Higgins v. McFarland, 4323

• Decision Date: 07 March 1955
• Docket Number: No. 4323,4323
• Parties: ALICE LENOIR HIGGINS v. EUNICE A. MCFARLAND AND WILLIAM T. MCFARLAND, ADMINISTRATOR OF JAMES M. MCFARLAND, DECEASED. Record
• Court: Virginia Supreme Court

Page 168

86 S.E.2d 168

196 Va. 889

ALICE LENOIR HIGGINS v. EUNICE A. MCFARLAND AND WILLIAM T. MCFARLAND, ADMINISTRATOR OF JAMES M. MCFARLAND, DECEASED.

Record No. 4323.

Supreme Court of Appeals of Virginia

March 7, 1955.

James G. Martin & Son, for the appellant.

Willcox, Cooke & Willcox, for the appellees.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Alice L. Higgins instituted this suit against Eunice A. McFarland, the widow of James M. McFarland, and William T. McFarland, the administrator on his estate, to enforce the payment of the balance due on an original debt of $8,600.00 secured by a deed of trust on her (Mrs. Higgins') present home, 8630 Granby Street, Norfolk, Virginia. James M. McFarland had agreed to discharge this indebtedness by paying $59.74 a month, which included principal and interest, as set forth in a contract dated August 22, 1949, between him and appellant, then his wife, Alice L. McFarland, adjusting their property rights. This contract had been approved on the 7th day of October, 1949, in a decree granting appellant a divorce from James M. McFarland. In the present suit the chancellor sustained respondents' demurrer to the bill on the ground that the suit was based on an agreement to obtain a divorce by consent and was therefore against public policy and void.

The facts alleged in the bill and appearing from the exhibits filed therewith, and admitted to be true by the demurrer, are: In 1919 appellant married James M. McFarland, by whom she had four children. The parties separated in 1935 while residing in the City of Norfolk, Virginia. Soon after the separation James M. McFarland instituted suit for divorce in the Circuit Court of the City of Norfolk. This suit was dismissed after appellant filed an answer denying the allegations of the bill. In November, 1937, McFarland brought a second suit for divorce. Again appellant answered and denied the allegations in the bill. On the issues thus raised the court heard the testimony ore tenus and by decree entered February 5, 1938, denied plaintiff a divorce, awarded the wife the custody of the four children and $20.00 a week alimony and support for herself and children. Later this weekly allowance was increased to $25.00.

McFarland moved his domicile from Virginia to North Carolina, though he continued to work in Virginia, and in 1940 obtained an absolute divorce in the Superior Court of Currituck County, North Carolina. As soon as appellant ascertained that her husband had obtained a divorce in North Carolina she instituted suit in the Court of Law and Chancery of the City of Norfolk, in which she sought a declaratory judgment as to her marital status in Virginia. The trial court held that the divorce obtained in North Carolina was inoperative and invalid in Virginia. This part of the decree was affirmed on appeal to this Court. McFarland v. McFarland, 179 Va. 418, 19 S.E. (2d) 77.

This remained the status of the parties until 1949 when McFarland, relying upon the decisions of the Supreme Court of the United States in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.ed. 279, 143 A.L.R. 1273, and Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.ed. 1577, 157 A.L.R. 1366, instituted an action against appellant in the United States District Court for the Eastern District of Virginia for the purpose of determining their marital status in Virginia and praying that the decree of divorce he obtained in North Carolina be declared valid in Virginia and elsewhere.

While this action was pending in the United States District Court McFarland and appellant executed the contract settling their property rights. In it reference was made to the numerous litigated controversies had between the parties, and in reference to the action then pending in the United States District Court it stated: 'WHEREAS neither of the parties, nor their counsel, have any assurance or certainty as to the outcome of this pending litigation and these parties, being adult parties and entitled to contract, have determined to settle all their differences in every respect by the terms of this agreement.'

McFarland, among other things, agreed to pay certain sums to his son, Harry S. McFarland, for the benefit of appellant and to assume and discharge a debt secured by a deed of trust on the house and lot heretofore mentioned.

Appellant promised and agreed to accept the property settlement made upon her in lieu of alimony and maintenance previously awarded to her by decree entered in the Court of Law and Chancery of the City of Norfolk, and to surrender all other rights and claims upon her husband or his property. She further promised and agreed that, inasmuch as Virginia courts had decided that she was the innocent spouse and entitled to a divorce, she would institute within thirty days a divorce proceeding in the Court of Law and Chancery of the City of Norfolk and would 'prosecute said proceedings to a final decree, thereby establishing to her satisfaction and conclusively that the parties hereto are divorced in Virginia as elsewhere.'

The divorce proceeding was instituted and appellant was granted a divorce and in the same decree the court further adjudged that 'the contract between the parties filed with the bill be, and it is, fully confirmed and approved and made a part of the decree of this Court to be carried out.'

After this decree became final McFarland married respondent, Eunice A. McFarland and appellant married her present husband. McFarland paid the cash obligation set forth in the contract and continued to pay the $59.74 a month on the mortgage debt until he died intestate on October 12, 1953. Thereafter, his administrator, William T. McFarland, and the surviving widow, Eunice A. McFarland, denied the validity of the obligation and refused to make the monthly payments.

It is also alleged by appellant that after McFarland had executed the contract with appellant he bought with his own money a house and lot known as 7804 Michael Drive, Norfolk, and had the property conveyed to himself and his wife, Eunice A. McFarland, as joint tenants with the right of survivorship; that he supplied the money with which to buy U.S. bonds in the amount of $5,000.00, and had them made payable to himself or Eunice A. McFarland; and that he paid the premiums on an $8,000.00 insurance policy and named Eunice A. McFarland as beneficiary; that the conveyance of the aforesaid house and lot and the $5,000.00 in U.S. bonds were all 'pure' gifts without consideration and invalid as to the claim asserted by appellant.

It is further alleged that 'the estate left by said James M. McFarland outside of house and lots and bonds is small and not sufficient to pay plaintiff the monies decreed in said divorce decree and defendants have failed and refused to pay' this obligation. The prayer is that both the real estate and personal property, or so much thereof as may be necessary, may be subjected to payment of appellant's claim.

This suit is based upon the decree confirming and approving the contract settling the property rights of the parties, not merely upon the contract itself. But if it were based on the contract the result would not necessarily be different under the facts of the case.

The parties had been separated since 1935. Appellant by former decree had been awarded and was receiving $25.00 weekly payments for alimony and maintenance. She was a married woman in Virginia and divorced in North Carolina. She was the innocent spouse and had been successful in numerous litigations in Virginia involving her marital rights. She was confronted with a long, expensive litigation over the same rights in the federal courts, in which she and her husband were represented by able and experienced attorneys. Neither the litigants nor their counsel were certain of the outcome of this litigation. Counsel and the litigants acted in good faith. It is clear from these unusual facts and circumstances that there was no possibility of the parties ever becoming reconciled. The difference in their marital status in Virginia and thirty miles away across the North Carolina boundary presented an intolerable situation, which...