Hale v. Hale

• Decision Date: 04 October 1927
• Docket Number: (No. 5908)
• Citation: 104 W.Va. 254
• Parties: Pearle Hall Hale v. Rupus A. Hale
• Court: West Virginia Supreme Court

104 W.Va. 254

Pearle Hall Hale

v.Rupus A. Hale

(No. 5908)

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1927.

Decided October 4, 1927.

1. Divorce Where Husband, Sued by Non-resident Wife for

Maintenance, Filed Cross-bill Asking Divorce, She May File Amended Pleading Asking for Divorce (Code, c. 64, § 7).

A non-resident wife whose husband is a citizen of this State sues him here for maintenance. He files an answer in nature of a cross-bill praying for a divorce. She may then file an amended pleading in the suit asking for similar relief; filing of the cross-bill by the defendant confers jurisdiction for that purpose. (p. 256.)

(Divorce, 19 C. J. §§ 38 [Anno]; 303 [Anno]; Husband and Wife, 30 C. J. § 892.)

2. Equity Equity Regards Substance Rather Than Form. In chancery pleadings it is the disposition and practice of courts of equity to regard substance rather than form or name, and to so mold and treat the pleadings as to attain the real justice of the case. (p. 259.)

(Equity, 21 C. J. §§ 199, 205.)

3. Divorce; Where Wife Establishes New Home Where Husband Lives With Her, His Leaving Without Requesting Her to Accompany Him and Refusing to Live With Her is "Desertion," Entitling Wife to Divorce From Bed and Board.

A wife leaves the residence of her husband and establishes a new home where he lives and cohabits with her for a number of years, and then, without requesting that she go with him to another place of abode, leaves and refuses further to live with her. Such action on his part constitutes desertion, entitling her to divorce from bed and board. (p. 259.)

(Divorce, 19 C. J. § 112.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Mercer County.

Action by Pearle Hall Hale against Rufus A. Hale for divorce. From a decree for plaintiff, defendant appeals.

Affirmed.

Bernard McClaugherty, Russell S. Ritz and J". M. B. Lewis, Jr., for appellant.

Sanders, Crockett, Fox & Sanders and Arthur F. Kingdon, for appellee.

Litz, Judge:

The defendant appeals from a decree of the circuit court, granting the plaintiff a divorce from bed and board, $3,000.00 attorneys' fees, and $200.00 per month alimony until the further order of the court.

The plaintiff and defendant were intermarried November 1st, 1901, and thereafter lived together as man and wife at the home of his mother in the city of Bluefield, West Virginia, until 1918. On account of alleged mistreatment by the wife of George Hale, a brother of the defendant and who also resided at the old home, the plaintiff went to her father's (a few hundred yards distant) in Graham, Virginia, where she has since almost continuously resided. Whether she left the Hale home with his consent, as she claims, or Avithout it, according to his contention, the defendant nevertheless lived and cohabited with the plaintiff at her newly acquired domicile until 1923 or 1924, when, as she charges, by reason of his infatuation for one Mary Jane Porterfield, he wholly deserted and abandoned the plaintiff. In the meantime for short intervals during the absence of the wife of George Hale, the plaintiff and defendant lived together at the old Hale home.

This suit was instituted October 21st, 1925, for alimony on the ground of desertion. At December Rules 1925 the de- fendant filed his answer in the nature of a cross bill charging that the plaintiff deserted him in the year 1918, and praying for an absolute divorce. At January Rules 1926, the plaintiff filed a "special reply" praying dismissal of the defendant's answer in so far as it set up new matter and asked for affirmative relief. May 28th, 1926, the plaintiff filed in open court an "amended special replication" praying for an absolute divorce on the ground that the defendant had been guilty of adultery with said Mary Jane Porterfield.

The decree complained of is challenged for reasons: (1) That the court did not have jurisdiction to award the plaintiff a divorce; (2) that if was improper to permit the plaintiff to file a "special replication" and an "amended special replication"; (3) that the evidence does not warrant the granting of a divorce in her favor; (4) that the alimony and attorneys' fees are excessive. The only authority cited in support of the first proposition is section 7, chapter 64, Code, providing that "in no case shall a suit for divorce be maintainable unless the plaintiff be an actual bona fide citizen of this state, and shall have resided in the state for at least one year immediately preceding the bringing of the suit." It is very true that the plaintiff could not in the first instance have maintained a suit for divorce. The defendant, by the filing of his cross bill, however, became within the meaning of the statute, the plaintiff in the suit praying for a divorce. If the court had jurisdiction of his cross bill, which is not questioned, then the original plaintiff was entitled to answer the cross bill praying for similar relief.

"Where an action for divorce is brought by a resident of the state of the forum against a nonresident it is generally held that a divorce may be granted the non-resident on his or her cross bill though a statute in general terms requires the complainant in an action for divorce to have been a resident of the state for the designated time. And it has been held that the abandonment or dismissal of the original bill or petition does not oust the court of jurisdiction to grant a divorce to the non-resident cross petitioner. The jurisdiction of the court to entertain a cross bill by a non-resident defendant is based on the familiar principle that a court of equity having acquired jurisdiction of the parties and of the subject matter of the suit will retain and exercise such jurisdiction until the equities of all the parties are meted out to them." 9 R. C. L., page 404, See. 201.

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