DeBerry v. DeBerry

• Decision Date: 04 December 1934
• Docket Number: (No. 8045)
• Citation: 115 W.Va. 604
• Court: West Virginia Supreme Court
• Parties: Gertrude DeBerry v. C. B. DeBerry

115 W.Va. 604

Gertrude DeBerry

v.C. B. DeBerry

(No. 8045)

Supreme Court of Appeals of West Virginia.

Submitted November 14, 1934.

Decided December4, 1934.

Divorce

A singie act of coition is sufficient to invoke the statute (Code 1931, 48-2-14), providing that no divorce for adultery shall be granted when it appears that the parties voluntarily cohabited after knowledge of the adultery and that a divorce shall not be granted for any cause when it appears that the offense charged has been condoned.

Appeal from Circuit Court, Kanawha County. Suit by Gertrude DeBerry against C. B. DeBerry. From an adverse decree, defendant appeals.

Affirmed.

O'Connor & Thompson and Poffenbarger & Poffenbarger, for appellant.

J. T. Reynolds, for appellee.

Litz, Judge:

This is a divorce suit in which each party seeks a dissolution of the marital relation upon a charge of adultery against the other. Plaintiff, Gertrude DeBerry, and defendant, C, B. DeBerry, were intermarried November 7, 1923, and lived together as husband and wife until September 29, 1933.

After the divorce commissioner, to whom the cause was referred, had filed his report, acquitting defendant, and convicting plaintiff, of adultery, plaintiff presented her petition alleging that defendant had condoned the offenses with which she is charged by cohabiting with her subsequent to the taking of the proof by the commissioner. Whereupon, the cause was recommitted to the commissioner to determine the issues raised by the peti- tion. After hearing evidence, the commissioner filed a supplemental report, sustaining the averments of the petition and recommending dismissal of the case. The trial chancellor confirmed the reports and dismissed the proceeding.

Defendant has appealed, assigning as error, the finding that the parties had cohabited together after the evidence of adultery on the part of the plaintiff had been taken before the commissioner, and the holding that sexual intercourse between the parties without reconciliation, constituted condonement.

Plaintiff testified that defendant, after calling her by telephone, at two-thirty A. M., February 11, 1934, came to her apartment on Burlew Street in the city of Charleston, forty minutes later, and remained there until tenthirty A. M., of that day; that they slept together and engaged in sexual intercourse. Two other witnesses, testifying in her behalf, stated that in passing along the street, about ten-thirty A. M. of the day, they observed a man resembling defendant in size, on the porch of plaintiff's apartment in conversation with her. Defendant denied that he had visited his wife at the time in question or engaged in sexual intercourse with her since their separation, September 29, 1933. He also introduced a nightwatchman of the Daniel Boone Hotel, in Charleston, who testified that he met defendant in a restaurant near the hotel about three-thirty on the morning of February 11th, and accompanied him to his room in the hotel where he left him about four A. M., in the act of retiring. Defendant also testified that he had been drinking and playing cards with a party of men near his hotel until three-fifteen A. M. He does not, however, disclose their names or offer them as witnesses. According to his testimony, he was attending the party at the time his wife claims he called her.

The circumstances are not such as to justify this court in setting aside the finding of the commissioner and the trial chancellor which involves an ordinary issue of fact upon conflicting testimony.

"No divorce for adultery shall be granted * * * when it appears that the parties...