Corson v. Corson

• Decision Date: 15 June 1933
• Citation: Corson v. Corson, 160 Va. 552, 169 S.E. 567 (1933)
• Court: Virginia Supreme Court
• Parties: CORSON. v. CORSON.

169 S.E. 567

CORSON.

v.CORSON.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Appeal from Circuit Court, Henrico County.

Suit by Maurice S. Corson, Jr., against Eunice M. Corson.From a decree granting a divorce a mensa and a decree making the divorce a mensa absolute and awarding permanent custody and control of a child to the' complainant, the defendant appeals.

Both decrees reversed, and the case dismissed, in accordance with opinion.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Robert Thomas and Joe T. Mizell, both of Richmond, for appellant.

Lovenstein & Lovenstein, of Richmond, for appellee.

HUDGINS, Justice.

This is a suit instituted by the husband, Maurice S. Corson, Jr., alleging that his wife, Eunice M. Corson, had, without just cause, deserted him.Two decrees were entered by the chancellor, one on October 7, 1931, in which the husband was granted a divorce a mensa and given the custody of the only child, a girl three years of age, and by which the marital rights of each in the property of the other were extinguished.By the second decree, entered January 5, 1932, the divorce a mensa was made absolute, and the care, custody, and control of the infant daughter were given permanently to the husband and father; the case was ordered stricken from the docket and the papers filed with ended causes.From both decrees an appeal was allowed Eunice M. Corson.

There are five errors assigned; those numbered 3, 4, and 5 do not involve the merits of the case, nor does the record, as certified, contain any order or decree dealing with the matters set forth therein.

Assignment of error No. 3 is stated thus: "The Court erred in refusing to require the said Maurice S. Corson, Jr., to pay to petitioner reasonable and just counsel fees and suit money and alimony, all of which was necessary to enable petitioner to properly present her case and defend herself in this action."The only reference in the record to this subject is found in the last paragraph of the appellee's answer, where she prays that the bill be dismissed "and that she be given her proper court costs, expenses and attorney's fees in this behalf expended."

In obedience to an order of this court entered on March 8, 1933, the clerk, with the other papers, transmitted an original draft of a decree dated February 17, 1932, signed by the trial judge, reading thus:

"This cause came on again to be heard on motion of the defendant, after due notice to the plaintiff, that the decree heretofore entered granting a divorce from bed and board and awarding him the custody (of) their infant child, be set aside, which said motion the Court doth hereby overrule.Whereupon the defendant pursuant to notice duly given further moved the Court to enter an order suspending the operation of the aforesaid decree and to prohibit the further taking of depositions by the plaintiff to merge the same into an absolute decree of divorce, and that she be allowed reasonable attorneys fees, suit money, and temporary support for herself and child enabling her to appeal to the Supreme Court of Appeals of Virginia from the aforesaid decree, all of which relief the Court doth hereby refuse.

"[Signed]Julien Gunn"

The very able and experienced clerk of the circuit court of Henrico county, in explanation of why the above decree was not included in the record as originally certified by him, has this to say:

"It is proper t0 state that on the 17th day of February, 1932, the original papers were withdrawn from the office by counsel for the defendant, and when the return of the papers was requested, they could not be found, having been mislaid.Sometime afterwards they were returned to the office, but no statement, was made that any subsequent decree had been entered in the case.In examining the papers long after February 17, 1932, I found folded with them a decree of that date.It has not been transcribed on the order book."

Chapter 458, section 3, of the Acts of 1926(1930 Code, § 5982a), in part, reads thus:

"All judgments or decrees entered during any term of the court shall become final at the end of the term or at the expiration of fifteen days after their rendition, whichever period shall first* happen."

By this assignment of error we are

asked to reverse the chancellor because he refused affirmative relief after he had lost jurisdiction of the cause.The refusal of relief, under such circumstances, does not constitute reversible error.

In assignment of error No. 4 it is claimed that the decrees deciding the merits of the case were entered by the trial court, without giving opposing counsel notice or an opportunity to present their objections to the court.Again there is nothing in the record to support the statement; counsel neither filed a petition in the cause nor had a motion to vacate the decree made a matter of record.Charges of unethical conduct on the part of opposing counsel were made in the brief in this case.Unfortunately, the record is silent as to whether or not these charges were brought to the attention of the trial court.In the absence of definite evidence showing who was at fault, we will content ourselves with saying that sharp prac-tlce, whereby one counsel seeks and obtains an unfair advantage, should not be tolerated in the lower courts and will not be tolerated in this court.

The fifth assignment of error states that it is based on the action of the trial court in refusing to sustain a motion to dismiss the case after a hearing on the bill and depositions taken to support it.The record contains no decree sustaining or overruling such a motion.

The questions raised by the first and second assignments of error are: (1)'Whether the evidence for complainant is sufficient to prove desertion of the husband by the wife.(2) Whether the husband or the wife should be given the care and custody of the child.These two questions will be discussed together.

It seems that Eunice Mills, a native of Spotsylvania county, seventeen years of age, obtained employment in Richmond and. took up her residence in that city.Shortly thereafter she met Maurice Corson, then about nineteen years of age, and after a very brief courtship they became engaged.The young couple, accompanied by the parents of the husband, motored to Washington, D. C, and there on either the 17th or 19th day of September, 1927, were married.The parties returned to Richmond and boarded for awhile and then began housekeeping.Both the husband and the wife continued in gainful employment for about two months, when the husband lost his job, since which time he has not been regularly employed, though he has worked at different jobs, varying in length from a week to perhaps two months at a time.When cross-examined on the subject he was unable...