Edwards v. Edwards
| Decision Date | 04 December 1928 |
| Docket Number | 6224. |
| Citation | 145 S.E. 813,106 W.Va. 446 |
| Parties | EDWARDS v. EDWARDS. |
| Court | West Virginia Supreme Court |
Submitted October 23, 1928.
Syllabus by the Court.
Inequitable and improper marital conduct of a wife proved in a suit brought by her against her husband for divorce from bed and board on the grounds of cruelty, desertion and adultery, while not sufficient to warrant a divorce to her husband, may nevertheless be sufficient to preclude her from relief.
Additional Syllabus by Editorial Staff.
Evidence in wife's suit for divorce relative to her inequitable and adulterous conduct held sufficient to preclude her from relief, though insufficient to warrant divorce to husband.
Appeal from Circuit Court, Cabell County.
Suit for divorce by Mae McCormick Edwards against C. Fred Edwards wherein defendant filed a cross-bill. Decree for plaintiff, and defendant appeals and plaintiff cross-assigns error. Reversed in part, and in part affirmed.
Scott, Graham & Wiswell, of Huntington, for appellant.
O. J. Deegan and Connor Hall, both of Huntington, for appellee.
The plaintiff and the defendant were married in 1903; they were subsequently divorced, and were remarried in 1908. This suit for divorce was instituted in April, 1926. The plaintiff charges the defendant with cruelty, desertion, and adultery, and prays for a divorce from bed and board and for alimony. The defendant denies the charges of cruelty and desertion and certain of the alleged acts of adultery, and in his cross-bill charges the plaintiff with inequitable conduct and adultery, and prays that a divorce from the bonds of matrimony be awarded him. The trial court denied to the defendant the relief sought by him in his cross-bill, and held that the plaintiff was entitled to the relief for which she prays. She was awarded a divorce a mensa et thoro from the defendant. She was allowed a gross sum of $15,000 payable in three equal installments in 30, 60, and 90 days, respectively, after the date of the entry of the order "for the purpose of purchasing a modest home for the plaintiff," $750 per month alimony, and was adjudged to be the owner of a certain Pierce Arrow automobile that was in controversy between the parties, also of some valuable books to which she made claim. An allowance of $5,000 was made for her counsel, and all costs of suit were provided for. In these awards and allowances the court reduced by one-half the amount which had been fixed by the commissioner as proper compensation to counsel for the plaintiff, also reduced by nearly one-half the allowance to the commissioner in chancery to whom the cause was referred, and disallowed charges of certain nonresident attorneys for services rendered in connection with the taking of depositions beyond the state. The trial court also reduced from $35,000 to $15,000 the allowance in gross sum to the wife for the purchase of a home, and the alimony from $1,000 to $750 per month. To this decree the defendant prosecutes this appeal. The plaintiff cross-assigns error on the part of the trial court in reducing the awards and allowances aforesaid.
It appears that although these parties were in very modest financial circumstances in the early years of their married life, they later came into affluence by reason of the great success and prosperity which attended the defendant's business enterprises and activities. This situation of fortune was augmented by the unusual conditions of business activity which attended the World War and the immediate aftermath. Some years ago the parties gave up their home in the city of Huntington and took an apartment in a hotel in that city, where they lived until their separation in April, 1926. The plaintiff's explanation for this was that because of ill health she was not able to keep house.
The evidence does not convict the defendant of desertion or of cruel and inhuman treatment, except as the latter offense may be involved in adultery. The charge of adultery against the defendant, however, is fully sustained by the evidence. He had an affair with one Esther Watson Black, the co-respondent named in the plaintiff's bill. The intimate relations between the defendant and Mrs. Black seem to have existed for a year or more prior to the separation of the plaintiff and the defendant in April, 1926, and, in fact, up to the time and within the period of the pendency of this suit. There are in evidence a number of letters written by the defendant to Mrs. Black. These communications are replete with protestations of his love and affection for her. There seems no room to doubt that the defendant and Mrs. Black were registered as Mr. and Mrs. A. J. Watson at Hotel Sinton, in Cincinnati, December 5, 1925, and occupied a bedroom together. A similar episode, we are warranted by the evidence in believing, took place at the Ft. Hays Hotel, Columbus, May 12, 1925.
An instance of adulterous conduct on the part of the defendant subsequent to the institution of this suit involved an event at the Hotel Astor in the city of New York in the month of June, 1926. On the occasion in question the plaintiff, accompanied by a woman friend and two detectives, went to the Astor and found the defendant and Mrs. Black and another man engaged in a little drinking party in a bedroom. It is in evidence and not disputed that when Mrs. Edwards and her female companion and the two detectives entered the room under the circumstances just recited, the defendant said to his wife: "Mae, I am damned glad you have caught me." The two detectives had followed Mr. Edwards from another hotel in the city to the Astor, and to room No. 506 and saw him enter this room, and then while one of the men went to get Mrs. Edwards and her woman companion, the other of the detectives stood watch, and while so doing he observed the other male visitor enter the room. When Mrs. Edwards and her companions knocked on the door and were admitted to the room, the bed had the appearance of having been occupied by two people. This was in the daytime. The hotel records disclosed that on that date this particular room was occupied by persons registered as C. M. Watts and wife. This registration was in the handwriting of the defendant.
This whole occurrence is set forth in full in allegations of plaintiff's second amended bill. The right to bring it into the record at all is challenged by the defendant. It is urged that allegations of adulterous conduct on the part of the defendant pending the suit are improper matters to be brought into the suit by amended bill or otherwise. This must be determined in the light of the fact that the defendant takes the position that, if there were any acts of adultery on his part prior to the institution of this suit, they had been condoned by the plaintiff. The wife denies condonation. But if there was condonation, the law would deem it to have been predicated on condition of subsequent good conduct on the part of the defendant. 9 R.C.L. p. 384. In that situation, it is proper that subsequent acts of adultery committed after the institution of the suit be pleaded and proved. It is an answer to condonation for adultery that there have been subsequent acts of violation of the marriage vows. In the case of Lutz v. Lutz, 52 N.J.Eq. 241, 28 A. 315, the court held that where condonation is interposed as a defense to an action for divorce on the ground of adultery, the plaintiff may file a supplemental bill or petition charging the defendant with acts of adultery subsequent to the alleged condonation, and subsequent to the commencement of the action. This is a general rule. Upon the same general considerations which control the practice in other proceedings, amendments are properly allowed in divorce suits, for the purpose of making the allegations of the pleadings more definite and certain, of asserting an essential allegation which has been omitted, or of including allegations of misconduct committed subsequent to the commencement of the suit. 9 R.C.L. 425-427; 19 C.J. 120; 1 Nelson on Divorce, 360. And proof of acts committed after suit brought, when between the same parties, evidence of whose misconduct has already been introduced, is admissible for the purpose of showing adulterous disposition. 9 R.C.L. 326; 19 C.J. 129; Taft v. Taft, 80 Vt. 256, 67 A. 703, 130 Am.St.Rep. 984, 12 Ann.Cas. 959. This court has recognized the right of a defendant in a divorce proceeding to bring into the cause by cross-bill acts of adultery of the plaintiff subsequent to the institution of the suit. Roberts v. Roberts, 99 W.Va. 204, 128 S.E. 144. In that case we quote with approval from Von Bernuth v. Von Bernuth, 76 N.J.Eq. 487, 74 A. 700, 139 Am.St.Rep. 784, in part as follows: "*** This court having once rightly obtained jurisdiction over the parties and the subject-matter of the litigation, will proceed to hear the whole case, and measure out justice to the parties once for all on the facts alleged and proved." That principle should be applied in the instant case.
Though the defendant thus stands convicted of adulterous conduct does it follow that the plaintiff is entitled as a matter of course to the relief which she seeks? That must be determined not alone by the defendant's guilt, but by the plaintiff's conduct as well. Let us examine the evidence bearing on the charges against her of inequitable and adulterous conduct. It is in evidence that during the latter years of their living together as husband and wife, this woman applied to her husband opprobrious epithets so vile and indecent that they should not be carried into a judicial opinion. She admits this language in grave part. While it is true that these expressions were sometimes used by her in the heat of quarreling between herself and her...
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