Elam v. Elam

• Decision Date: 13 March 1944
• Citation: 182 Va. 469,29 S.E.2d 222
• Court: Virginia Supreme Court
• Parties: ELAM . v. ELAM.

29 S.E.2d 222

182 Va. 469

ELAM .

v.ELAM.

Supreme Court of Appeals of Virginia.

March 13, 1944.

Appeal from Circuit Court of City of Norfolk; A. R. Hanckel, Judge.

Suit for divorce by Anne D. Elam against Robert Diebrell Elam, who filed a petition for a divorce a vinculo matrimonii and exclusive custody of the parties' infant son after modification of a decree, granting complainant a divorce a mensa, the child's custody, and a weekly allowance for support of herself and child, by reducing the amount of alimony and maintenance. From a decree granting both parties a divorce a vinculo matrimonii, awarding the child's custody to complainant, and ordering defendant to pay a specified sum weekly for the support of complainant and the child, defendant appeals.

Modified, and affirmed as modified.

Before CAMPBELL, C. J, and HUD-GINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

W. L. Devany, Jr., of Norfolk, for appellant.

Eastwood D. Herbert, of Norfolk, for appellee.

HUDGINS, Justice.

The dominant question presented in this appeal is whether the father, Robert D. Elam, or the mother, Anne D. Elam, shall have the custody of their six-year-old boy.

In January, 1940, Anne D. Elam obtained a decree granting her a divorce a mensa from her husband, Robert D. Elam, the custody of the child and $15 a week for maintenance and support of herself and child. The husband was given the privilege of having the custody of the child from Saturday morning until Sunday evening of each week and of seeing the child, if convenient, on Wednesdays between 5 and 7 p.m. This decree was modified on October 5, 1940, by reducing the amount of alimony and maintenance from $15 to $10 a week.

This was the status of the record on February 2, 1943, when Robert D. Elam filed a petition in the cause, alleging that Anne D. Elam, without having secured an absolute divorce, had entered into a bigamous marriage with Roy O. Goddard in New Jersey, which was convincing proof that she was not a fit and proper person to have the care and control of a child of tender years. The prayer of the petition was that the husband be granted a decree a vinculo matrimonii and the exclusive custody of the infant. The wife filed an answer, alleging that she had exercised proper care and control of the child since his birth; that she had worked and supported herself and the child since February, 1940; that her husband had failed to comply with the orders of the court and had never given her sufficient money to support and maintain the child; and that he was not a proper person to have the care and custody of an infant. She admitted that she had married Goddard in New Jersey, but stated that she thought the lapse of two and one-half years from the time the a mensa decree was entered gave her the right to remarry.

On these issues, the chancellor heard the evidence ore tenus and held that the partieswere entitled to a decree a vinculo matrimonii, that the mother was entitled to the custody of the child and ordered the father to pay her $10 a week for support of herself and the child. The husband appealed.

There are three assignments of error which will be discussed in the order stated in the petition.

The first error assigned is "the granting to the complainant (Anne D. Elam) a divorce a vinculo matrimonii and refusing a divorce to the respondent (Robert D. Elam)." The decree from which this appeal was allowed granted both parties an absolute divorce. Under the circumstances hereinafter stated, we find that this assignment of error is not well taken.

The second assignment of error is based upon that part of the decree which awarded the custody of the infant to the wife.

The welfare of the infant is the supreme and paramount consideration of the court in all controversies between parents over the custody of their offspring. In this case each parent alleged and introduced evidence tending to show that the other was not perfect and that the reputation of the other was much stained with human frailties, selfishness, evil tendencies and a misconception of legal and moral obligations. Unfortunately, the uncontradicted evidence sustains, in part, both allegations.

The evidence introduced by the husband shows that on December 9, 1942, Anne D. Elam falsely stated to the authorities in the state of New Jersey that she was single. On this false representation she secured a marriage license, pursuant to which she married one Roy O. Goddard and thereafter lived in New Jersey with him as his wife.

A female detective, employed by Robert D. Elam, testified that she had seen Anne D. Elam return home late at night, sometimes accompanied by sailors and sometimes by civilians, frequently she staggered as if she were drunk, that on several occasions she saw men accompany Mrs. Elam to her room and there remain until the early morning hours. This testimony tends to show that Mrs. Elam was a lewd woman, and addicted to the use of intoxicating liquors. Suffice it here to say that the testimony of this detective was not corroborated in any particular and was contradicted by Mrs. Buchanan, the lady with whom Mrs. Elam boarded and whose testimony the chancellor accepted.

The false statement of Mrs. Elam as to her marital status, followed by a bigamous marriage and...