Martin v. Martin

• Decision Date: 12 March 1936
• Parties: MARTIN . v. MARTIN.
• Court: Virginia Supreme Court

184 S.E. 220

MARTIN .

v.MARTIN.

Supreme Court of Appeals of Virginia.

March 12, 1936.

Error to Circuit Court of City of Richmond.

Divorce suit by Alexander L. Martin against Violet Jolly Martin, wherein the defendant filed a cross-bill. Judgment for the defendant on her cross-bill, and the plaintiff brings error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

Fulton & Hall, McC. G. Finnigan, T. Dix Sutton, W. Griffith Purcell, and A. J. Baroody, all of Richmond, for plaintiff in error.

Alfred J. Kirsh, Leon M. Bazile, and W. Kirk Mathews, all of Richmond, for defendant in error.

HOLT, Justice.

This is a suit for divorce. The plaintiff, Dr. Martin, in his bill and amended bill, charges cruelty, that his wife deserted him without cause, prays for divorce a mensa and that the decree may be merged later into one for absolute divorce. He also asks that the custody of their infant child be awarded to him.

His wife in her answer denies these allegations and in her cross-bill charges him with repeated acts of adultery, asks that there be decreed to her an absolute divorce, the custody of their infant child, and an allowance for their support.

Dr. Martin is a physician practicing in Richmond and thirty years old. His wife, Violet Jolly Martin, is twenty-eight. They were married on February 24, 1925, and their infant child, a son, was born on February 3, 1926. Mrs. Martin left her husband on August 17, 1932. This suit was brought in September, 1932. Final decree therein was entered on June 4, 1934.

A divorce from bed and board may be decreed for cruelty or desertion, Code, § 5104, and one from the bonds of matrimony for adultery, Code, § 5103 (as amended by Acts 1926, c. 517). Causes of this nature usually turn upon the facts. In most cases the law applicable thereto has long been settled, adequately stated, and generally accepted.

Dr. Martin testified that his wife was unreasonably jealous and without cause, that she drank and took drugs to excess, was neurotic, at times hysterical, and on at least two occasions attempted to kill him. He said that on the morning of August 17, 1932, she attempted to cut his throat with a knife, and that in March, 1932, she attempted to asphyxiate him by turning on gas from the kitchen stove. Particularly, he tells us that without cause she charged that he was maintaining unlawful relations with a professional nurse, Miss Nettie Charles Kemp.

Because of antecedent complaints on the night of May 19, 1931, a conference be-tween his wife, himself, and Miss Kemp was by arrangement held in his automobile on one of Richmond's streets. On that occasion both he and Miss Kemp protested their innocence. This agreement, however, was reached: "I was to cease seeing the girl and my wife was to drop the matter." This agreement he did not keep. Miss Kemp was then living at 804 or 806 West Grace street. In October, 1931, she moved to apartment No. 4 at 3131 Hanover avenue, where she continued to live until March, 1932, at which apartment she was known as "Mrs. Charles." He visited her frequently there. When questioned as to the reasons for these visits, he answered:

"Q. Why was it necessary for you to personally frequent that apartment both day time and night time?

"A. Well, at times I was called there; there were other times I just went by there.

"Q. By whom were you called and for what purpose did you go there?

"A. Well, I was called by this particular woman at times, and I just stopped in for no particular reason at all, at other times."

Elsewhere he said: "She (Miss Kemp) was more or less black listed on the nurses' register, as my wife called up the hospital and proceeded to try to get her to lose her position, and later on in the year I gave the girl some more work and came in contact with her in that way."

When asked to name those from whom she secured work at his instance, he could give but one name. That was a surgical patient at a hospital. He recommended her to no other physician. He also tells us that he saw no name on the door of this Hanover avenue apartment to indicate its occupants, and that he never visited Miss Kemp at a nearby county home after she had left town.

When asked about visits to other women of questionable character, he said that such visits were strictly professional.

Mrs. Martin denies that she ever drank or took drugs to excess, or that she ever attempted to cut her husband's throat. She does say that she attempted to poison herself and that she turned on the gas from the kitchen stove. On this occasion she went back, got in bed with her husband, and was asphyxiated into insensibility. She tells us that the reason for these attempts was the attention which he was paying to other women, coupled with the fact that he told her that he no longer loved her and suggested that she get a divorce. In short, her statement is that life had become unbearable.

She tells us of changes in her husband's attitude towards her and of their discussion of Miss Kemp for the first time in August, 1930, when he admitted that he was in love with this woman. Matters went from bad to worse until the automobile conference which we have noted was held. She tells us what was then said and done:

"A. This Kemp woman got in the car and neither Dr. Martin nor the Kemp woman said anything. I turned to the Kemp woman and asked her how could she treat me as she had after supposedly being a friend, and she answered me in an airy way that she did not know; that she was in love with him and that she would never give him up as long as she stayed in Richmond. I asked her how long this had been going on. She said it had been going on about--and before she could reply Dr. Martin filled in that question--'about six months, ' as he had told me the time before we left the house. I asked Dr. Martin if he was going to marry her. He said he was. Then she said: 'Are you going to let us have the little boy?' I said no one would get my child except over my dead body. She asked Dr. Martin what he was going to do. He said he would make a decision after we arrived home. She said please not keep her in suspense; to call her as soon as he made his decision. After we got home Dr. Martin and I went to our rooms and I asked him what he was going to do. He said that he loved this Kemp woman. I then made the reply that if marrying her would make him happy--that he could do it. He said then he would go down and telephone her from his office that he was through; that he was going to liye with me--under one condition and that was that I was not to go to the Extension Telephone upstairs, pick it up and listen to the conversation, which I did not do. He returned in about half an hour after he left me. I do not know what the conversation was, nor would he tell me except that he was through with her.

"Q. At that time did he make any promise to you with reference to the Kemp woman?

"A. That he was not to see her any more."

She tells us what occurred on the morning of the day of final separation:

"I had been in the habit of taking Dr. Martin's coffee to his bedside, so that morning I took it to him as usual and I woke him. I said Dr. Martin, here is your coffee, and he said: 'Oh, Nettie, is that you.' When he made that remark I set his coffee down on the stand and I said--Alex. Martin, what did you say, and he said--oh, what did I say. I said you know what you said. He said--I thought it was my sister here with her little daughter, whose name is Nettie Grace, but with the tone in which he said it, I knew he did not mean any baby, and I left him and went on in the kitchen, to get breakfast for the little boy and myself. The atmosphere was not very pleasant and he said that I need not be so uppish, that he knew a few things about me, and I asked him what he meant. He said I had been going down to Eller-son's, putting out false statements and trying to trace him, which I denied. I went on in the bedroom and was making beds. Dr. Martin had finished his bath and had come in the bedroom to dress. Then he started saying that if I could not own up to the things that I had been telling down at Ellerson's, that he was through. He then left the bedroom and went into the living room to put his shoes on, and I followed him. I sat on the edge of the table and told him if he was through with me, after all the things I had taken off him and forgiven him for, that he made me feel like I had in murder in my heart and I would like to cut his throat from ear to ear, and that he had said he was through--now I was through, and I left the living room and before I could get in the bedroom Doctor put his arm around my waist and pulled me down on his lap and he tried to kiss me. I put my hand on his mouth and told him he would never remember the day his lips touched mine again; that I was through and to let me up, which he did, and I went on and finished making the beds and he left."

As a matter of fact she did kiss him when he left home on the afternoon of that day.

Mrs. Martin's distrust of her husband remained. She thought that she had seen him driving about town with Miss Kemp. She consulted counsel, who on January 16, 1932, employed Col. Frank Morgan, a private detective, to ascertain what were the facts. Morgan made his first and final re port on August 17th of that year. He testified that Dr. Martin was a frequent visitor at the Hanover avenue apartment, that...