Martin v. Martin

• Decision Date: 12 March 1936
• Citation: 166 Va. 109
• Parties: ALEXANDER L. MARTIN v. VIOLET JOLLY MARTIN.
• Court: Virginia Supreme Court

Page 109

166 Va. 109

ALEXANDER L. MARTIN v. VIOLET JOLLY MARTIN.

Supreme Court of Virginia, Richmond.

March 12, 1936.

Present, Holt, Hudgins, Gregory, Browning and Eggleston, JJ.

1. DIVORCE — Evidence — Evidence of Private Detectives — Necessity for Corroboration. — The evidence of private detectives should be examined with the utmost care, and uncorroborated it is seldom sufficient in divorce cases to sustain any judgment.

2. DIVORCE — Evidence — Necessity for Corroboration of Parties — Only Facts Necessary to Judgment Must Be Supported. — A divorce should not be granted on the uncorroborated testimony of the parties or either of them (section 5106 of the Code of 1930), but corroboration rests in the facts and circumstances of each case, and only those facts necessary to the judgment must be supported.

3. DIVORCE — Evidence — Necessity for Corroboration of Parties — Corroboration and Confirmation Distinguished. — A divorce should not be granted on the uncorroborated testimony of the parties or either of them (section 5106 of the Code of 1930), but confirmation is not necessary, for that removes all doubt, while corroboration only gives more strength than was had before.

4. DIVORCE — Evidence — Corroboration — May Be Furnished by Surrounding Circumstances. — In a suit for divorce corroboration need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established.

5. DIVORCE — Evidence — Corroboration — Sufficiency of Corroboration — Case at Bar. — In the instant case, a suit for divorce, appellee in her cross-bill charged appellant with repeated acts of adultery with a nurse. Besides appellee's testimony a private detective testified that appellant was a frequent visitor at the nurse's apartment, that on the door was the legend "Mr. and Mrs. Charles," and that appellant was known there as Mr. Charles. The janitor of the apartment building testified that he saw appellant coming and going from the apartment almost every day. An ice man testified that on his deliveries, which were between seven-thirty and nine in the morning, he frequently saw appellant at the apartment. Appellant himself testified that he frequently visited the nurse.

Held: That plainly there was adequate corroboration in all essential matters.

6. DIVORCE — Condonation — Affirmative Defense — Burden of Proof. — Condonation is a matter of specific affirmative defense which must be specially pleaded, and the burden of proof is upon the defendant.

7. DIVORCE — Condonation — Definition — Necessity for Knowledge. — Condonation is conditional forgiveness to which knowledge is necessary.

8. DIVORCE — Condonation — Repetition Revives Right to Complain of Injury. — It is essential that there be no repetition of the offense which is condoned, for repetition revives the right to complain of an injury forgiven.

9. DIVORCE — Condonation — Repetition of Offense — Case at Bar. — In the instant case, a suit for divorce in which appellee in her cross-bill charged repeated acts of adultery, appellant relied upon the defense of condonation. Following a conference in appellant's automobile, between appellant, appellee and a nurse with whom, appellee charged, appellant was intimate, the latter promised to cease seeing the nurse. This he failed to do according to the testimony of several witnesses, and appellee, after receiving the report of a private detective employed to ascertain the facts, left her husband.

Held: That if the agreement reached after the automobile conference was condonation, the consideration was appellant's promise to break away from the other woman, and that promise he did not keep. But appellee was in possession of no definite information until the detective's report, following receipt of which she left her husband.

10. DIVORCE — Adultery — Confirmation beyond Reasonable Doubt Not Required. — Evidence of adultery should be clear. Suspicious circumstances are not enough, but confirmation beyond a reasonable doubt is not required.

11. DIVORCE — Custody of Children — Welfare of Child Is of Paramount Importance. — When a court is called upon to award the custody of a child of tender years to one of its parents, the welfare of that child is of paramount importance.

12. DIVORCE — Alimony — Allowance for Maintenance of Wife and Child — Discretion of Court. — The allowances for maintenance of the wife and child are matters within the sound judicial discretion of the chancellor.

13. DIVORCE — Decree — Reservation of Right to Alter or Modify — Case at Bar. — In the instant case, a suit for divorce, appellee in her cross-bill charged appellant with repeated acts of adultery, asked for an absolute divorce, custody of their infant child, and an allowance for their support. The chancellor in entering a decree in favor of appellee properly reserved the right to make such changes as changing conditions might demand.

Appeal from a decree of the Circuit Court of the city of Richmond. Decree for defendant on cross-bill. Complainant appeals.

The opinion states the case.

Fulton & Hall, McC. G. Finnigan, T. Dix Sutton, W. Griffith Purcell and A. J. Baroody, for the appellant.

Alfred J. Kirsh, Leon M. Bazile and W. Kirk Mathews, for the appellee.

HOLT, J., delivered the opinion of the court.

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, section 5104, and one from the bonds of matrimony for adultery, Code, section 5103 (as amended by Acts 1926, ch. 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 between 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, 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...