Dawson v. Dawson

• Decision Date: 28 March 1905
• Citation: 50 S.E. 613,57 W.Va. 520
• Court: West Virginia Supreme Court
• Parties: DAWSON. v. DAWSON.

50 S.E. 613

57 W.Va. 520

DAWSON.

v.DAWSON.

Supreme Court of Appeals of West Virginia.

March 28, 1905.

res judicata—habeas corpus—custody of child—divorce—bill—evidence.

1. The judgment of a circuit court in habeas corpus proceedings by a wife against her husband for the custody and control of their infant son, in favor of the wife, after a full hearing, is res judicata, in a suit brought afterwards for divorce and the custody of the child by the husband against the wife for desertion and abandonment as to all facts known and existing at the time of the hearing of the habeas corpus proceedings.

2. In a suit by the husband against the wife, after such judgment, for divorce for desertion and abandonment, to entitle the husband to have said judgment changed to give him custody of the child his bill must allege such facts occurring subsequent to the judgment or unknown at the time of its rendition, as, if proven, would warrant the court, in view of the welfare of the child, to change such custody.

3. In a suit for divorce, the court, in deciding between the father and mother of the children as to their custody and control, will regard the welfare and interest of the children as of the first importance.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 781-787.]

4. Where the father and mother have separated, and their infant children must of necessity be deprived of the care, protection, and training of one of them, then it is the duty of the courts to confide the custody of the infants to that parent, whether father or mother, best suited to maintain, protect, and educate them, and bring them up in moral courses.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 781-787; vol. 37, Cent. Dig. Parent and Child, §§ 15-24.]

(Syllabus by the Court.)

Appeal from Circuit Court, Morgan County; E. Boyd Faulkner, Judge.

Bill by Charles S. Dawson against Clara B. Dawson. Decree for plaintiff, and defendant appeals. Affirmed in part and reversed in part.

Flick, Westenhaver & Noll and Forrest W. Brown, for appellant.

Faulkner, Walker & Woods, for appellee.

McWHORTER, J. Charles S. Dawson and Clara B. Fearnow were married on the 8th of April, 1896, in Morgan county, and lived together as husband and wife in said county until the 14th day of May, 1898, when the wife left their home, and went to the home of her parents, taking with her their only child, at that time, Ray, who was born on the 5th day of December, 1896. On the 20th of October, 1898, another child was born to them, named Agnes. She remained away from home 'and at her parent's home ever after the time she left On the 31st day of July, 1898, Charles S. Dawson went to the home of his wife's parents, and took the child and started away with it before hispresence was discovered. He was followed some distance by the mother, who, not being very strong, was unable to overtake him, and he succeeded in getting away with it. On the 1st day of August she filed her petition to the judge of the circuit court of Morgan county praying for a writ of habeas corpus, which was granted. In response to the writ the defendant made his return, and brought the child into court, and on the 17th day of August, 1898, the court, having fully heard all the evidence offered on both sides, took time to consider, and in the meantime placed the' child in the custody of the petitioner, Clara B. Dawson, bond having been given for the safe-keeping and production of the child in court when the same should be required. At the January term of 1899 the court awarded the care and custody of the child to the petitioner, Clara B. Dawson, until the further order of the court, and gave judgment in her favor for costs against the defendant, providing that the defendant should have access to the said Ray Dawson at any hour between 9 a. m. and 8 p. m. at any day that he might desire to see him; to which ruling of the court the defendant took exceptions, and was granted leave to prepare bills of exceptions within 30 days from the adjournment of the term. No appeal or writ of error was ever taken to this judgment. On the 30th day of July, 1901, Charles S. Dawson sued out of the clerk's office of the circuit court of Morgan county his subpoena in chancery against Clara B. Dawson, and at the August rules, 1901, filed his bill therein, alleging the marriage of the plaintiff and the defendant and the birth of the two children, Ray and Agnes, and alleging that on the 14th of May, 1898, defendant, without just cause or excuse, had willfully abandoned and deserted him, taking with her their said son, Ray, and going to the home of her father, in Morgan county, where she had ever since resided; that he was always true and kind to his wife, treating her with consideration, and well providing for her comfort and needs; that she left his home during his absence therefrom, and refused to return and resume the relations of married life with him, and also refused to give him possession of his said children, and mentioned the habeas corpus proceeding had two years before, wherein the court awarded the son of the parties, Ray Dawson, to the defendant, the mother, subject to the further orders of the said court "Plaintiff says that he is clearly entitled to the care and custody of his said child, and that there is now no valid or just reason or cause why he be not restored to the said father's care and custody, " and prayed that divorce be decreed him from the bond of matrimony on the ground of willful abandonment and desertion, and that said children, Ray Dawson and Agnes Dawson, be given into his custody, and for general relief.

The defendant appeared, and filed an answer in the nature of a cross-bill praying affirmative relief. The answer denied all the allegations of the bill charging her with misconduct, and alleged that she was obliged to leave plaintiff because of cruel and inhuman conduct towards her; denied that plaintiff had been true and kind to her, and had always treated her with consideration, providing well for her comfort and needs, and that she willfully abandoned and deserted him and refused to live with her husband without just cause; alleged that the conduct of plaintiff toward her, both before and since their separation, had been cruel and inhuman in the extreme, rendering it impossible for her to live with him, and ruining not only her happiness, but also her health; that plaintiff was a man of ungovernable and insane temper and passionate and overbearing disposition; that during the first year of their married lite, while they lived with respondent's parents, they lived in comparative peace and happiness; that after they had moved to the farm of plaintiff's father, and were living by themselves, difficulties began, the first of which was because of the objection of respondent to the bringing into their home, from the almshouse, a half-witted girl of bad reputation, who was not long afterwards delivered of a bastard child. In the fail of 1897 respondent's health became seriously affected, involving her lungs, she having a tendency to pulmonary trouble, which, with the labors incident to the duties of a farmer's wife and the care and nursing at the breast of an infant, rendered respondent in no condition, physically or mentally, to bear the insults, injuries, and outrages set forth in the answer; that instead of sympathizing with respondent, plaintiff's ill temper increased, charging that her delicacy was pretended, and that respondent's mother had put into her head the notion that she was likely to die soon, and resented her mother's solicitude as a personal affront; that in the spring of 1898 respondent undertook to discharge the household duties, nursing and caring for her child, without any hired help; finding that she was unable to do so, and that her health was giving away under the strain, she told plaintiff at breakfast, on May 13, 1898, that she would be obliged to have aid; he refused, and flew into a violent passion: said he would not have a dozen in his family; that he would pay for no help; later in the day—about 11 o'clock—he returned to the house, and began upbraiding respondent, who only begged him to cease; he violently asserted that he would not be run over by any woman, declaring respondent was a liar and a double-faced woman, and ordered her to leave, and go to her parent's home; fearing for her life, respondent said and did nothing till on the next morning when he had left the house; she then, acting on his orders, left for her parent's home, whereshe has since resided; she left a note, explaining that she had gone because of his cruel treatment and because she had been told to go; that from that day to this plaintiff had offered no explanation of his conduct, or withdrawn his order to go, or requested the respondent to return, but, on the contrary, his subsequent conduct had been even more cruel and insulting and inhuman; that the episode on the 13th day of May, 1898, was only the culmination of a series of acts of cruel and inhuman conduct; not many months before this time, on one occasion, when respondent, owing to the state of her health, and worn out by nursing, begged him to excuse her from sexual intercourse, the plaintiff, in a violent rage, left the bed, went to the desk where he kept his razors, declaring that he would put an end to matters, and would kill himself, putting respondent in fear of serious bodily hurt, and again, under similar circumstances, he acted in the same way; at another time he falsely accused respondent of having been satisfied by sexual intercourse with other men; that the excessive sexual intercourse demanded by the plaintiff and yielded to by respondent at a time when she was nursing one child at the breast and was pregnant was largely responsible for her weak and broken health, and was cruel and inhuman treatment within the meaning of the law, and any acts of respondent tending to restrain it were resented with violence;...