Hughes v. Hughes

• Citation: 4 S.E.2d 402
• Parties: HUGHES. v. HUGHES.
• Decision Date: 13 September 1939
• Court: Supreme Court of Virginia

4 S.E.2d 402

HUGHES.

v.HUGHES.

Supreme Court of Appeals of Virginia.

Sept. 13, 1939.

Appeal from Circuit Court, Dickenson County; Alfred A. Skeen, Judge.

Suit for divorce by Newton E. Hughes against Olga Hughes, wherein defendant filed cross-bill. From a decree denying parties any relief, defendant appeals and plaintiff assigns cross-error.

Reversed and remanded with directions. Argued before CAMPBELL, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, J J.

Fred B. Greear, of Norton, and Walter B. Phipps, of Clintwood, for appellant.

J. C. Smith and S. H. & Geo. C. Sutherland, all of Clintwood, for appellee.

HUDGINS, Justice.

This is a suit for divorce, instituted by Newton E. Hughes against his wife, Olga Hughes. The bill alleges that the wife was jealous, quarrelsome and nagging; that she falsely accused her husband of infidelity, and that as a result of continuous bickering his health became so impaired that he was forced to leave his home, resign as assistant cashier of a branch bank in Haysi, and secure employment at a reduced salary in Richmond. The husband prayed that the custody of their only child, a boy eight years of age, be given to him, or his father, W. E. Hughes, and that he be granted a divorce a mensa.

The wife filed her answer and cross bill. The answer denies each material allegation of the bill. The cross bill alleges that the husband wilfully, and without just cause, deserted her; that she was without funds necessary to defend her rights in the suit, and that she had no separate means to support herself and her child. The prayer of the wife was that her husband be compelled to pay her temporary alimony pendente lite, suit money and attorney's fee, and permanent alimony, and that the custody of the child be awarded to her.

On the final hearing the chancellor denied the parties any relief, but leave was given either party to apply to the court "as future circumstances might require, for the care, custody, maintenance and education of the infant." To that decree the wife sought and obtained this appeal. The husband assigns cross-error. These contentions make it necessary to examine the evidence, in detail.

It appears that the parties were married on May 17, 1924, and lived together, as man and wife, in Dickenson county until January 1, 1938. The only issue of this marriage is a son, Robert Edward Hughes, who was born in April, 1931. This couple was entirely dependent for their sustenance upon the earnings of the husband. Soonafter the marriage, he acquired a lot in the town of Clintwood, and with the active cooperation of his wife, built thereon a modest home, which cost approximately $2,500. Prior to 1937, the parties seem to have lived together happily, peacefully and contentedly, without any substantial disagreements.

During most of the married life of the parties, the husband was connected with county politics in Dickenson county. He served as deputy clerk of the county for some four years. He then became deputy treasurer of the county, and continued as deputy treasurer until John M. Rasnick, the treasurer, was defeated for the office in the November election, 1935. Soon after this date he secured a position as assistant cashier of the Cumberland Bank & Trust Company, and was placed in charge of a branch of this bank at Haysi, in Dickenson county. For several months the parties continued to live at Clintwood. The husband drove twenty-two miles to the bank in Haysi each day to work. In May of the same year, the family moved into a rented house at Haysi, for which they paid $25 a month. The home in Clintwood was rented to third parties, for $20 per month. This latter sum was used by the wife, with the husband's consent, as spending money for herself and child, except a small part which was used for repairs upon the house in Clintwood.

Sometime in the late summer or the early fall of 1937, the husband executed a deed of gift conveying the house and lot in Clintwood to his wife. He stated that this was done in an effort to stop her jealous bickerings; she claims that it was done without her suggestion, and that the deed was left among her papers unrecorded until sometime in January, 1938.

The husband contends that he was forced to leave his wife in December, 1937, and states his reason for so doing was "to get relief from the nagging and worries." The first and only specific instance found in his testimony as to this "nagging and worry" occurred in the fall of 1934. He stated that on this occasion "he was accused of a woman in this town" (Clintwood); that he was nagged and annoyed for a period of two months; he then "explained to her that there was no ground for such accusations. * * * I don't know whether I convinced her I was innocent or not, but after we had discussed it and she made the statement that she wouldn't never bring it up again, I told her I wouldn't live with her again if she did." He does not claim that any other strain occurred in his marital life until July, 1937, in which month his wife again made false accusations against him and repeated them at intervals the rest of the year. The substance of these alleged false accusations, as stated by the husband, was that his wife repeatedly said to him "she knew more on me than I thought she knew. * * * After admitting that she was jealous, I was never able to get her to point out any particular party, in order that I might adjust or clarify myself."

This is the type of testimony which the husband claims seriously impaired his health and caused him to lose weight.

The uncontradicted evidence is that the husband had a serious attack in June, 1937, thirty days before he claims she began for the second time to make accusations against him. Dr. F. H. Smith, a member of the staff of the Johnston Memorial Hospital in Abingdon, Virginia, made a detailed medical report on the condition of Newton E. Hughes. In this report it is stated that the patient was suffering from a severe attack of indigestion and that he had been subject to these attacks for four years prior to June 7, 1937, the date of the report.

No witness other than the husband attributed his attacks of indigestion and nervousness to his wife's treatment of him. The friends and neighbors who testified in the case stated that so far as they could observe the wife was quiet, considerate and attentive of her husband's welfare. They never heard her quarreling with her husband, or saw any evidence of jealousy which her husband testified she exhibited because of his attentions to other women.

Code, § 5106, provides that a suit for divorce shall be instituted and conducted as other suits are, "except that the bill shall not be taken for confessed, nor shall a divorce be granted on the uncorroborated testimony of the parties, or either of them; and, whether the defendant answer or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise; * * *".

The husband's testimony of his wife's ill treatment of him is very general, vague and indefinite. It is not corroborated. Hence, the trial court was clearly right in denying his prayer for a divorce a mensa.

The husband contends that he had made ample financial provision for his wife and child, and that she is not entitled to any affirmative relief. These financial provisions were:

(1) A conveyance to her of the home in Clintwood, valued at approximately $3,000.

(2) That since the separation he has sent her $20 per month.

(3) That he has arranged, through his father, with merchants in Clintwood to extend $30 a month credit to his wife for food and clothing.

(4) That he gave her an automobile and other personal property, before instituting this suit.

It seems that after the husband had definitely determined to leave his wife, he had his father, W. E. Hughes, and his lawyer, J. C. Smith, make her a proposition for the settlement of their marital difficulties. The wife understood this proposition to be that if she would return from Haysi to Clintwood, she would have the home and the furniture, free of debt, that the custody of the boy would be given to W. E. Hughes and that either she or her husband could visit him whenever they so desired, and that W. E. Hughes would not permit either her or the boy to suffer for food or clothing. In the event the wife accepted this proposition, she surrendered her right to the care and custody of her only child, the possession and title to a Chevrolet car registered in her name, and virtually transferred her marital right to look to her husband for maintenance, to his father, W. E. Hughes, who was under no legal obligation to provide such maintenance. This proposition was declined by the wife.

It appears that the husband, without consulting his wife, notified the tenant in the home at Clintwood to vacate on January 1, 1938. The husband took his wife's car and kept it in Richmond. Knowing that her husband had left her, she moved her furniture from Haysi to Clintwood, and stored it in the home, and continued to live with one of her sisters. Early in 1938, she recorded the deed of gift from her husband, and rented the home (except two rooms in which her furniture was stored) for $22.50 per month. The father, W. E. Hughes, gave her $10 a month for January and February, and she received $20 a month for March, April and May. She was not fully informed as to what arrange ments, if any, had been made for her to obtain the necessities of life from the merchants in Clintwood, and as a matter of fact never bought one pennyworth from them. This arrangement for extending credit to the wife was made by W. E. Hughes, who is under no legal obligation to support and maintain Olga Hughes and her son, and therefore this extension of credit to the wife may be withdrawn at will. The inference from the testimony is that it has already been so withdrawn.

It further appears that Newton E. Hughes owed the following obligations:

(1) He was accommodation endorser on a note for...