Roberts v. Roberts

• Decision Date: 19 May 1925
• Docket Number: (No. C. C. 337.)
• Citation: 128 S.E. 144
• Court: West Virginia Supreme Court
• Parties: ROBERTS. v. ROBERTS.

128 S.E. 144

ROBERTS.

v.ROBERTS.

(No. C. C. 337.)

Supreme Court of Appeals of West Virginia.

May 19, 1925.

(Syllabus by the Court.)

Certified Questions form Circuit Court, Marshall County.

Suit by Gladys Webster Roberts against Bayard McClean Roberts for divorce, in which defendant filed an answer in the nature of a cross-bill. After overruling the motion to dismiss the answer and demurrer thereto to the court certifies questions under Code, c. 135, § 1. Rulings affirmed.

Chas. A. Showacre, of Moundsville, for defendant.

LITZ, J. The plaintiff, Gladys Webster Roberts, filed her bill at February rules, 1921, alleging cruelty, desertion, and adultery on the part of defendant, Bayard McClean Roberts, and praying for an absolute divorce, alimony, and the custody of their infant child. Nothing further was done in the suit until January 10, 1924, when the defendant filed his answer in the nature of a cross-bill, denying the charges contained in the bill, charging the plaintiff with having committed adultery since the institution of the suit, and praying for an absolute divorce and custody of the child.

October 3, 1924, a motion to dismiss the answer and demurrer thereto were overruled, and, upon the joint application of the parties, the following questions were certified, under section 1, c. 135, Code: (1) "Whether process was required on the answer and cross-bill." (2) Whether the defendant may take advantage of the alleged adultery of plaintiff, committed since the, institution of the suit, as a ground for affirmative relief.

The record as presented, showing the appearance of plaintiff to the answer and crossbill, the first question, if proper upon certificate, need not be considered.

On the second question, we are of opinion that the circuit court ruled properly in holding that the answer set up proper ground for affirmative relief. In Martin v. Martin, 33 W. Va. 695, 11 S. E. 12, an absolute divorce was granted defendant on the ground of three years willful desertion, which matured during the pendency of the suit.

"Any misconduct which is a cause for either an absolute or limited divorce may be set up as a counterclaim or alleged in a cross-complaint as a ground for affirmative relief, although it occurred after the institution of the suit." 19 C. J. 117; Wilson v. Wilson, 40 Iowa, 230; Ned-do v. Neddo, 56 Kan. 507, 44 P. 1; 9 R. C. L. 423.

In Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487, 74 A. 700, 139 Am. St. Rep. 784, citing our case of Martin v. Martin, supra, it is stated:

"The obvious reason [for the rule] is that it is absurd that the defendant should be...