Minnie Myers v. Earl F. Myers, (No. 9664)

• Decision Date: 01 May 1945
• Docket Number: (No. 9664)
• Citation: 127 W.Va. 551
• Court: West Virginia Supreme Court
• Parties: Minnie Myers v. Earl F. Myers

127 W.Va. 551

Minnie Myers

v.Earl F. Myers

(No. 9664)

Supreme Court of Appeals of West Virginia.

Submitted April 3, 1945.

Decided May 1, 1945.

Divorce

"Where a divorce is sought on the ground of cruelty based upon physical violence, provocation by the complaining spouse is material and may prevent the obtaining of relief." Wolfe v. Wolfe, 120 W. Va. 389, Pt. 2, Syl.

Appeal from Circuit Court, Marshall County. Suit by Minnie Myers against Earl F. Myers for divorce. From a decree for plaintiff, defendant appeals.

Decree reversed; bill of complaint dismissed.

Martin Brown, for appellant. W. F. Keefer, for appellee.

Riley, Judge:

Earl F. Myers, defendant in this suit for a divorce based upon the alleged ground of cruel and inhuman treatment of the plaintiff, Minnie Myers, appeals from a decree of the Circuit Court of Marshall County granting an absolute divorce to plaintiff, awarding to her the sole custody and control of the children born to plaintiff and defendant, Donald Frederick Myers, born April 1, 1939, and Leonard Adair Myers, born July 5, 1941, and decreeing to plaintiff suit money, permanent alimony, and certain items of personal property described in the bill of complaint.

The bill of complaint alleges that plaintiff and defendant were married on November 10, 1937, in Marshall County, West Virginia, where they resided together as husband and wife from the time of their marriage until October 25, 1943, when plaintiff by reason of defendant's cruel and inhuman treatment of her, left defendant's home, taking the children with her, and went to the home of her parents in Wheeling, West Virginia, and that since the separation the parties have not lived or cohabited together. Since her marriage to defendant, plaintiff further alleges that defendant has on numerous occasions mistreated and abused her, has struck her with force and violence about various parts of the body, and, in particular, on October 24, 1943, defendant, in a fit of anger, violently struck plaintiff in the face with such force that she suffered bruises, including what is commonly known as a "black eye", and on the same day that he drove her from the room which she and defendant were wont to share, then obtained a butcher knife from the kitchen of the house, which was located downstairs from the bedrooms, and followed plaintiff into the room occupied by plaintiff's and defendant's son, Donald, to which plaintiff had gone for asylum from defendant, knocked plaintiff down, brandished the knife over her in a threatening manner, and in doing so cut severely a finger of her left hand. By reason of the alleged attack and defendant's conduct in general toward her, plaintiff alleges she fears for her life should she continue to live with defendant, and in order to be safe from defendant's attacks and abuses she went to the home of her parents. The bill of complaint further alleges that defendant is not a proper person to have the custody of the children, because he becomes intoxicated frequently; that he was, in fact, intoxicated when he allegedly committed the assault upon defendant on October 24, 1943; that he gives the children intoxicating drinks and thereby encourages them to drink; and that when intoxicated defendant conducts himself in a manner contrary to the best interests of the children.

Plaintiff further asserts in her bill of complaint that defendant has contracted with his "mother (by adoption)," Catherine Myers, to buy the property in which plaintiff and defendant have been residing, together with a house adjacent thereto, both of which defendant has improved. She does not, however, know the amount of the purchase price, but says it is considerable. In addition plaintiff alleges that she and defendant have purchased and paid for two vacant parcels of land in the same neighborhood.

By the bill of complaint plaintiff seeks: (1) A divorce from defendant from the bonds of matrimony; (2) the custody of the children; (3) alimony and support money for the children; (4) a just decree relating to the property; (5) compliance by defendant pendente lite with the contract with defendant's stepmother; and (6) that defendant be ordered to pay court costs and attorneys' fees.

Defendant filed a demurrer and answer to the bill of complaint. The court overruled the demurrer. The answer denies the material allegations of the bill, and, among other things, asserts that as a result of plaintiff's activities and influence he has been ordered to take a preinduction physical examination, and has been found to be physically fit for military and naval service and is subject to call at any time; that plaintiff is not a proper person to have the custody and control of the children independently of defendant; that plaintiff has no legal or equitable interest in the contract with Catherine Myers; that the circuit court does not have jurisdiction to interfere with said contract; that defendant is not, as alleged in the bill of complaint, employed as a contractor-carpenter, but is actively engaged as a general contractor; that the income derived from such business from January 1, 1943, to and including, October, 1943, was approximately one hundred and eighty dollars per month; that since plaintiff left the defendant, which he asserts was on October 26, 1943, and not on October 25, 1943, as alleged in the bill of complaint, he has pleaded with plaintiff to return to their home, which he says is well equipped and well furnished; and that he has visited the plaintiff and the children at plaintiff's parents' home as often as plaintiff would permit him to do so. The answer further asserts that defendant is in love with plaintiff and their children; that it is inequitable and unconscionable that defendant's home should be disintegrated; that defendant is a fit person to have the custody, control, and education of the children, and that if plaintiff should continue to refuse to live with him, then the children could be maintained at his home in Marshall County under the supervision and personal direction of defendant's stepmother, Catherine Myers, who is willing, if necessary, to assume such responsibility.

Plaintiff filed a replication in which she denies that she endeavored to have her husband inducted into the military or naval service; admits that when she left defendant's home she took with her $220.00 in cash, $20.00 of which plaintiff claims defendant had given her to buy Christmas presents for the children; certain specified insurance policies on defendant's and the children's lives; one United States War bond in the amount of $100.00, payable to plaintiff and defendant and another in the amount of $25.00, issued in the name of the children. The replication admits that defendant has offered to do any honorable thing that plaintiff may require in order to persuade her and the children to return to his home, but that she has no confidence whatever in defendant's promises, and has refused to do so because of fear of her life as expressed in the bill of complaint, and finally the replication prays that the court may partition between plaintiff and defendant the real estate mentioned in the bill of complaint as belonging to them as tenants in common, and may also decree to plaintiff the value of her inchoate right of dower in the real estate belonging to defendant.

After the marriage of plaintiff and defendant on November 10, 1937, they established their home on Boggs Run in Marshall County, a short distance outside the limits of the City of Benwood, where they lived together continuously until their separation on October 26, 1943. Defendant bought from his stepmother, Catherine Myers, a parcel of land on which were located two houses and a garage, under a contract providing for installment payments. He also purchased two vacant lots in the same vicinity, which were conveyed by deed to plaintiff and defendant jointly. The larger of the two houses, consisting of five rooms, plaintiff rented, and the smaller, consisting of four rooms, was occupied by plaintiff and defendant. Defendant himself improved both houses, the improvements to the house occupied by defendant and his family being extensive.

Defendant is an experienced carpenter, mechanic, builder and cabinet maker. Prior to his induction into the armed forces of the United States, he industriously occupied himself in this work, earning therefrom an income of approximately one hundred and eighty dollars a month. At least during the earlier part of their married life, plaintiff and defendant lived happily together. Until the very day of their separation both were accustomed to engage in all night parties almost every Saturday night, either at their home on Boggs Run or at the home of friends or at clubs in the City of Wheeling and its vicinity. At these parties, plaintiff and defendant drank beer and sometimes whiskey. According to plaintiff's testimony, on one occasion defendant became intoxicated to the point of helplessness, and plaintiff admitted that on another occasion she was in the same condition. It is unnecessary for a decision of this case to detail all the happenings on these parties, or to place in the reports of this Court the names of those not immediately concerned in the charges contained in plaintiff's bill of complaint.

Most of the matters relied upon by plaintiff to establish her charge that defendant was guilty of cruel and inhuman treatment toward her clearly do not meet the requirements of our statute. It may be true, as plaintiff testified, that on July 4, 1942, at a picnic on Wheeling Creek, defendant tried to pour beer down her sister's back; that he jumped into a creek fully dressed and waded upstream, thereby humiliating plaintiff; that about a year and a half before the trial of this case defendant became angry because she had counselled him against going at a late hour to the home of a mutual friend, and in a fit of anger defendant drove the truck in which she, defendant and the older...