Cooley v. Cooley, 780373

• Decision Date: 29 February 1980
• Docket Number: No. 780373,780373
• Citation: 263 S.E.2d 49,220 Va. 749
• Parties: Carolyn J. COOLEY v. Cyrus E. COOLEY, Jr. Record
• Court: Virginia Supreme Court

Page 49

263 S.E.2d 49

220 Va. 749

Carolyn J. COOLEY v. Cyrus E. COOLEY, Jr.

Record No. 780373.

Supreme Court of Virginia.

Feb. 29, 1980.

Stuart L. Craig, Danville (Carter, Craig & Bass, Danville, on brief), for appellant.

John W. Carter, Danville (Carter & Wilson, Danville, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

PER CURIAM.

In this civil appeal, we consider whether a post-nuptial separation agreement and a subsequent contract modifying the agreement were void and unenforceable as facilitating separation or divorce.

Appellant Carolyn J. Cooley, the wife, instituted this proceeding below by motion for judgment against appellee Cyrus E. Cooley, Jr., her former husband, seeking recovery of almost $11,000. The action is based on the husband's alleged failure to comply with the spousal support provisions of a 1971 North Carolina separation agreement as modified by a 1972 North Carolina contract.

After a bench trial, the court below decided that the instruments in question facilitated or promoted the parties' separation or divorce and thus were void as contrary to public policy. We awarded the wife an appeal from the February 1978 judgment order entered in favor of the husband.

Married in 1958 when he was in his mid-thirties and she in her mid-forties, the parties cohabited thereafter in California, Virginia and Georgia. In 1967 they moved to North Carolina where the husband became employed by Burlington Industries. Marital difficulties subsequently arose. According to the husband's testimony, denied by the wife, "she spent about fifty percent of her time in California and the other fifty percent with me" during the period from 1968 to the separation of the parties. The husband stated, "It was not uncommon for her to go (to California) and stay three months at a time, because she had her family out there and left me by myself."

In 1971, when it became apparent to the parties that a separation was inevitable, the wife "insisted" that a written agreement for her support be executed to provide "some security" following the separation. The husband's North Carolina attorney prepared the agreement and it was executed by the parties on June 16, 1971. The separation occurred on that day, or the day after, when the wife left the marital abode in North Carolina and travelled to California.

The evidence was in conflict as to the precise cause for the separation and whether or not it was to be permanent. The reason assigned by the husband was that she "wanted to live in California more than she did in the Eastern part of the United States." He testified she "deserted" him and he did not expect her to return. When asked whether he wanted her to come back, Cooley replied, "Very frankly, based on everything that occurred up to the point at which she left, I didn't see that it was possible to save our marriage." On the other hand, the wife blamed Cooley for what she thought was to be a temporary separation, stating, "He said he wanted me to go to California to see if he missed me and he would have me back on Christmas . . . ."

The agreement recited in an introductory paragraph:

That whereas, the said Cyrus E. Cooley and Carolyn G. Cooley are lawfully married; and whereas, after said marriage the parties hereto lived together as man and wife, and whereas the said parties hereto are very unhappy and in consequence of the circumstances under which they are now living it is reasonably necessary to the health and happiness of both of said parties that they should live separate and apart; and whereas, in consequence of existing conditions it has been decided by the parties hereto that it is to the best interest of all concerned for the parties hereto to make and enter into an agreement of separation . . . .

The instrument required the husband to pay her $350 per month for support and required him to maintain a group medical benefits insurance policy covering her. The agreement also adjusted property rights between the parties, provided for the release of curtesy and dower, and released the husband from any other obligation to pay "support, maintenance, or alimony" in the future.

Following the separation, the husband proceeded to make support payments in accordance with the agreement. The wife remained in California until the Spring of 1972 when she returned to North Carolina. According to her testimony, this was an unsuccessful attempt to effect a reconciliation. When she reached the marital abode, Cooley refused to converse with her, merely saying, "You leave." He denied her return was motivated by a desire to reconcile; he stated she came back to obtain some personal belongings and to pick up his daughter by a previous marriage who was "just getting out of school." After a brief period of time, the wife went back to California accompanied by the daughter.

On June 27, 1972, the husband filed suit in North Carolina for an absolute divorce against the wife upon the ground that the parties had lived separate and apart for one year. The divorce papers were served on the wife only in California and she made no...