Lieberman v. Lieberman, 10849

• Decision Date: 03 July 1957
• Docket Number: No. 10849,10849
• Citation: 98 S.E.2d 275,142 W.Va. 716
• Court: West Virginia Supreme Court
• Parties: Oleta K. LIEBERMAN v. Benjamin LIEBERMAN. Benjamin LIEBERMAN v. Oleta K. LIEBERMAN.

Page 275

98 S.E.2d 275

142 W.Va. 716

Oleta K. LIEBERMAN v. Benjamin LIEBERMAN.

Benjamin LIEBERMAN v. Oleta K. LIEBERMAN.

No. 10849.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1957.

Decided May 28, 1957.

Rehearing Denied July 3, 1957.

Syllabus by the Court.

1. The doctrine that a person who seeks relief in a court of equity must come into court with clean hands applies to a suit for separate maintenance.

2. Inequitable conduct of the wife which, though not sufficient to constitute a ground for divorce, has caused or contributed substantially to the misconduct of the husband upon which she bases her right to relief in a suit for separate maintenance will preclude her from the relief which she seeks in such suit.

3. Under Section 11, Article 2, Chapter 48, Code, 1931, as amended, no decree shall be granted on the uncorroborated testimony of the parties or either of them in a suit for divorce.

4. To constitute cruel or inhuman treatment or reasonable apprehension of bodily hurt threats by one spouse to inflict serious bodily injury upon or to take the life of the other spouse must be deliberate and malignant and there must be reasonable probability that the person who makes such threats will execute them.

5. The findings of the trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence.

6. A decree based on conflicting evidence will be reversed when it appears that it is contrary to the preponderance of the evidence or is clearly wrong.

7. A recital in a final decree of the circuit court that an appeal had been granted to the final decree of the trial court, which is not contradicted by anything shown by the record, creates the presumption that such appeal was regularly granted by the circuit court and such presumption will be given full force and effect upon an appeal of the case in this Court.

Stanley E. Preiser, Charleston, for appellant.

H. D. Rollins, Charleston, for appellee.

HAYMOND, Judge.

From a final decree of the Circuit Court of Kanawha County entered April 25, 1956, in two consolidated cases, this Court granted an appeal and supersedeas upon the petition of Benjamin Lieberman, who is the defendant in a suit for separate maintenance instituted against him by his wife, Oleta K. Lieberman, in January 1954, and is the plaintiff in a suit for divorce instituted by him against her on May 12, 1954. Both suits were brought in the Domestic Relations Court of Kanawha County. In the suit by the wife for separate maintenance the relief prayed for by the plaintiff was based upon the charges of desertion and abandonment and cruel or inhuman treatment; and in the suit by the husband for divorce the relief prayed for by the plaintiff was based upon the charge of cruel or inhuman treatment.

The cases were consolidated and heard together in the domestic relations court upon the bill of complaint of the plaintiff and the answer of the defendant in each case; the depositions of Benjamin Lieberman, the plaintiff in the suit for divorce, and four witnesses produced in his behalf; the testimony of Oleta K. Lieberman, the plaintiff in the suit for separate maintenance, and three witnesses produced in her behalf, and the testimony of Benjamin Lieberman, before a special commissioner in chancery; the report of the special commissioner; and the exceptions of Oleta K. Lieberman to the report of the special commissioner.

The domestic relations court overruled the exceptions to the report of the special commissioner, confirmed the report, and by final decree entered October 7, 1955, refused to grant Oleta K. Lieberman, the plaintiff in the suit for separate maintenance, the relief prayed for by her and dismissed her bill of complaint in that suit, but granted the relief prayed for by Benjamin Lieberman, the plaintiff in the suit for divorce.

Upon appeal by Oleta K. Lieberman to the Circuit Court of Kanawha County that court by final decree entered April 25, 1956, reversed the decree of the domestic relations court of October 7, 1955, and remanded the consolidated cases to that court and directed it to grant separate maintenance to Oleta K. Lieberman, the plaintiff in that suit, to deny Benjamin Lieberman, the plaintiff in the divorce suit, the relief prayed for by him, and to require him to maintain and support his wife and to make certain monthly payments that had been allowed her by decrees entered by that court.

The parties to these suits, who were residents of Kanawha County, were married in Baltimore, Maryland, March 10, 1941, and after their marriage they continued to reside in Charleston, Kanawha County. No children were born of the marriage. At present the wife is living in a residence at 2 California Avenue in Charleston which is owned jointly by her and her husband and he is residing in an apartment at 305 Riverview Terrace in Charleston. They last lived and cohabited together in an apartment at 3903 MacCorkle Avenue, Charleston, Kanawha County, in December 1952, and sometime in September 1953 they moved to the residence at 2 California Avenue in Charleston where they occupied separate living quarters until the husband left on November 15, 1953.

The husband purchased the residence at 2 California Avenue for $17,500.00 and paid $1,000.00 of the purchase price. Sometime later at the request of the wife he conveyed to her an undivided one-half interest in the property. The payment of the unpaid balance of the purchase price which appears to be $16,300.00, secured by two deeds of trust, was assumed by the husband and he is making monthly payments of approximately $110.00 on that indebtedness. The wife owns some of the furniture in six rooms the value of which does not appear and the husband purchased the remaining furniture the value of which is approximately $1,500.00. During the time they occupied the residence at 2 California Avenue and until the husband left he gave the wife an allowance of $60.00 a month and purchased the groceries. After the husband left in November 1953 he paid the wife, who continued to live in the property, $40.00 in December 1953. By decree of the domestic relations court entered March 8, 1954, he was required to pay her $130.00 per month, but by a subsequent decree entered by that court March 30, 1955, he was permitted to deduct from the amount of $130.00 per month an amount equal to forty per cent of the rents received by her from the residence. The final decree of the domestic relations court, entered October 7, 1955, relieved him from the payment of the amount required by the decree of March 30, 1955, after July 11, 1955. The wife rents a part of the property and is receiving at least $60.00 a month from the rented portion. She owns no property except her furniture and her undivided one-half interest in the residence. She has no present income producing employment. The husband is regularly employed at a local chemical plant and receives a salary of approximately $7,000.00 per year. In addition to the furniture and his undivided one-half interest in the residence he owns an automobile worth $300.00 and a small chemical business the value of which is not shown by the evidence. Though the wife testified generally that her husband did not properly provide for her support before their final separation, there is no specific complaint by her that he failed to furnish her clothes or other household necessities suitable to the standard of living maintained by them since their marriage. The health of each of the parties at the time these cases were heard was good. Each testified to nervousness caused by the conduct of the other but neither produced any medical testimony to show that the health of either of them was affected or impaired by such conduct.

The evidence relating to the acts which the wife contends constitute cruel or inhuman treatment upon the part of the husband consists principally of the testimony of the wife. She testified that sometime in the spring of 1952 when she desired to use the family automobile he told her in profane language that she could not use the automobile, knocked a cup of coffee from her hand, knocked her to the floor, and cut a two inch gash in her head; that when she attempted to use the telephone to call the police to get a warrant he tried to take the telephone from her hand; that she later went to the police station but did not obtain a warrant and was told to get a lawyer and to obtain a divorce. Though she denied that she was drinking on that occasion the policeman, who testified in behalf of the husband, stated that when she came to the police station he talked to her for sometime, that she was intoxicated while she was at the police station, that he refused to obtain a warrant for her, and that he advised her to consult an attorney. He also testified that she told him she thought she would go home and kill her husband and that he called a taxicab to take her home. The policeman in his testimony did not refer to any physical injury that had been sustained by her.

The wife also testified, omitting to specify the time or place, that the husband had given her a black eye on more than one occasion; that he threatened her in December 1952, and in profane language told her that he would get rid of her; that he stayed away from home on two different nights, one of which was Christmas Eve 1952; that in January 1953, after the parties had ceased to cohabit, she, a woman and two men, after spending part of an evening at a beer parlor on Washington Street, went at her invitation to her residence about midnight; that when they came to the house with some bottles of beer which they had planned to drink there, he refused to admit her guests, treated them rudely, and caused her humiliation in their presence; and that the husband humiliated her by his overbearing attitude toward her. She admitted that she accused him of...