Mullen v. Mullen

• Citation: 188 Va. 259,49 S.E.2d 349
• Parties: MULLEN. v. MULLEN.
• Decision Date: 08 September 1948
• Court: Supreme Court of Virginia

188 Va. 259

49 S.E.2d 349

MULLEN.

v.MULLEN.

Supreme Court of Appeals of Virginia.

Sept. 8, 1948.

HUDGINS, C. J., and STAPLES, J., dissenting in part.

Appeal from Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Suit for divorce by James W. Mullen, II, against Elizabeth Wangler Mullen, wherein defendant filed a cross-bill for a divorce a mensa et thoro and other relief. From a decree granting complainant a divorce a mensa et thoro, dismissing defendant's cross-bill, and making provision for custody and support of minor child and counsel fees, defendant appeals.

Decree affirmed in part, modified in part and amended, and cause remanded for further proceedings.

Before HUDGINS, C.J., and GREGORY, EGGLESTON, SPRATLEY, Bu-CHANAN, and STAPLES, JJ.

Christian, Barton, Parker & Boyd and A. C. Epps, all of Richmond, for appellant.

Tucker, Mays, Cabell & Moore, of Richmond, for appellee.

SPRATLEY, Justice.

This is a suit instituted in September, 1946, by James W. Mullen, II, hereinafter referred to as the complainant, against his wife, Elizabeth Wangler Mullen, for a divorce upon the ground of desertion.

The bill further prayed that the complainant be awarded the permanent and absolute custody of the infant child of the parties. The defendant filed an answer and cross-bill, in which she denied the desertion of the complainant, and charged him with cruelty and the constructive desertion of her. She prayed for a divorce a mensa et thoro, custody of the infant child, alimony for herself, support money for the child, suit money and counsel fees.

At a hearing on January 7, 1947, upon testimony taken ore tenus, the trial court allowed the defendant alimony pendente lite and support for her child of $240 a month, directed the payment of $400 for additional alimony and support to the date of the hearing, and allowed certain counsel fees. Thereafter, testimony was taken by depositions, except on questions relating principally to the payment of alimony, support money and counsel fees.

On October 23, 1947, the trial court entered its decree granting a divorce a mensa et thoro to the complainant, dismissing defendant's cross-bill; awarding custody of the child to complainant for nine months of each year (the school year from September 10th to June 10th), and to defendant for the remaining three months; directing payment of $90 per month to the defendant for support of the infant child pending appeal; relieving complainant of the obligation to pay further alimony; and awarding fees to counsel for the defendant. From this decree the defendant appealed.

Mrs. Mullen contends that the trial court erred in granting the complainant a divorce and dismissing her cross-bill; in providing for a division of the custody of the infant; and in refusing to allow proper alimony, additional counsel fees, and support money for the infant.

The evidence is voluminous, containing more than five hundred printed pages. There were many charges, counter-charges and explanations as to the conduct of the parties. Most of them related to disagreements and disruptions of a minor nature. In retrospect, by reason of the present hostile attitude of the parties towards each other, these incidents apparently have been magnified. Each party has so interpreted them as to justify the attainment of their respective objectives in this proceeding. The material facts are not greatly in conflict. It will serve no useful purpose here to make a detailed examination and discussion of the evidence. It has been carefully read and considered, and we shall content ourselves with a general statement of the material and substantial facts.

James W. Mullen, II, is the only surviving child of Mr. and Mrs. James Mullen, respectively seventy-one and sixty-seven years of age. Mr. and Mrs. Mullen, Sr., and their son live in a large and expensive home surrounded by several acres of land in a fine residential district in the city of Richmond. The plaintiff is a graduate of Princeton, where his academic record was so outstanding that he was awarded the highest honors bestowed by that college upon its students and graduates. He received his B. A. degree in 1939, and Ph. D. in June, 1942.

Immediately upon his graduation, intensely interested in science, he engaged in research work for the United States government. During the period of World War II, he was deferred, at the request of Princeton, from military service, in order to apply his talents to highly technical scientific tasks in the advancement and development of war material for the Navy.

In 1940, then twenty-six years old, he met the defendant, nineteen years old, who was born and raised in Princeton, New Jersey. She there lived with her mother and sister, where they enjoyed an excellent social standing. They were married in October, 1941. A child, Sally Carter, was born to them in 1942. They first lived in apartments in Princeton; but came to Richmond in the summer of 1942 for a short vacation. They then went to Annis-ton, Alabama, where complainant was employed. In December of 1942, the duties of the complainant took him to Murray Hill, New Jersey, and he then resided with his family in the near-by town of Madison. At this time he was earning $4,000 a year, which increased two years later to $6,000.

In December, 1944, complainant established his own laboratory in Richmond, Virginia, and obtained a connection with the Navy Ordinance Department, which made it possible for him to further develop his scientific plans. He moved his wife and child to his parents' home in Richmond. In the home of his parents, they were assigned three rooms, and the defendant assisted Mrs. Mullen, Sr. in doing the cooking and housework for a considerable period of time owing to the lack of available domestic servants. For a portion of this time the complainant worked in Washington, and commuted to Richmond over the week-ends until June, 1945. At the end of 1915, complainant's salary was $7,500 per year and in 1946 it was raised to $10,000.

Until June, 1945, the married life of the couple, with the exception of a few trivial disputes, moved along smoothly. Thereafter the defendant expressed her desire for a home separate and apart from that of the parents of her husband. At that time in Richmond, as elsewhere in this country, the housing problem was acute. The complaint was so actively and intensely interested in his business that he had little spare time. However, the complainant, his parents, and his wife undertook to find a suitable home which they could purchase or lease. They enlisted the aid of several real estate agents, advertised in the newspapers, and made personal efforts, all directed to the end desired. However, they were unable to find a home or quarters which were suitable or agreeable to both complainant and the defendant. Prices were too high or locations undesirable. On two occasions, at least, the defendant declined to move to available quarters for reasons sufficient to her. She was not disposed to purchase property which would impose a debt on her husband. While unhappy about the situation, she did not express her dissatisfaction outside of the family nor even to her mother-in-law and father-in-law.

It may be said generally that a husband, consistent with his financial ability, should provide his wife a home in which she shall be the mistress, free from interference from members of her husband's family. But this rule is dependent upon the facts of the particular case and the peculiar circumstances existing. Here the evidence shows that the husband was cooperative in an honest effort to accord with his wife's desires for a separate home. He did not wilfully fail in the performance of his duty. He did provide her a home with comfortable quarters at the residence of his parents. She was not there abused or ill treated by his parents. In fact, she expressed herself as being rather devoted to them on account of their kindness to her. The evidence supports the finding of the chancellor that the complainant made a bona fide effort to secure a separate home for his wife, and that his conduct did not justify her wilful desertion of him, nor amount to constructive desertion on his part.

On July 28, 1946, the defendant left her home in Richmond for a month's visit to her mother, who was then staying in Nantucket, Massachusetts. Between August 1st and August 24th, she wrote normal, affectionate letters to her husband without indicating any purpose not to return to Richmond.

On August 27, 1946, she advised the complainant by long distance telephone that she did not intend to return to him. She said she would return to Richmond early in September to "collect her things, " see her husband and his family, and return permanently to her mother's home at Princeton.

On September 7th, complainant went to Princeton to see his wife. He urged her to return to Richmond with him. She then told him she wanted a divorce; that she wanted to go to Reno to institute the necessary proceedings; and that she wished to have the custody of their child, with support from the complainant for herself and child. She said that she had retained a lawyer to represent her, and asked him to go with her to the lawyer's office and sign an agreement covering these matters. The complainant positively refused to consider her proposal, and continued to plead with his wife to abandon such a plan. He discussed the legal uncertainties of a Reno divorce, both as to themselves and as to their child, and refused to sanction her plan in any particular. He stated that he would enter into no agreement without theadvice of his attorney, and that if she insisted on her plan for a divorce, suit should be filed in Virginia.

Being unable to come to an agreement or to effect a reconciliation, both thought that prompt action should be taken. Since the defendant planned to go to Richmond to get her belongings, he suggested that she go to Richmond that night with him, and there arrange for...