Gloth v. Gloth

• Decision Date: 12 June 1930
• Citation: 153 S.E. 879
• Court: Virginia Supreme Court
• Parties: GLOTH. v. GLOTH et al.

153 S.E. 879

GLOTH.

v.GLOTH et al.

Supreme Court of Appeals of Virginia.

June 12, 1930.

In case of divorce "a vinculo, " marriage bond is completely severed, and there is no continuance of marital status; but where divorce "a mensa et thoro" is decreed there is no severance of bond, parties remaining husband and wife though authorized to live in separation. The husband's duty to support wife continues under court's supervision in case of divorce a mensa et thoro.

[Ed. Note.—For other definitions of "Divorce a Mensa et Thoro" and "Divorce a Vinculo, " see Words and Phrases.]

Such power cannot be rendered nugatory by device of making only single provision for the support and maintenance of wife and child without definition of their several rights.

It was contended that under terms of contract husband must pay weekly payments till wife's death or remarriage, even though husband should die before wife's death or remarriage, and that therefore decree having adopted provisions of contract must be held to be award in lien of alimony and not alimony.

The bill showed a failure to proceed promptly to repudiate the contract upon the removal of the duress.

The bill alleged that wife had been guilty of adultery after divorce decree was rendered.

Husband was, however, in contempt of court in not making payments, and court should refuse to proceed further in the case until husband purged himself of contempt by paying amount due.

The contract did not provide for such conditions, and they were not necessarily implied from contract.

Such evidence would not be admissible under the exception to the parol evidence rule that it does not prevent true consideration for contract being shown.

The bill was to secure divorce a vinculo, to stop alimony payments, and to get custody of child, and was demurred to on ground that, being filed as petition and cross-bill, court was without jurisdiction to determine matter as set forth in bill or to grant relief therein prayed for.

The suit was by divorced husband to change support order. The bill was demurred to on the ground that it asked construction of contract and deed of trust, thus recognizing its validity, and also asked that enforcement of such contract and deed of trust be enjoined, which prayers were alleged to be repugnant,

It was claimed that the bill for injunction violated Code 1924, § 6140f, which provides that mere pendency of any action brought merely to obtain declaration of rights, or determination of question of construction, shall not be sufficient ground for granting of any injunction.

Appeal from Circuit Court, Arlington County.

Suit by W. C. Gloth against Marjorie Gloth and another. From a decree dismissing the bill, plaintiff appeals.

Reversed and remanded.

John S. Barbour, of Fairfax, and H. W. Dudley, of Clarendon, for appellant.

Wendenburg & Haddon, of Richmond, and Harry R. Thomas, of Clarendon, for appellees.

EPES, J.

This is an appeal by W. C. Gloth from a decree entered July 28, 1928, by the circuit court of Arlington county, sustaining the demurrer of Marjorie Gloth to a bill in chancery filed May 22, 1928, by W. C. Gloth against Marjorie Gloth and the Citizens' National Bank of Alexandria, and dismissing the bill.

This suit is an aftermath of a former suit for divorce a mensa et thoro brought by Marjorie Gloth against William C. Gloth.

On June 24, 1926, Marjorie Gloth filed her bill in the circuit court of Arlington county for a divorce a mensa et thoro from her husband, W. C. Gloth, the appellant here. The sole ground for divorce alleged in said bill was that the said W. C. Gloth had deserted and abandoned his said wife, which desertion is alleged to have taken place on the 27th day of September, 1925, and to have continued ever since.

The bill prayed that the care and custody of their only child, a son, William C. Gloth, Jr., who was born September 6, 1913, be awarded to Marjorie Gloth, and "that the court enter a decree settling the property rights of the parties, " and for further and general relief. But the bill does not pray for alimony, except in so far as it may be deemed to be prayed for in the prayers above mentioned.

On June 25, 1926, William C. Gloth filed his answer to this bill neither admitting nor denying the allegation that he had de-serted his said wife, but calling "for strict proof of such allegations as may be ma terial." His defense was apparently limited to the filing of said answer.

During the pendency of this suit a contract was entered into between William C. Gloth and Marjorie Gloth, the material parts of which, separated by us for reference into numbered paragraphs, are as follows:

(1) "This contract and property settlement, made * * * this the 2nd day of June, 1926, by and between William C. Gloth, party of the first part, and Marjorie Schneider Gloth, his wife, party of the second part, witnesseth: "

(2) "That, whereas, the parties hereto by reason of unhappy differences are now separated, and the party of the second part having filed suit against the party of the first part in the Circuit Court for Arlington county, Virginia, for a divorce on the grounds of desertion, it is desired to make a property settlement between the parties; and"

(3) "Whereas, the party of the second part has agreed to accept this settlement, and the provisions for her hereinafter made, in lieu of dower and of her distributive share in the estate of the party of the first part, and in lieu of alimony; and

"Whereas, it is the desire of the party of the first part, in view of this settlement, to release all right of curtesy and of distribution in the estate of the party of the second part;"

(4) "Now, therefore, for and in consideration of the premises and of the acceptance of this settlement by the party of the second part, the party of the first part does hereby agree to pay to the party of the second part on Monday of each week, beginning May 16, 1926, the sum of Forty Dollars ($40) per week, until Monday, June 28, 1926, from and after which time he will pay to the party of the second part the sum of Fifty Dollars ($50) per week, for the maintenance and support of herself and of the infant child of the said parties, which payment is to be in full and in lieu of all allowances for clothing and other necessaries for herself and the son of said parties, except that the party of the first part, in addition thereto, in the event of unusual or protracted illness, entailing operations, hospital expenses or professional nursing, either for the party of the second part or for the son of the said parties, agrees to pay any and all such expenses when notified that the same are necessary."

(5) "And the party of the first part in order to secure the payment of the said sum of Fifty Dollars ($50) per week as aforesaid, does hereby agree that he will * * * assign and transfer to the Citizens National Bank of Alexandria, Virginia, " (certain stocks and bonds which the appellant alleges to be worth in excess of $10,000), "upon the following trust, to-wit, to be held by the said Citizens National Bank of Alexandria, Virginia, * * * until there shall be default by the said party of the first part in the prompt and regular payment of the said sum of Fifty Dollars ($50) per week when and as the same shall become due and payable, in which event to sell, as from time to time may be necessary, such part or parts of the property so held in trust by it, as it may in its discretion deem best, and to pay the proceeds thereof to the party of the second part to the extent of any arrears. * * * "

(6) "The instrument creating said trust shall further provide * * * that in the event that any of the property held in trust should depreciate in value, or the amount or value of the property held in trust be reduced by any sale under the provisions of the trust, the party of the first part will deposit, assign, transfer, or convey to the trustee additional property sufficient to make up any such depreciation, loss, or reduction."

(7) "It is understood that in the pending divorce proceedings the court shall be asked to ratify and confirm this property settlement in its entirety, and to direct the payment of the said sum of Fifty Dollars ($50) per week by the party of the first part to the party of the second part, and that nothing herein contained, or contained in the instrument creating the trust herein provided for, shall affect the right, or be taken in lieu of the right of the party of the second part, to seek the aid of the court to enforce said payments should the same be in arrears, or to seek the aid of the court in enforcing any of the provisions of said trust if and when necessary."

(8) "And the party of the first part further agrees as a part of this settlement that he will convey to the party of the second part" (certain described real estate); " * * * and that he will convey to the contracting purchaser title to what is known as the Johnson Hill property in Arlington county, Virginia, upon demand being made upon him by the party of the second part and without further consideration to him, the party of the first part."

(9) "And the party of the first part further agrees that he will as of the date of this settlement, execute as a part of this settlement, and in consideration thereof, a will by the terms of which he will bequeath and devise to the party of the second part one-third of all of his estate of whatsoever kind, character, or description, whether in law or in equity, except, however, his interest in the home place located at or near Erie, in the State of Pennsylvania, to be hers absolutely and without reservation or restriction of any kind; and he further agrees as a part of this settlement and in consideration hereof that he will not make any other or future will without bequeathing anddevising to the party of the second part one-third of all of his estate as aforesaid with the exception of his interest in the Pennsylvania property, unless the party of the second part...