Cottle v. Cottle
| Decision Date | 03 December 1946 |
| Docket Number | 9844. |
| Citation | 40 S.E.2d 863,129 W.Va. 344 |
| Parties | COTTLE v. COTTLE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In this jurisdiction false accusation of a wife by her husband of prostitution is cruel and inhuman treatment, which will ground divorce.
2. In the trial of a suit for divorce condonation is an affirmative defense and the burden of proof rests upon the offending party, and an allegedly guilty party who relies thereon as a defense must assert such defense by both pleadings and proof; but the court ex mero motu shall take cognizance of condonation where it clearly appears from the record.
3. The denial of sexual intercourse of itself is not sufficient to justify the granting of a divorce.
4. Where, in a suit for divorce, the husband charges the wife with unnatural sexual relations with other women, the charge must be proved by clear, positive and satisfactory evidence. Such proof lies 'in the twilight zone required by the 'beyond a reasonable doubt' rule in criminal cases and the 'preponderance of evidence' rule in civil cases.' Wolfe v. Wolfe, 120 W.Va 389, 399, 198 S.E. 209.
5. When the opinion of a circuit court is made a part of the record by court order, it operates 'to point out the specific ground on which the trial court acted.' Woodruff v. Gilliam, 116 W.Va. 101, 109, 179 S.E 873.
6. Maxwell v. Maxwell, 69 W.Va. 414, Pt. 4 Syl., 71 S.E. 571.
Ambler McCluer & Davis, of Parkersburg, for appellant.
Eugene T. Hague and Wm. Bruce Hoff, both of Parkersburg, for appellee.
Mardell Cottle filed her bill of complaint in the Circuit Court of Wood County against her husband, Justin Cottle, charging cruel and inhuman treatment, and praying for a divorce, the custody of the infant child born of the marriage between plaintiff and defendant and for alimony and a fund sufficient for the support and education of the child. In his cross-bill defendant likewise asked for a decree of divorce in his favor, and that he be awarded the custody of the child, Aaron Cottle, age six years, and the possession of certain pieces of tangible personal property, which plaintiff had taken from the place where the parties last resided. From a decree in defendant's favor, awarding him a divorce and custody of the child, plaintiff appeals.
The case was referred to a commissioner in chancery, who reported that the parties had not proved a case justifying the relief prayed for in their respective pleadings. Upon submission to the circuit court the decree complained of was entered. According to the written opinion of the circuit court, made a part of the record, the court found that plaintiff left the home, deserting defendant, and on that fact alone plaintiff was guilty of cruel and inhuman treatment.
Plaintiff and defendant were married on February 15, 1932, at Covington, Virginia, and lived together until July 22, 1944. During the last five years of their marriage, they resided at Parkersburg.
At the time of the marriage plaintiff, a graduate of St. Joseph's Hospital in Parkersburg, and a registered nurse, had for some time prior to the marriage been practicing her vocation in Parkersburg, and after the marriage continued to engage for about a year in that activity, during which time the fact of the marriage was kept secret, defendant being at that time unemployed.
Defendant having secured a position in the office of the Collector of Internal Revenue in Parkersburg, the parties moved from Roane County to that city, where they lived until the time the differences between them culminated in a separation. From savings which plaintiff had accumulated from her services as a nurse, supplemented by fifteen hundred dollars furnished by defendant's father, they constructed a home on a lot located directly across Juliana Street from the hospital. Five years after their marriage a male child was born to them, its delivery having been accomplished by means of a Caesarean operation. Following the birth of this child, plaintiff was compelled to undergo two operations, and after her recovery she again engaged in her former vocation as a nurse. Until the child was born, the parties evidently lived together amicably.
According to plaintiff's evidence when her health became impaired defendant began to abuse and neglect her and to take an interest in other women, particularly one Martha Wilson, as the result of which she forbade Martha Wilson to make further visits to their home. It is plaintiff's contention, and she so asserts in her testimony, that she was compelled, by reason of personal abuse, which she and the child received from defendant, to leave home.
Without corroboration plaintiff testified that after the difficulties between the parties began, defendant on one occasion hit plaintiff and threw her down the basement stairs of their house; that he held her hands and slapped her, knocked her down, and sat on top of her so that she could not defend herself; that the worry and physical strain of this treatment was so great that sometimes it would take her a month to get over 'one of these affairs'; that on different occasions it was necessary for her to consult physicians on account of the alleged treatment, and once plaintiff was compelled to stay in bed for four days.
In December, 1943, plaintiff, defendant, plaintiff's mother and her two sisters, Rosalene Depue Walker and Imogene Depue Board, all of whom, except the latter, testified, were present at the home of plaintiff's mother in Parkersburg. According to plaintiff, defendant kept going into the room where Imogene was about to retire for the night, and plaintiff told defendant to stay out. Thereupon, defendant told plaintiff's mother that his wife would not have sexual intercourse with him, and called her degrading names, such as bitch, whore and bastard, and tried to hit plaintiff with a vase, but he was disarmed by Rosalene Walker, and at plaintiff's request defendant called a taxi-cab, which took the Cottles home. When they entered their home and started to remove their coats, plaintiff testified that she asked defendant why he had said 'all those things' in the presence of her mother and sisters, and when she told defendant that she had not heard of the names which she said defendant called her, he struck her on the side of the head causing her to fall on a davenport, where he held both of plaintiff's hands and slapped her on one side of the head and then the other, whereupon the boy Aaron intervened, saying, ; and that then, according to plaintiff, defendant hit the child on the side of the head and knocked him across the room. Finally, plaintiff after several efforts, succeeded in calling the police. She said that as a result of the alleged affray she had bruises and scratches on one hand, her arm and throat. She testified that she exhibited her alleged injuries to one of the Sisters at the De Sales Heights Convent, and to her mother, who corroborates her in this. Plaintiff testified that events such as occurred in 1943 in the Cottle home occurred 'lots of times.'
Plaintiff and defendant, according to plaintiff's uncorroborated testimony, had not had sexual intercourse with each other since the late spring or early summer of 1942, for the reason that defendant did not have any respect for her feelings and 'couldn't keep his hands off any other girls'; that on one occasion in Roane County at the farm of plaintiff's father, when one of plaintiff's sisters was present, defendant 'kept trying to pick around at her [plaintiff's sister] and getting his hands on her and rubbing his knees against hers and embarrassing her to death,' but this sister, whose identity is not disclosed by the record, did not testify as to this happening. According to plaintiff, from the time the parties began to live together until the spring of 1943, they occupied the same room and bed, but from that date until the separation they slept in separate rooms.
In the main, except for the happenings in plaintiff's mother's home in December, 1943, defendant denied that he was abusive of plaintiff. He testified that although a number of attempts had been made, he had not had any sexual relations with his wife since April 16, 1938; and that the suspension of such relationship came about at plaintiff's instance. Defendant testified that plaintiff on one occasion told him that sexual intercourse was designed principally for the purpose of giving birth to children, and that she did not wish to have any more children by defendant.
On July 22, 1944, while defendant was at work in his office, plaintiff caused a moving van to come to their home, and haul away a portion of the furniture and personal effects to an apartment at 939 1/2 Market Street, in Parkersburg, where plaintiff established a place of abode for herself and the child.
The gravamen of defendant's position is based upon the alleged unnatural sexual propensities of plaintiff. The commissioner in chancery found that it was proved by a preponderance of the evidence that plaintiff 'has had a tendency and desire to be intimate with other women; that her attraction for other women was by reason of sexual impulses and that her husband was repulsive to her because he was a man'; but that such proof related to a time more than one year prior to the intitution of this suit. In this regard defendant testified that the marriage was not announced until...
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