De Mott v. De Mott

• Decision Date: 23 April 1956
• Docket Number: No. 4482,4482
• Citation: De Mott v. De Mott, 198 Va. 22, 92 S.E.2d 342 (1956)
• Parties: DOROTHY FLORENCE DEMOTT v. HARRY BERNARD DEMOTT. Record
• Court: Virginia Supreme Court

Page 342

92 S.E.2d 342

198 Va. 22

DOROTHY FLORENCE DEMOTT v.HARRY BERNARD DEMOTT.

Record No. 4482.

Supreme Court of Appeals of Virginia

April 23, 1956.

George E. Haw(Leslie D. Campbell, Jr., and Haw & Haw on brief), for the appellant.

David Meade White, Jr., and Ivy P. Blue, Jr.(White, White & Roberts on brief), for the appellee.

JUDGE: EGGLESTON

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

On July 2, 1954, Harry Bernard DeMott filed in the court below his bill for divorce against Dorothy Florence DeMott on the ground that she had willfully deserted him without justification on June 29, 1954.He prayed for the custody of their infant daughter, Sharon Ann DeMott, who was then six years of age.The bill alleged that the wife was an alcoholic, was frequently abusive of the plaintiff, and unmindful of the care, health and welfare of their daughter.

The wife filed an answer and cross bill in which she denied the allegations of the bill and alleged that five days previous to the date of the alleged desertion her husband assaulted and beat her and threatened her life with a knife.She alleged that as the result of 'this conduct'she was afraid to live with him and on advice of counsel left their home on June 29, 1954, taking their daughter with her.She prayed for a divorce a mensa on the ground of cruelty and constructive desertion and that she be awarded the custody of the child.There was no prayer for alimony.

The litigation has been conducted with a display of extreme bitterness on both sides.Several collateral issues were disposed of which are not material on the present appeal.Suffice it to say that upon the consideration of depositions taken by both parties, the lower court entered a decree awarding the plaintiff husband a divorce a mensa, the custody of their child, and dismissing the cross bill of the defendant wife.From that decree the wife has appealed.She contends that the decree is contrary to the law and the evidence in that, (1) It awards the plaintiff husband a decree of divorce based on his uncorroborated testimony; (2) Under the evidence adduced she, the defendant wife, should have been awarded a decree of divorce on her cross bill; and (3) Under the evidence adduced she, the defendant wife, and not the plaintiff husband, should have been awarded the custody of their child.

The printed record upon which we are asked to review the sufficiency of the evidence is before us in a most unsatisfactory state.The designation of the parts of the record for printing is entirely inadequate for this purpose.The appellant has included in her designations mainly such portions of the evidence as are favorable to her, omitting those portions which are favorable to the appellee.For example, she has designated the cross-examination of the plaintiff and omitted the direct examination of this witness.In a similar manner she has designated her own direct examination and omitted her cross-examination.The testimony of other witnesses is treated in a similar manner.

The appellant who asks us to set aside a finding of the trial court on the ground that it is not sustained by the evidence has the primary responsibility of designating all of the evidence which is necessary and material for us to determine that issue.He must designate not only that which is favorable to him, but that which is favorable to his opponent, for obviously without access to all of the material evidence it is impossible for us to determine its sufficiency.

Where, as here, the appellant has been derelict in this respect the rule affords the appellee an opportunity to supply the missing material evidence by a designation filed either with the clerk of the lower court or with the clerk of the appellate court.Rule 5:1,§ 6(a).In the present casethe appellee did not avail himself of this opportunity, but instead has printed some of the omitted evidence in his brief.This is not a compliance with the rule.Rule 5:1,§ 6(f), says: 'It will be assumed that the printed record and the original exhibits contain everything germane to the errors assigned, * * *.'(Italics supplied.)

Again, Rule 5:1,§ 6(d), provides that 'all assignments of error must be designated by appellant and printed.'(Italics supplied.)This mandatory provision has been ignored, and we must look to the manuscript record for the assignments of error.

The failure of the appellant to present an intelligible record made up in accordance with the rules is a plain invitation to dismiss the appeal which is likely to be accepted.Lewis v. Commonwealth, 193 Va. 612, 615, 70 S.E.2d 293, 296.

The bill alleges that the parties were 'lawfully married' at Camp Stoneman, California, on September 15, 1943, but the record shows that they were previously married at Elkton, Maryland, on December 24, 1941.The application for the first marriage license was signed by DeMott, who in response to the inquiry whether he was 'single, widower or divorced,' stated that he was 'single.'It developed, however, that unknown to his bride he had been previously married to Ethel Ronoman who had obtained an interlocutory decree of divorce from him on the ground of adultery in a New York court on November 13, 1941.A final decree of divorce in that matter was not entered until March 12, 1942, several months after the plaintiff's marriage to his present wife.When she discovered this situation they were again married at Camp Stoneman, California, on September 15, 1943.

After their marriage in 1943the plaintiff husband became an officer in the Quartermaster Corps of the United States Army.He was stationed at military posts in this country and in Germany where he lived with his wife and daughter, the latter having been born on May 9, 1948.In March, 1953, he was transferred to the Richmond Quartermaster Depot in Chesterfield county, where he was stationed with the rank of captain at the time of the institution of the present proceeding.In March, 1954, he rented an apartment at Ashland in Hanover county, where he made his home with his wife and daughter until the date of the separation on June 29, 1954.

In testing the sufficiency of the evidence to sustain the decree here under review, it must be remembered that in a suit for divorce the allegations of the bill, whether denied or not, must be proved by full, clear and adequate evidence.Westfall v. Westfall, 196 Va. 97, 102, 82 S.E.2d 487, 490.Moreover, Code, § 20-99, expressly provides that a divorce shall not be granted 'on the uncorroborated testimony of the parties or either of them; and, whether the defendant answer or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise'.

The plaintiff husband alleged in his bill and testified that from 1946 until the date of their separation, the defendant wife had been drinking to excess at the several posts at which he had been stationed and where she accompanied him; that she had embarrassed him and seriously impaired his career as an army officer by making false reports to his superior officers, at his present post and elsewhere, about him and his treatment of her; that she had frequently neglected her household duties; that she was not a fit mother to their child; and that she had left their home in Ashland and willfully deserted him without cause on June 29, 1954.

Each of these charges the defendant wife denied categorically in her answer and in her testimony.The plaintiff husband introduced not a single witness to corroborate his testimony as to these matters.Not a witness corroborated his testimony that the defendant wife had drunk to excess.Not a single witness from his present military post in near-by Chesterfield county, or from any other post at which he had been stationed, corroborated his testimony as to any charges she had made to them about him, or that his military career had been interfered with or impaired by anything she had done to or said about him.Not a witness corroborated his testimony that she had neglected her household duties.The only testimony on the latter subject comes from those who testified on her behalf and is to the contrary.Not a witness except him testified that she was an unfit mother.

As to the occurrences which shortly preceded the separation, the plaintiff testified that on June 24, 1954, an altercation arose between his wife and himself because he allowed the child to go 'barefooted;' that she'grabbed the child by the arm' and proceeded to strap her shoes on in a rough manner; that she swore at the child and he intervened; that as the result of this altercation he took the child and went to the office of a justice of the peace in Ashland to see what could be done to keep his wife 'from causing more trouble.'On the same day Mrs. DeMott procured a warrant for the plaintiff's arrest.

The plaintiff husband further testified that his wife and daughter remained at their home in Ashland through the night of June 28.When he returned from work the next day, June 29, he found that his wife had packed all of her clothes and those of the child and had left home without informing him where she was going.The warrant which she had procured for his arrest was tried and dismissed on July 1.At that trial he ascertained that since leaving home she and the child had been staying at a near-by motel.Some days later he found out that she and the child had left the motel and had gone to the home of Mrs. DeMott's mother in New York.

The wife's account of their quarrel on June 24, and the cause of her leaving home later, is quite different from that of her husband.She said that they'had been arguing all that week;' that her husband and the child came in late that afternoon; that when she protested that the barefooted child might cut her feet her husband became angry, grabbed her, threw her against the wall, struck her, and threatened her with a butcher knife.Immediately thereafter, she said, h...