Kittle v. Kittle

• Citation: 86 W.Va. 46
• Court: Supreme Court of West Virginia
• Decision Date: 23 March 1920
• Parties: Lillie Bishop Kittle v. G. Bruce Kittle.

86 W.Va. 46

Lillie Bishop Kittle

v.G. Bruce Kittle.

Supreme Court of Appeals of West Virginia.

Submitted March 16, 1920.

Decided March 23, 1920.

1. Divorce After Desertion for Three Years, Plaintiff May Elect to Sue for Divorce from Bed and Board Only.

Although our statute makes desertion for three years ground for absolute divorce, plaintiff is not bound after that period to sue for all the relief to which he or she may be entitled, but may elect to sue for divorce from bed and board only. (p. 49.)

2. Same General Statute of Limitations Has no Application to Divorce Suits.

Section 12 of chapter 104 of the Code, our general statute of limitations, has no application to suits for divorce. Suits for divorce being cognizable only in equity, are controlled solely by principles of equity, and the general statute of limitations does not apply. (p. 50.)

3. Same Trivial Indiscretions of Wife After Desertion by Hus-band Do Not Justify Denial of Alimony, etc.

Indiscretions of the wife after desertion of her by the husband of a trivial character, or which would not entitle the husband to a decree of divorce from bed and board against her, will not justify the court, in a suit by her against him for divorce, in denying her temporary or permanent alimony and suit money. (p. 51.)

4. Same Defendant Estopped by Prior Decree Against Defensive Matters; Record of Prior Decree May be Pleaded.

In a subsequent suit by the wife against her husband for divorce, the defendant is concluded and estopped by a prior decree of the same or another court, from setting up the same matter or matters of the same character in defense of the suit or as justifying desertion, on which he was denied relief in his suit against her, and the record of such prior decree may be pleaded and relied on as evidence of his abandonment of plaintiff without good cause. (p. 52.)

5. Same That Wife Has Unproductive Estate Does Not Warrant Denial of Alimony.

The fact that the wife has real and personal estate, but practically no income therefrom, from which she can derive support, will not warrant the court, in a suit by her, in denying her temporary or permanent alimony or suit money. The husband is bound to support his wife, according to his financial ability, out of his income, which is the proper basis of any decree against him, and the wife's capacity to earn a living or her ownership of such separate estate, can not be properly taken into consideration. (p. 54.)

6. Same Wife Need Not Use Her Separate Estate to Prosecute or Defend a Suit.

A wife is not bound to invade the corpus of her separate estate to prosecute or defend a suit for divorce when the husband has ample income from which he can supply her with the necessities of life and protect her against his wrongdoing. (p. 55.)

7. Same Court Cannot Deprive Plaintiff Wife of Dower or Mar-ital Rights.

Where a wife is decreed a divorce a mensa, the court pronouncing such decree can not lawfully deprive her of her dower or other marital rights in the husband's estate. So long as the bonds of matrimony remain unbroken, she can not be deprived of such marital rights in her husband's property. (p. 55.)

Appeal from Circuit Court, Barbour County.

Bill for divorce by Lillie Bishop Kittle against G. Bruce Kittle, with answer and cross-bill for divorce a vinculo and from bed and board. From a decree denying allowance of alimony pendente lite and attorney's fees, from the overruling of her demurrer to the matter of the cross-bill and her exceptions to sufficiency of the answer to her bill, and from a final decree awarding her a divorce from bed and board, without alimony or suit money, complainant appeals.

Reversed in part. Affirmed in part. Remanded.

Walker & Byrer, for appellant.

J. Blackburn Ware, Frank G. Kittle and Ira E. Robinson, for appellee.

MilleR, Judge:

Divorce from bed and board was the subject matter of plaintiff's bill; and in the defendant's answer he not only controverted the grounds of divorce relied on by plaintiff, but undertook to set up against her matter for affirmative relief and for a decree a vinculo and from bed and board. Defendant demurred to the plaintiff's bill; and plaintiff excepted do and demurred to the defendant's answer, as not constituting a good defense nor pleading matter justifying the affirmative relief sought. Defendant's demurrer to plaintiff's bill was overruled. Her exception to his answer was also overruled. But the court sustained her demurrer to the matter of the cross-bill in so far as it sought, on the grounds alleged, a decree a vinculo against her. After the issues were made up on these pleadings by general replications and special reply of the plaintiff to the defendant's cross-answer, the cause was referred to a commissioner, who took the testimony of witnesses and made certain findings of fact and omitted to make certain other findings to which report the defendant excepted on certain grounds, mainly that the commissioner had omitted to find certain facts which it was conceived were justified by the evidence.

Plaintiff's appeal involves three decrees: The first of March 7, 1918, entered shortly after the institution of her suit, denying her an allowance of alimony pendente lite, suit money and attorney's fees; the second, entered March 5, 1919, overruling her demurrer to the matter of the defendant's cross-answer, and also her exceptions to the sufficiency of his answer to the matter of her bill; third, the final decree upon the merits, whereby she was awarded against defendant a divorce from bed and board, but was denied alimony, either temporary or permanent, and suit money for the prosecution of her suit in the circuit court and also for the prosecution of her appeal to this court then applied for.

Plaintiff seeks to reverse the decrees below only in so far as they deny her temporary and permanent alimony, counsel fees and suit money, and undertook to deprive her. of her marital rights in the defendant's property. It is manifest that the errors in the two prior decrees were all carried into the final decree, and being so involved, we need not consider separately the errors in the interlocutory decrees, for disposition of the errors assigned in the final decree will dispose of them.

So the main question to be considered in the plaintiff's appeal is whether she was entitled to temporary alimony, suit money and counsel fees, and on final decree to permanent alimony. It is conceded by counsel for appellant that the circuit court may in its discretion withhold such allowances, at least until the case has been so far developed as to disclose the rights of the parties; but counsel contend that on final decree the court has no right, except for good cause, not presented by the record here, to deny alimony, temporary or permanent, and suit money or counsel fees. Defendant cross-assigns error and seeks not only reversal of the decree a mensa in favor of plaintiff, but justifies the denial of alimony, temporary or permanent, and suit money, upon the following comprehensive grounds: First, for want of equity in the bill; second, upon the ground that the commissioner found and the court decreed that the plaintiff was not free from blame for the desertion of her by her husband; third, because the plaintiff failed to sustain by proof the allegations of her bill that defendant had deserted her without justifiable cause; fourth, that the plaintiff was possessed of a substantial amount of property, real and personal, and was shown to have earning capacity as a seamstress, by which she could maintain herself; fifth, that the defendant on the matter of his cross-bill was himself entitled to a divorce from plaintiff, denied him by the final decree.

The alleged want of equity in the bill is founded upon two theories, (a) that as the alleged desertion by defendant occurred more than three years before suit brought, divorce a vinculo, warranted by the statute, only could be decreed plaintiff, and (b) that as more than five years had elapsed before suit brought, she was barred by the general statute of limitations, section 12 of chapter 104 of the Code.

The first point, we think, is wholly unfounded in law. It is true our statute makes desertion for three years ground for divorce a vinculo, but it does not require the injured spouse to sue for full relief or none. The policy of our law is to discourage divorce. By providing for divorce a mensa, it encourages reconciliation. To construe the statute as counsel for defendant construes it, would result in encouraging collusive practices by the parties to obtain divorces. Then all the offending party would have to do to obtain a complete divorce would be to absent himself for the required period. It does not matter that "desertion for three years is cause for divorce a vinculo, if properly construed the statute gives the complaining party right of election to sue for the one or the other kind of relief. We are cited by counsel to 2 Nelson on Divorce §1022, who for his text cites Burlage v. Burlage, 65 Mich. 624. In the Michigan case the wife sued and was decreed a divorce from bed and board. She did not appeal, but the husband did. The court said if she had appealed, as the grounds alleged and proven justified it, the court would not have hesitated to grant an absolute divorce. The court chose to modify the decree notwithstanding the failure of plaintiff to appeal, basing its action on the statute of that state authorizing the court on application to decree an absolute divorce when it appeared proper to do so. In Michigan it appears that the statute relied upon by the court evinces a public policy different from our state. We have no statute doing so, nor is there any decision of this court justifying us in giving to the injured spouse relief not sought by the pleadings. So far as we have indicated an opinion upon this question by dictum or otherwise we have held that the injured party has the right of election whether he will apply for...