Reynolds v. Reynolds
| Decision Date | 25 October 1910 |
| Parties | REYNOLDS v. REYNOLDS. |
| Court | West Virginia Supreme Court |
Submitted September 7, 1909.
Syllabus by the Court.
To justify a decree of divorce on the ground of desertion or abandonment without justifiable cause, the evidence thereof must be full and clear.
Desertion cannot be inferred from the fact that the parties do not live or cohabit together.
Justifiable cause, which will excuse a husband or wife, from leaving the other, must be such as could be made the foundation of a divorce from bed and board.
The conduct of the one party, which will justify desertion by the other, must be of such a nature as is inconsistent with the marital relations, or to render cohabitation unsafe.
A case in which the facts proven were held to be insufficient to constitute good grounds of desertion.
Neither the refusal of sexual intercourse, nor the fact that the parties occupy separate houses or apartments, will alone constitute good grounds for desertion.
It is error for a court, upon decreeing a divorce from bed and board, to vest the title to the husband's real estate in fee in the wife as permanent alimony, unless there be special circumstances calling for such decree.
The general rule is that the income of the husband, whether derived or to be derived from his personal exertions, or from permanent property, or from both, is the fund from which alimony is derived, and from which there should be a personal decree, the amount to be determined by the circumstances of each particular case.
Appeal from Circuit Court, Wood County.
Action by Emma F. Reynolds against William O. Reynolds. Decree for plaintiff, and defendant appeals. Affirmed in part, reversed in part, and remanded.
J. F Laird, for appellant.
Thomas Coleman, E. L. Coleman, and W. H. Wolfe, Jr., for appellee.
The plaintiff, for alleged desertion of her by defendant, sought a decree of divorce a mensa et thoro, and, the custody of her infant daughter, and that the interest, being the one fourth undivided interest of her husband, in a certain lot in the city of Parkersburg, be transferred to her as permanent alimony, and general relief. An attachment for $2,000.00, the approximate value of said lot, as alleged in the bill, was also sued out and levied by the sheriff thereon.
The original decree pronounced December 20, 1907, in accordance with the prayer of the bill, adjudged that plaintiff and defendant be and they were thereby divorced from bed and board, and the care and custody of their infant daughter, Marion Freda, was given the plaintiff. And the court being of the opinion that the interest of defendant in said house and lot was a reasonable amount for her alimony and the support and maintenance of said infant, it was further decreed that plaintiff have conveyed to her as permanent alimony said one fourth undivided interest in fee simple; and on January 7, 1908, as the record shows, a deed therefor was made, executed and delivered to plaintiff by a commissioner appointed for that purpose.
On April 25, 1908, at a special term of the circuit court defendant appeared openly, and on his petition, subsequently amended, and bond for costs filed, as provided by section 14 Ch. 124, and section 25, Ch. 106, Code 1906, the cause was reinstated on the docket, and petitioner permitted to make defense.
On December 30, 1908, the cause was brought on again to be heard on the papers and proceedings filed at the date of the original decree, and upon the answer and cross-bill of defendant, depositions and proofs taken, the demurrer of plaintiff to said answer and cross-bill, previously overruled, the demurrer of Thomas Coleman thereto, previously sustained, but amended as to him and not demurred to as amended, and the court being of opinion that defendant was not entitled to the relief prayed for in his answer, it was thereupon again adjudged, ordered and decreed, in accordance with section 26, Ch. 106, Code 1906, that the prayer of defendant's cross-bill answer be denied, and that the decree entered in said cause, December 20, 1907, be ratified and confirmed, and that plaintiff and Thomas Coleman recover of defendant and John F. Laird, surety, their costs.
It is from the decree of December 30, 1908, so ratifying and confirming the original decree of December 20, 1907, that this appeal is prosecuted.
Three questions are presented for decision: First, was plaintiff, on the record as finally presented, entitled to a divorce from bed and board? Second, and if divorce was properly decreed did the court err in decreeing that the interest of defendant in said house and lot be conveyed to plaintiff as permanent alimony? And, third, if plaintiff was not entitled to the relief prayed for and decreed her, was defendant in his cross-bill answer entitled to a decree of divorce from bed and board as prayed for therein? Of course if we affirm the first proposition, we would necessarily negative the third, for both parties could not be entitled to a divorce. Wass v. Wass, 41 W.Va. 126, 23 S.E. 537.
Defendant denies the charge of willful abandonment. He does not deny that he absented himself from home at or about the times charged in the bill, but alleges as good cause therefor, cruel and inhuman treatment by plaintiff. The acts and conduct of plaintiff mainly relied on are, that in December, 1903, on going to his home, plaintiff assaulted him without cause, with a pair of scissors, and ordered him away; that in 1904, on returning home, she refused him a bed, and all marital rights; also prior neglect to visit him in the hospital, and to administer to his wants and necessities in time of sickness, and other causes, all of which are relied on and charged against her in his cross-bill answer as ground for affirmative relief.
The record shows that these parties were married in 1874; that three children were born to them, the oldest now about thirty years, and the youngest about ten years of age; that almost from the beginning their relations became strained, and have so continued to the present; that at one time after the birth of the first child, plaintiff absented herself from defendant, leaving the child, and was gone for several months, her excuse given being that nothing was furnished her to eat; that on several occasions defendant absented himself and was gone out of the state for months, the last time, before the institution of this suit, for about a year; that he had not cohabited with plaintiff since December, 1903, but continued to provide for her, to some extent at least, until he left the state in December, 1906, and thereafter ceased to make any provision for the maintenance of his wife or infant daughter.
To establish her right to the decree the burden was upon the plaintiff to show wilful desertion or abandonment of her by defendant, without justifiable cause, and the evidence thereof must be full and clear. Tillis v. Tillis, 55 W.Va. 198, 46 S.E. 926; Burk v. Burk, 21 W.Va. 445; Bailey v. Bailey, 21 Grat. (Va.) 43; Carr v. Carr, 22 Grat. (Va.) 168. Desertion can not be inferred from the fact that the parties do not live together. Burk v. Burk and Bailey v. Bailey, supra. Defendant does not deny, but admits, absence from, but alleged continued support of defendant and daughter after December, 1903, and absence without support since August, 1906. Justifiable cause which will excuse a husband or wife from leaving the other must be such as could be made the foundation of a judicial proceeding for divorce a mensa et thoro. Alkire v. Alkire, 33 W.Va. 517, 11 S.E. 11; Martin v. Martin, 33 W.Va. 695, 11 S.E. 12; Carr v. Carr, 22 Grat. (Va.) 168; Harris v. Harris, 31 Grat. (Va.) 13. But the conduct of one party to justify the other in leaving must be of such a nature as to be inconsistent with the marital relation, or to render cohabitation unsafe. Keezer on Marriage and Divorce, § 142, and cases cited in note. The question then remains, was his desertion or abandonment justifiable in law, so as to deprive plaintiff of the right to a decree of divorce?
The first and foremost fact relied on by defendant is that in December, 1903, when he went to his home, or the place where his wife and child resided, she assaulted him, without cause with a pair of scissors, and ordered him to get out. There were three witnesses to this transaction, the plaintiff, the defendant, and a nearby neighbor. This is a very important factor in the case, for here is where the final breaking off of all marriage relations appears to have begun. Referring to this time, defendant says: He further testified his belief that she would have struck him with the scissors if he had not backed out; that he never afterwards returned to his wife's home to live; that he was unable thereafter to live or cohabit with her, because she was quarrelsome and abusive every time he went home; that she was a woman of very high temper, and when she exhibited her temper towards him, he would try to reason with her, and he would sometimes tell her that was no way for her to act, and would walk away and leave her. M. G. Neale, a neighbor, who witnessed, in part, the occurrence in December, 1903, testified that he walked out on the front porch and...
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