Gentry v. Gentry

• Decision Date: 11 January 1934
• Citation: 161 Va. 786
• Parties: MARGARET S. GENTRY, AN INFANT v. NORRIS C. GENTRY.
• Court: Virginia Supreme Court

Page 786

161 Va. 786

MARGARET S. GENTRY, AN INFANT v. NORRIS C. GENTRY.

Supreme Court of Virginia, Richmond.

January 11, 1934.

Present, All the Justices.

1. DIVORCE — Desertion — Effort to Effect a Reconciliation — Just Cause for Separation — Case at Bar. — The instant case was a suit by a husband against his wife for a divorce from bed and board. The wife answered the bill, denying the allegation of desertion and filed a cross-bill asking that she be awarded a divorce from bed and board. The husband alleged that on a particular occasion he saw his wife hugging and kissing another man. If true, such conduct on her part was not a sufficient excuse for his discontinuance of the marriage status and for the continuance of the separation without offering his wife an opportunity to return to him, and did not excuse the husband for his failure to offer a reconciliation.

Held: That the husband was not entitled to a divorce, but that the wife was.

2. DIVORCE — Separation — Desertion — "Just Cause." — The "just cause" for one consort leaving the other must be such a cause as would entitle the injured party to a divorce.

3. DIVORCE — Desertion — Efforts of Wife to Become Reconciled with Her Husband — Case at Bar. — In the instant case, a suit for divorce, the husband separated from his wife without just cause. The wife made repeated efforts to become reconciled with her husband. Inasmuch as the husband was not justified in severing the marriage relation, he was not justified in refusing to permit his wife to return to him.

Held: That the facts sustain the wife's charge of desertion against the husband and entitle her to a divorce.

4. DIVORCE — Custody of Children — Custody Awarded to Wife — Permission of Husband to Visit the Children — Case at Bar. — In the instant case, a divorce a mensa was awarded to a wife, and she having shown that she was a fit and proper person to be allowed the custody of her infant children, custody of them was awarded her. The husband should contribute such sums for their maintenance and support and as alimony for his wife as may be reasonable and just under all of the circumstances, and in order to properly ascertain the sums for those purposes the cause was remanded to the trial court with direction that they be so ascertained there. It was also directed that the trial court enter an order granting the husband permission to visit the children at such times as may be convenient.

Appeal from a decree of the Circuit Court of Henrico county. Decree for complainant. Defendant appeals.

The opinion states the case.

Gordon B. Ambler and John C. Goddin, for the appellant.

Thomas O. Moss and George B. White, for the appellee.

GREGORY, J., delivered the opinion of the court.

Norris C. Gentry filed a bill in chancery against his wife, Margaret S. Gentry, asking for a divorce from bed and board on the grounds of desertion. Mrs. Gentry answered the bill, denied the allegation of desertion charged against her and filed a cross-bill asking that she be awarded a divorce from bed and board from her husband on the ground of his desertion. Both parties claimed the custody of their two small infant children. The decree of the trial court granted the husband a divorce from his wife on account of her desertion and granted him the custody of the two infant children for nine months in the year and granted their custody to Mrs. Gentry for three months in the year. It denied Mrs. Gentry alimony and dismissed her cross-bill. The decree is now before this court for review.

It appears from the evidence that these parties eloped and were married in Washington, D.C., on June 25, 1925. At that time Mrs. Gentry was fifteen and her husband twenty years of age. The father of Mr. Gentry accompanied them to Washington, was present when the marriage license was issued and when they were married. The mother of Mrs. Gentry, who was the surviving parent knew nothing of the elopement or marriage until afterwards. She then procured a warrant for her son-in-law for swearing falsely in order to procure the license, but later had the warrant dismissed. Mr. and mrs. Gentry, soon after their marriage, returned to Richmond and lived together in the home of Mr. Russell Gentry, the father of Norris Gentry, and they continued to live there until their relations were severed on the night of January 31, 1931. Two children were born of the marriage, and they were four and one-half and two and one-half years of age, respectively, when this suit was instituted.

As is usual in such cases, a great deal of the testimony is immaterial and in stating the facts and circumstances of the final break we will only state those which we deem material and determinative.

Mr. and Mrs. Gentry lived happily together until the final separation, except that she was never satisfied to live with Mr. Gentry's parents, and no doubt living there has been responsible for a considerable part of their domestic troubles. She liked to go to dances and he did not. She would go to dances occasionally with others, to which he raised no objection, but he would not care to accompany her. She liked social functions and amusements, while he preferred to remain at home. He seemed older in his "attitude towards life than his years would denote."

In 1929, while she and her husband were visiting in Spotsylvania county, they met one John Wood Smith, and Mrs. Gentry and Smith became interested in each other. She later attended dances when he was present and for some five months before the separation they corresponded. Some of the letters from Smith fell into the hands of Mr. Gentry, and he and his wife talked about her relations with Smith. Mrs. Gentry promised to discontinue the correspondence, and so far as the record discloses she did not write any letters afterwards. Her husband, however, became suspicious.

On the night of January 31, 1931, Mrs. Gentry was invited by several married couples to a dance at Pine Needles Camp." Mr. Gentry was also invited, but declined to go. He did not object to Mrs. Gentry going. When they arrived at the place for the dance, Mrs. Gentry found that Smith was there and they danced together. Later they went outside to the front of the building and sat in a Ford coupe car. An automobile light was shining upon the front of the Ford, and several other couples were sitting in other near-by cars. Other guests were close around, going in and out of the building and to and from the near-by automobiles.

Mr. Gentry and a Mr. White, without Mrs. Gentry's knowledge, had followed her to the dance hall and were watching her. They had parked their car...