant was to return to Prince William and spend a week with her parents and then the defendant was to come back. But the next day he objected to her leaving and a quarrel ensued, following which she left and came back to Prince William without him.

In March, 1961, the defendant came back to Prince William county and brought their two children with him. He had asked the complainant to come back to him, stating that she would not have to sleep with him -- only keep house and watch the children and 'all four of us would be together'. It was then understood that they would live in the house together but not as a married couple. They hoped, she said, that 'by going back together we could iron things out, but it did not work out that way'.

On March 27, 1961, while they were living in the home in Prince William county the defendant left and took the children with him.

The complainant testified that she had sexual relations with the defendant in Prince William county within the week prior to their going to Louisa county on December 21, 1960, and that she also had such relations with defendant in January, 1961, in Louisa county, and that was the last time they had such relations.

Section 20-98 of the 1950 Code provides, so far as we are here conerned, that a suit for divorce shall be brought in the county or corporation in which the parties last cohabited, or at the option of the plaintiff, in the county or corporation in which the defendant resides, if a resident of this State. The provision as to venue is mandatory and jurisdictional. Chandler v. Chandler, 132 Va. 418, 425, 112 S.E. 856 859; White v. White, 181 Va. 162, 170, 24 S.E.2d 448, 452.

The trial court held that according to our decisions in Tarr v. Tarr, 184 Va. 443, 35 S.E.2d 401, and Martin v. Commonwealth, 195 Va. 1107, 81 S.E.2d 574, the phrase 'last cohabited' in the statute means 'last copulated,' and since the evidence showed that the parties last had sexual relations in Louisa county, and the defendant resided there, the Circuit Court of Prince William county was without jurisdiction.

Tarr v. Tarr, supra, dealt with § 5110 of the 1942 Code (Michie), now § 20-94 of the 1950 Code, providing that when a suit for a divorce is for adultery, it shall not be granted if the parties voluntarily cohabited after knowledge of the adultery. There the complainant contended that one act of intercourse was not voluntary cohabitation within the meaning of that statute. We held to the contrary, stating that it was the general rule that a single voluntary act of sexual intercourse by the innocent spouse after knowledge of the offense constituted condonation. DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440, was cited, in which the court was of opinion that it was the intention of the West Virginia legislature that the word 'cohabit' in a similar statute should mean 'copulate'. We concluded that 'voluntary cohabitation,' as used in § 20-94, 'should not be restricted to its literal meaning of having dwelled together under the same roof with more or less permanency'. 184 Va. at 448, 35 S.E.2d at 404.

Martin v. Commonwealth, supra, involved the construction of a paragraph of § 18-97, which is now § 18.1-206, of the 1950 Code, as amended, relating to the crime of pandering. We held that the legislature clearly intended the word 'cohabit' as used therein to mean the having of illegal sexual intercourse.

With respect however to § 20-98 of the Code prescribing the venue of divorce suits, the word 'cohabit' should be given 'its literal meaning of having dwelled together under the same roof with more or less permanency,' as phrased in Tarr v....