Finnegan v. Finnegan

• Decision Date: 21 March 1950
• Docket Number: No. 10166,10166
• Citation: 58 S.E.2d 594,134 W.Va. 94
• Parties: FINNEGAN, v. FINNEGAN.
• Court: West Virginia Supreme Court

Page 594

58 S.E.2d 594

134 W.Va. 94

FINNEGAN, v. FINNEGAN.

No. 10166.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1950.

Decided March 21, 1950.

Syllabus by the Court.

1. In a suit for divorce, to comply with the statute, Code, 48-2-11, which provides that no decree shall be granted upon the uncorroborated testimony of the parties or either of them, it is not necessary to produce direct testimony of other witnesses to every act testified to by the party who seeks a divorce. Sufficient corroboration of the testimony of a party to such suit occurs when a considerable number of important and material facts are established by other witnesses or there is other evidence, circumstantial or direct, which strongly tends to support and confirm the testimony of the party who seeks a divorce.

2. 'In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.' Point 3, Syllabus, Taylor v. Taylor, 128 W.Va. 198 .

3. Under Code, 48-2-15, as amended, the questions of maintenance of the wife and custody of a minor child, in a suit for divorce, are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.

Martin Brown, Moundsville, for appellant.

Charles Ihlenfeld, Wheeling, for appellee.

HAYMOND, Judge.

This appeal was granted upon the petition of the defendant, Charles Finnegan, from a final decree of the Circuit Court of Marshall County, entered February 14, 1949, which granted his wife, the plaintiff Dorthy Finnegan, a divorce on the ground of cruel or inhuman treatment, gave her the custody of their twelve year old son, subject to the right of the defendant to visit him for reasonable periods and at reasonable times, awarded her alimony and support and maintenance for herself and the child and one half of a joint bank account of the parties, and required the defendant to pay a fee to the attorney for the plaintiff and the costs of the suit.

The case was heard upon the bill of complaint of the plaintiff, which contains a specific charge of cruelty by the defendant in July, 1948, and a general charge of similar acts and threats of harm and injury to the plaintiff by the defendant on other unspecified occasions; the answer of the defendant, which denies the charges, alleges that the plaintiff abandoned and deserted the defendant and their son and took $300.00 belonging to the defendant from a trunk in their home where he had put the money, and prays that the plaintiff be required to pay the sum of $542.56 to the defendant and that he be awarded custody of the child; the exhibits filed with the pleadings; and the testimony in court of the plaintiff and the defendant and the witnesses produced by each of the parties.

The plaintiff, whose maiden name was Dorthy Helen Chambers, and the defendant were married at Wheeling in September, 1935. At the time the testimony was given in this suit on February 14, 1949, she was forty two, and the defendant was forty six, years of age. After the marriage they lived together during the greater portion of their married life at McMechen in Marshall County where their only child was born in 1936, and where they were residing at the time of the final separation on July 21, 1948. Within a period of approximately three years immediately preceding their final separation in July, 1948, because of minor disagreements the plaintiff twice left the defendant for short intervals; but on each occasion they composed their differences and, at the instance of the defendant, the plaintiff returned to their home. Since the final separation in July, 1948, the parties have no lived together as husband and wife.

The dissensions leading to the incident which resulted in their final separation appear to have developed from sales of real estate owned by the defendant for $1,800.00 and $3,500.00, and the supposed use or disposition by him of those moneys, and a joint bank account of the parties of $485.12. In September, 1947, some time after the first sale, the defendant's brother in law informed the plaintiff that the defendant had told him that he intended to remain with the plaintiff until she signed the necessary papers and that after she had done so he would leave her. The second sale was concluded in June, 1948, and the plaintiff testified that afterwards, about the first of July, the defendant, who had refused her request that he deposit the money received from the sales in a joint account, told her, during an argument between them, that he then had everything in his name, that he was 'going to skip out', that he would change his name, and that she would 'never get' him. The defendant denied that he had made any of the statements attributed to him. The plaintiff further testified that after the defendant told her what he intended to do, she went to the bank and caused his name to be removed from their joint account of $485.12.

The plaintiff's version of the trouble which brought about her final separation from the defendant and the cruelty with which she charges him is that the day before it occurred she filed the lock on a trunk in which the defendant kept articles belonging to him; that in searching for the bank book of the joint account about which she and the defendant had argued and which she thought he had put in the trunk, she was unable to find the book but did find and take from the trunk $250.00 which belonged to the defendant; that he later discovered that she had broken the lock on the trunk; that about two thirty o'clock during the following night the defendant, who had been drinking, came into the room in which she was sleeping alone, turned on the lights, went to the trunk, seized the lock and threw it at her; that it barely missed her head and struck and dented the headboard of the bed in which she was lying; that she jumped from the bed; that he hit her left eye and knocked her to the bed; that she got up and that he struck her several times; that she tried to elude him but he followed her and grabbed her shoulder; that he followed her down the steps of the house to the street where a police officer, who had been called to the scene, arrested him and took him to the local jail; that as a result of the defendant's attack the plaintiff's arm was 'black and blue' and her eye 'was bleeding'; that she and her son spent the remainder of the night at the home of a neighbor; that she returned to her home the next morning; and that after some words with the defendant, who attempted to lock her in the house and then told her to leave, she became afraid to stay and left the house. The plaintiff emphatically denied that she struck or hit the defendant, though she admitted that she 'kicked at him' in her unsuccessful effort to defend herself against his attack.

The defendant denied that he attacked or struck the plaintiff. He asserts that she was the aggressor and that he merely defended himself against her attack upon him. His testimony on that point is that on the night in question he came home about eleven or eleven thirty o'clock and, after reading a newspaper, went to bed with his son in another room; that he was unable to sleep and went downstairs and again read for a time; that he was hungry and decided to go to a restaurant to eat; that, having no money in his pockets, he went to the bedroom in which the trunk was located to get a part of $300.00 which he had placed in the trunk; that he turned on the light and went to the trunk which he had previously locked and found that the lock had been broken; that the plaintiff ordered him from the room; that he went to the trunk to examine the lock; that the plaintiff then got out of bed, came toward him, tried to grab the lock which he held and began to kick and pound him; that she whirled and hit her head on a nearby chest of drawers; that she came toward him again; that he dodged her and the struck the door; that she ran downstairs and went out of the house; that she had begun to scream when he first entered the room; that he tried to quiet the child and then went downstairs and saw the plaintiff 'down on the corner'; that she was still screaming; and that a crowd of people was present at that time.

As is usually the case on such occasions, no one other than the plaintiff and the defendant was present during the entire period of their quarrel or saw all that then occurred between them. Before the disturbance ended, their son, evidently awakened by the 'screaming' of the plaintiff, came into the room from another room in which he had been sleeping. He testified that he was scared and put his head 'down in the bed'; that when he entered the room his parents were standing; that the plaintiff 'was coming toward' the defendant, who was 'standing still'; and that he saw the defendant push her away. He did not see either strike the other. He did not see the defendant inflict any bruises on the plaintiff or notice, until the next day, that her eye was 'black and blue'.

Several witnesses produced by the plaintiff, among them some neighbors and a police officer who arrested the defendant, heard her screams and saw and described her condition shortly after the disturbance had ended and she had left the house and gone to the street. According to these witnesses the plaintiff was clad in her night clothes, bare footed, and in a state of excitement; one of her eyes was swollen, bleeding and disfigured, her face disfigured, and her right arm bruised and discolored. Some of these witnesses saw the defendant at the time they saw the plaintiff and they testified that he was dressed and that they saw no screatches or bruises upon his person. One of these witnesses testified that he heard the plaintiff, in the presence of the defendant, tell the police officer who arrested the...