Kelly v. Kelly

• Decision Date: 13 January 1916
• Citation: 87 S.E. 567,118 Va. 376
• Parties: KELLY. v. KELLY.
• Court: Virginia Supreme Court

87 S.E. 567

118 Va. 376

KELLY.

v.KELLY.

Supreme Court of Appeals of Virginia.

Jan. 13, 1916.

Appeal from Circuit Court, Alexandria County.

Action by Joseph A. Kelly against Mary Ann Kelly. From decrees awarding plaintiff a divorce a mensa et thoro and an injunction restraining the defendant from collecting certain alimony, the defendant appeals. Reversed, and decree dismissing the bill entered.

R. Gordon Finney, of Rosslyn, and John H. Hopwood, of Boston, Mass., for appellant.

Daniel T. Wright and T. Morris Wampler, both of Washington, D. C, for appellee.

KELLY, J. On the 25th of February, 1900, Joseph A. Kelly intermarried with Mary Ann Kelly. The parties were residents of Charlestown district, Boston, Mass., and this was the matrimonial domicile during all of the time they lived together as man and wife.

In the year 1902, Mary Ann Kelly left her husband's home and filed in the probate court for the city of Suffolk, in said state (that court being one of competent jurisdiction both as to the subject-matter and the parties), her petition, alleging that her said husband, Joseph A. Kelly, had failed to support her, had several times cruelly beaten her, and had frequently visited upon her various forms of cruelty specified in the petition, and prayed for an order to prohibit him from interfering with her personal liberty and to require him to provide for her support Due process to answer the petition was served on Joseph A. Kelly, and on December 1, 1902, the court aforesaid entered an order, reciting that Mary Ann Kelly was living apart from her husband for justifiable cause, enjoining him from imposing any restraint upon her personal liberty, and requiring him to pay the sum of $35 per month for her separate maintenance and support, until the further order of the court From that time until some time in the year 1913, Joseph A. Kelly complied with the order of the court and kept up the payments therein directed. This order was intact and in force when the present suit was instituted.

It appears that some time in the year 1910 the said Joseph A. Kelly, complainant below and appellee here, came to Virginia, and in 1911 took up his residence in Alexandria county, where he has since remained. In January, 1913, he wrote his wife a letter, advising her of his change of location, telling her that his health was bad, and that he would not be able to longer pay for her support unless she would come and live with him in Alexandria county. So far as the record shows or indicates, this was the first word she had received as to his removal to Virginia, and the first communication he had sent her since the decree was entered in 1902 by the Massachusetts court. The letter in question was brief and formal, and contained no message of affection. Mrs. Kelly did not reply. In April, 1913, Joseph A. Kelly instituted the present suit in the circuit court of Alexandria county, praying for a divorce a vinculo matrimonii on the ground of desertion. The defendant, appellant here, who still resides in Boston, was proceeded against by order of publication. She filed her answer, denying all the allegations of the bill and setting up the above order of the Massachusetts court. After the bill and answer were filed and pending the taking of his depositions, the appellee sent another letter to his wife, which was written in the office of his counsel and with his counsel's assistance, inviting her to come to his home and renew marital relations. This letter, upon its face, and but for circumstances to the contrary, would appear to be a sincere attempt at reconciliation. Numerous depositions were taken by the complainant; none by the defendant, except her own affidavit that her husband had often beaten her cruelly, frequently threatened to kill her, and that she was afraid to return to him.

Two decrees of the circuit court are before us now for review, one thereof awarding Joseph A. Kelly a divorce a mensa et thoro, and the other, entered a few days later, awarding an injunction against the appellant and her counsel, restraining them from proceeding in the courts of Massachusetts or elsewhere to collect the amounts decreed her by the probate court.

There are several assignments of error, but, in our view of the case, it will only be necessary to consider that one which claims that the court erred in refusing to give full faith and credit to the order of the Massachusetts court. There is a contention that the order in question was not properly pleaded and not properly proved, but we think the contention is without merit. The order is distinctly set up in the answer, and the record from the probate court, duly certified, was identified and filed with the deposition of the complainant. It is also contended that the appellant waived the estoppel of the Massachusetts decree by pleading to the merits in the present case. The...