Currence v. Currence
| Decision Date | 28 October 1941 |
| Docket Number | 9188. |
| Citation | 18 S.E.2d 656,123 W.Va. 599 |
| Parties | CURRENCE v. CURRENCE. |
| Court | West Virginia Supreme Court |
Rehearing Denied March 9, 1942.
Syllabus by the Court.
C O. Strieby, of Elkins, for appellant.
E L. Maxwell, of Elkins, for appellee.
Nellie V. Currence was awarded this appeal from a final decree of the Circuit Court of Randolph County denying her a divorce from Henry P. Currence.
The grounds for divorce alleged in the plaintiff's bill are (1) Habitual drunkenness on the part of the husband; (2) cruel and inhuman treatment; and (3) reasonable apprehension of bodily hurt. Defendant answered, denying in detail these charges, and pleaded condonation.
The evidence was taken under a decree of reference to a commissioner in chancery, and on final hearing, the court by its order found that the case was "for the defendant", and dismissed the bill.
The record discloses that the plaintiff and defendant were married August 29, 1936, he being at that time sixty-three years of age and her age being thirty-nine. The plaintiff was a college graduate and, prior to her marriage, had been a school teacher in Randolph County. She had not been previously married. The defendant was a farmer whose first wife was deceased. A son was born of this first marriage who is married and lives elsewhere. Defendant was supposed to own a farm of 104 acres on which there was a good eight-room house with the customary farm buildings. This farm is estimated variously to have been of the value of from six to thirteen thousand dollars.
For a time, the couple appear to have lived together harmoniously, each performing the arduous work customary to a husband and wife on a West Virginia farm. Some trifling differences as to details of the farm affairs seem to have occurred, particularly as to the division of the proceeds from the sale of farm products, but nothing serious is reported until the summer of 1939.
The wife performed the laborious duties of a housewife on a farm, including milking, churning, raising garden vegetables, canning fruits, etc., with only occasional short-time assistance of hired help. In June, 1939, a girl named Mary Young applied for work as a hired girl, being brought to the house by one Graham. She was engaged for an indefinite term at seventy-five cents a week, including, of course, board and room. The plaintiff says the employment was by the mutual act of herself and her husband, but the husband testifies that he objected from the beginning, being suspicious of the relations between Mary and the man Graham, who appeared to be her lover and who continued to pay her marked attention. He further says that upon inquiry, he was told that Graham was a married man, and that the girl had previously been delivered of two illegitimate children. These rumors appear to have been unfounded. The defendant further says that his suspicions were emphasized by the fact that Graham occasionally took the girl away over night, and that he stayed at the Currence home one night under circumstances which led the defendant to strongly suspect that the two had occupied the same bedroom. At any rate, the defendant continued to demand that the girl be dismissed by the plaintiff, while she insists that she did not oppose the dismissal, but merely took the position that the husband do the discharging.
The crisis came August 16th when the husband and wife, and the maid went to Elkins to take the wife's sister to the train. The husband saw his wife and the girl go into a doctor's office, and, being suspicious, followed them. Upon inquiry from the doctor, he was told that the girl had come for examination as to her possible pregnancy.
At home that night, the plaintiff says that just before retiring she was bathing her feet in the kitchen when her husband came into the room in great anger and demanded that the girl be immediately discharged, called the girl a "whore" and applied the same epithet to the plaintiff. She then says that in her resentment she called the defendant a "son-of-a-bitch", whereupon he reached for her throat and she seized an empty teakettle with which to protect herself, upon which the defendant struck her two or three times with his fist finally knocking her down, and kicking her two or three times as she lay on the floor against the wall; that at this time, the maid appeared from her room over the kitchen, and that, upon her intervention, the defendant retired from the room. The plaintiff says that the blows were of such a character as to leave wounds on her face and about her body; that she was badly injured and stunned, and that she and the maid went to the car for the purpose of getting a doctor's assistance when the defendant appeared and refused them the use of the automobile; that then she and the girl went to her mother's home for the night. Mary Young corroborates the plaintiff on some vital points. She testifies that she heard the altercation in the room beneath her, and distinctly heard the defendant apply the word "whore" to both herself and his wife; that when the struggle began she rushed downstairs, and found the defendant standing over his fallen wife, apparently very angry, and in a menacing attitude; and that the defendant left at the request of the witness.
The defendant's story is, as may be expected, substantially different. He states that immediately before the altercation he was in an adjoining room from the kitchen performing his ablution and was barefooted; that he stepped into the kitchen and spoke to his wife about Mary, insisting that she be dismissed, and stated that he did not intend to have his home made a whorehouse; that his wife immediately became frantic, seized a teakettle, announcing that she would scald his eyes out; that he then seized her arm causing her to drop the teakettle, whereupon she reached for a butcher knife lying nearby and that he, in self-defense, struck her once and knocked her down. He denies that he struck or kicked her after she fell, calling attention to his bare feet, but admits that he left when the girl intervened, and that he afterwards denied his wife the use of the car.
On these facts, the plaintiff made a clear showing of cruel and inhuman treatment, and justified her claim to be reasonably apprehensive of bodily hurt. Her version of the episode is clearly corroborated by Mary Young on its vital points. Our statute provides that a "charge of prostitution made by the husband against the wife falsely shall be deemed cruel treatment." Code, 48-2-4(d), as enacted by Acts 1935, c. 35, § 4. And the clear preponderance of the evidence tends to show a brutal and unjustified assault by the husband on the wife. On the other hand, his explanation of his conduct makes a very poor showing of self-defense or other justification, while the bruises on the woman's face and body, testified to by a physician who attended her, and by a neighbor, as well as by the plaintiff and the maid, are wholly inconsistent with his contention that he struck her but a single blow.
But on the following day, the wife returned with her brother to the Currence home for the purpose, as she explains, of getting her clothes and other belongings, at which time some kind of reconciliation seems to have been reached between the husband and wife, which resulted in her remaining with her husband from the 17th day of September to the 2nd day of November, during which time full and complete marital relations were sustained between the pair. This clearly operated as a condonation of the defendant's offense, and prevented the maintenance of a suit for divorce by the plaintiff against the defendant while such condonation continued in effect. Code, 48-2-14; DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440; Anderson v. Anderson, 78 W.Va. 118, 88 S.E. 653, 2 A.L.R. 1617; 17 Am.Jur., Divorce, sec. 208; 27 C.J.S., Divorce, § 60.
Condonation of a marital offense, however, is always conditional, not absolute. Equity treats such forgiveness as being subject to the implied provision that the offending spouse will thereafter refrain from a violation of his marital duties. Upon such subsequent violation of marriage obligations, the condonation is neutralized or terminated, and the injured spouse then may have recourse to the original offense as the basis for divorce. The subsequent conduct of the offender which will deprive him of the right to rely upon the condonation need not amount to a separate ground for divorce. It need only be of such a character as to indicate the bad faith...
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