Martin v. Martin

• Decision Date: 22 March 1890
• Citation: 11 S.E. 12,33 W.Va. 695
• Parties: MARTIN v. MARTIN
• Court: West Virginia Supreme Court

11 S.E. 12

33 W.Va. 695

MARTIN v. MARTIN

Supreme Court of Appeals of West Virginia.

March 22, 1890

Submitted January 17, 1890

Syllabus by the Court.

1. Where a wife files a bill for divorce and alimony against her husband, if, at the time of the institution thereof, three years had not elapsed since she left her said husband, and during the pendency of said suit said period does elapse counting from the date of such desertion, the defendant may file a cross-bill alleging that such desertion was willful and had continued for three years; and, if the allegations of said cross-bill be sustained by the proof, he may be decreed a divorce from the plaintiff.

2. Where a wife leaves her husband without good legal cause, she is not entitled to alimony.

3. The reasonable or justifiable cause which will warrant a willful separation, and refusal to return to the home of her husband must be such as would authorize a suit for divorce a mensa et thoro.

Watts & Ashby, for appellant.

ENGLISH J.

This was a suit in equity, brought in the circuit court of Clay county, by Christina Martin, against her husband, Samuel V Martin, on the 14th day of December, 1886, to obtain a divorce a vinculo matrimonii, for alimony pendente lite, and for permanent alimony. She alleges in her bill that she and defendant were lawfully married, and that they lived together as man and wife, for some years, in peace and concord, she at all times endeavoring to fully discharge her duties as a wife and companion of said defendant; that she is now living separate and apart from her husband, and that, for several years before the separation, said defendant, forgetting and neglecting his duties and vows as a husband, engaged in a round of adulteries, and committed various acts of adultery with different Women; that for some years past the said defendant has become cross, ill, and cruel to her, threatening her with violence to such an extent that she was afraid to live with hm, and for that reason left his home, since which time said defendant has threatened her with further violence, and even to kill her if she came back, or returned to her home; that at the time of filing her bill, she had been absent from her husband's home about 12 months, and had to get her support from her children during that time; that she is neither able to support herself, nor to prosecute said suit for divorce and alimony; that the defendant was in good circumstances, owning valuable real and personal estate, and well able to provide a comfortable support and living for plaintiff; that said acts of adultery complained of had been committed in the last five years, and some of them quite recently; that she and defendant last lived together in the county of Clay, aforesaid, and that she still lives in said county; and she prays for a divorce from the bonds of matrimony, and for alimony. Several depositions were taken in the cause by both plaintiff and defendant; and On the 11th day of September, 1888, the defendant answered said bill, admitting his marriage with plaintiff, and that they lived together as man and wife until July or August 1, 1885, but denied that their domestic life was one of peace and concord, and alleging that during the greater time of their living together the plaintiff was quarrelsome, abusive, and continually failed to discharge her duties as a wife. He denies the charge of adultery contained in plaintiff's bill. He also denies any acts of cruelty towards plaintiff, or that he ever threatened her with rudeness and violence, so as to make plaintiff afraid to live with him, and thus caused her to leave his home. He also denies that since her desertion he has threatened her with further violence, or that he threatened to kill her if she came back, or returned to her home; and he further alleges that at the time his said answer was filed she had been absent, living apart from defendant, more than three years, at all times refusing to return, although often solicited so to do. He also denies that he is in good circumstances, but claims that at the time of her desertion he owned a tract of 350 acres of upland, of ordinary quality, in Clay county, but that trouble, mental vexation, and continual worry, resulting from plaintiff's unkind and unwifely treatment, caused him to sell said land to his son-in-law, Presly Donahoo, who is now the sole owner thereof, and that he (defendant) is the owner of no other property, real or personal. On the same day said defendant filed a cross-bill, to which the plaintiff, by her attorney, appeared gratis, and waived service of process, and replied generally to said answer. In said cross-bill, said S. V. Martin stated, in substance, the original proceeding in this cause, and alleged that, at the time of his marriage with plaintiff, she had two children, the fruits of an adulterous commerce between said plaintiff and himself, and he was induced to marry the plaintiff by an earnest wish on his part to legitimize, under the laws of the state, these two children born to them prior to said marriage; that, after said marriage, said plaintiff made his home miserable beyond description by her bad temper, treachery, and un wifely conduct, and, although he provided well for her, and treated her kindly, she willfully abandoned his home in August, 1885, and has since that time committed numerous adulteries with various parties; and he prays that a divorce from the bonds of matrimony be granted him from the said Christina Martin. On the 12th day of December, 1888, said cause was heard upon the bill and answer and replication, and upon the cross-bill filed by the defendant, depositions and exhibits filed, and a decree was rendered granting a divorce from the bonds of matrimony existing between plaintiff and defendant; and it was further decreed that the defendant do pay to and for the maintenance of the plaintiff the sum of $40 annually from the 14th day of December, 1887, during the life-time of said plaintiff, with interest from the 14th day of December of each year; also, that said defendant pay the costs of the suit, including a statute fee of $20 for her attorney; which sum of $40, then due, and the said annual payments therein decreed in favor of plaintiff, were made a lien upon all real estate then owned, or thereafter to be acquired, by the defendant, and leave was given the plaintiff to sue out execution against said defendant to enforce the collection of same, when they became due; and from this decree the defendant to obtained an appeal to this court.

The only allegation made in the plaintiff's bill which would entitle her to the decree complained of is that of adultery and the only proof in support of this allegation is the testimony of the plaintiff herself. When asked, in the eighth question, "State where is the defendant, S. V. Martin, now living, and under what circumstances did he leave," she answered: "He is living in Charleston, Kanawha county, West Va. He left with another man's wife, and took her where he now lives,--the women with whom he had been too intimate before he left with her, and before I left." But when she was asked, on cross examination, ...