Cumming v. Cumming

• Decision Date: 18 March 1920
• Citation: 102 S.E. 572
• Parties: CUMMING . v. CUMMING.
• Court: Virginia Supreme Court

102 S.E. 572

CUMMING .

v.CUMMING.

Supreme Court of Appeals of Virginia.

March 18, 1920.

Appeal from Circuit Court, Elizabeth City

County.

Suit for divorce by Mittie Ann Cumming against S. Gordon Cumming, wherein defendant husband filed cross-bill. From a decree granting him absolute divorce, plaintiff wife appeals. Reversed and remanded.

The original bill in this cause was exhibited by the wife, the appellant against the husband, the appellee, for divorce on the statutory ground of willful desertion. The husband filed his answer and cross-bill, and later, after more than three years had elapsed, filed his amended and supplemental answer and cross-bill, alleging cruelty on the part of the wife and praying that the divorce be awarded to him on that ground.

Following the filing of the second crossbill, there was ancillary pleading on the part of the wife by petition praying for suit money and alimony pendente lite.

The suit also involves the custody, maintenance, and education of an infant son of the parties, who was born out of wedlock, and was about 19 1/2 months old at the time of the marriage; but those matters, being reserved for further consideration by the court below, are not involved in the appeal.

There was an antenuptial contract between the parties, which Is as follows:

"This agreement, made this 18th day of March, in the year 1914, between S. Gordon Cumming, of the one part, and Mittie N. Jester, of the other part, both of the county of Elizabeth City, Virginia, Witncsseth:

"That for and in consideration of the mutual agreements and covenants and conditions herein contained, and the sum of money heretofore paid and agreed to be paid as hereinafter set forth, and of the consummation of the marriage now contemplated by the said parties, it is mutually covenanted and agreed between the said parties as follows:

"First. That the said S. Gordon Cumming hereby does release and renounce any and all claims or interests of any kind whatsoever growing out of the said proposed marriage in and to any property now owned or which may hereafter be owned by the said Mittie N. Jester, and that whatever property she now ownsor may hereafter own shall be held by her as her own individual separate estate, free from any claims or rights, marital or otherwise, on his part.

"Second. And that he, the said S. Gordon Cumming, doth further covenant and agree to pay to the said Mittie N. Jester the sum of ten dollars ($10.00) per week from the consummation of the said marriage for a period of six months; one-half of the said money to be paid her for her own use and benefit and support, and the remaining half to be paid for the support and maintenance of Kenneth Gordon, the infant son of the said Mittie N. Jester and the said S. Gordon Cumming. And the said S. Gordon Cumming doth further recognize the legal liability imposed upon him for the support and maintenance of the said child, and the execution of this paper on his part is not intended to operate and does not operate to relieve him of the duty imposed upon him by law to maintain, care for, and support his said child after the expiration of the said six months; but he hereby recognizes said obligation on lis part, and covenants and agrees to contribute to' the support of the said child five dollars ($5.00) per week for the period of six months above described, and doth further covenant and agree to continue said payments until the said child is of sufficient age and size to earn his own living, or until said child shall have reached the age of sixteen. The above payments to be made so long as the possession of the said child is not given to the said S. Gordon Cumming; but should the mother of the said child, Mittie N. Jester, give up possession of the said child, and the same be delivered to the said S. Gordon Cumming, then he covenants and agrees to provide, care for, and maintain the said child.

"Third. The said Mittie N. Jester doth hereby release and renounce any and all claims or interests of any kind whatsoever growing out of the said proposed marriage, or in consequence thereof, in any property now owned or hereafter acquired by the said S. Gordon Cumming, and doth accept in lieu of her rights therein the sums of money heretofore paid her by the said S. Gordon Cumming and the payment of the sum of ten dollars per week, five dollars per week to her for her own use and benefit, for the period of six months, and five dollars per week for the maintenance and support of her said child, and in full satisfaction of any and all claim on her part upon the said S. Gordon Cumming, both for her support and maintenance, and any other marital rights.

"This instrument embraces all agreements, promises, or covenants of any sort on the part of the said parties growing out of or relative to the said proposed marriage, and its terms shall not be changed, except in writing and signed by both parties thereto.

"Witness the following signatures and seals the day and year first above written.

"[Signed] S. Gordon Cumming. [Seal.]

"[Signed] Mittie Ann Jester. [Seal.l"

There were depositions and. documentary evidence filed in behalf of both husband and wife.

By the decree under review said contract was "sustained, upheld, and confirmed as the free act and deed of the parties, made for a valuable consideration and in conformity with law, " and the court, being of opinion, as recited In the decree, that the husband "is entitled to an absolute divorce * * * on the grounds of desertion and cruelty, * * * three years having elapsed, * * * " decreed an-absolute divorce, and that each party should "be absolutely divested of any right, title, interest, and. estate of any character whatsoever in any property now owned or hereafter acquired and held by the other, " making no allowance to the wife of any alimony, either pendente lite or for the future.

By an interlocutory order in the cause the husband was ordered to pay $50 to an attorney for the wife "on account of his fee for legal services in conducting this suit, " and by the decree under review the husband was ordered to pay the costs of the suit, including a fee of $50 to the same attorney "in full of his fee for services as such counsel." No other allowance of suit money and no alimony pendente lite was made by the court below.

Pending the appeal this, the appellate court, ordered that the husband pay the expense of printing the record, which amounted to $-.

The material facts in the case are as follows:

The child aforesaid was recognized by the father before the marriage, and it is an unquestioned fact, shown in evidence, that the purpose of the husband in entering into the marriage relationship In question was to legitimate the child under the statute in such case made and provided (Code 18S7, § 2553; Code 1919, § 5209), and to confer upon the mother of the child the status of a married woman, "to give her a chance, " to use the words of a witness in the case, "to straighten out her life and settle down to normal, reasonable, hopeful existence"; but that status was to be that of a married woman deserted by her husband. For reasons which need not be stated here, except to say that they chiefly grew out of disparity in education, culture, tastes, and stations in life and the opposition of the family of the husband to such marriage, the latter was unwilling to cohabit with the wife in the relationship of marriage, anal this he made clearly known to the prospective wife at the time of the antenuptial contract aforesaid. He also made it clearly known to her at the same time that he would not take the marriage vows—would not be a party to the marriage ceremony— unless the wife-to-be would enter into the antenuptial contract aforesaid, and thereby agree to release him, except as to the trivial money payments provided for therein, from the financial burden of the obligation which the marriage status would impose on him of providing for the maintenance and support of the wife and child. The contract wasmade with the specific object of providing a contract limitation of the legal obligation aforesaid which should govern the rights of the wife in the premises following the desertion of the wife by the husband after the marriage.

The attitude of the wife, at the time of the antenuptial contract and at the time of the marriage, was that of taking all that she could get for herself and child. She was not asked to agree to the desertion by the husband, and as a matter of fact did not do so, either before or after the marriage. She did, however, understandingly and knowingly agree to the terms of the antenuptial contract in order to obtain the marriage, and thereby, in substance, agreed that, if deserted by the husband, she would go her separate way, and, as she had no property whatever, and as the members of her family were not able, even if willing, to support her (which facts are also shown in evidence), that she would work for her own living and for her own support and maintenance and that of her child so long as she kept him with her, except for the trivial assistance provided for in the contract.

Accordingly the antenuptial contract aforesaid was executed, and on the same night the marriage was celebrated, and immediately thereafter the husband went to his own home, and then and there willfully deserted the wife, with the fixed purpose never to cohabit with her in the marriage relationship. In that purpose, as the evidence in the cause, including his own testimony, clearly shows, he never wavered, and from tbat time until the decree under review was entered, as such evidence also clearly shows, he continued such desertion, being longer than the statutory period of three years giving ground for absolute divorce. It also clearly appears from such evidence, including the testimony of the husband, that the conduct of the wife which is relied on by the husband as constituting cruelty did not occur until after his desertion aforesaid, and hence did not...