Rohrbaugh v. Rohrbaugh

• Decision Date: 18 December 1951
• Docket Number: No. 10326,10326
• Citation: 68 S.E.2d 361,136 W.Va. 708
• Court: West Virginia Supreme Court
• Parties: ROHRBAUGH, v. ROHRBAUGH.

Page 361

68 S.E.2d 361

136 W.Va. 708

ROHRBAUGH, v. ROHRBAUGH.

No. 10326.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1951.

Decided Dec. 18, 1951.

Syllabus by the Court.

1. 'When a case is tried by a court in lieu of a jury, it is not an error, for which the appellate court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment.' Point 1, Syllabus, Abrahams v. Swann, 18 W.Va. 274.

2. The doctrine that one who seeks relief in a court of equity must come with clean hands applies to a suit for divorce; but that doctrine does not operate as a defense against a party who establishes the ground on which he bases his right to a divorce against the party who invokes such doctrine, when it appears that the conduct of the party establishing such ground of divorce did not itself constitute a ground for divorce and was not responsible in any substantial degree for the guilt of the party who invokes such doctrine.

3. When adultery is relied upon as a ground for divorce, evidence which is sufficiently strong, clear and convincing to carry conviction of guilt to the judicial mind will warrant a decree of divorce on that ground.

4. The rule that the findings of a trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence, operates and controls in suits for divorce.

5. When a husband and a wife are divorced because of the marital misconduct of one of them the law generally favors the award of custody of the children to the innocent spouse.

Vernon E. Rankin, Keyser, for appellant.

H. R. Athey, Keyser, for appellee.

HAYMOND, Judge.

This suit in equity was instituted in the Circuit Court of Mineral County on October 15, 1948, by the plaintiff, Dorothy R. Rohrbaugh, to obtain a divorce from her husband, the defendant, Claude R. Rohrbaugh, on the ground of cruel or inhuman treatment.

Upon the bill of complaint of the plaintiff and upon her motion for alimony and attorney fees, pursuant to notice, the circuit court by decree entered October 28, 1948, required the defendant to support and maintain the plaintiff and her two small children in the home in which the plaintiff and the defendant were then living, directed the defendant to occupy a separate bedroom from that occupied by the plaintiff, enjoined the defendant from entering the bedroom of the plaintiff and from molesting her in any way, provided that the foregoing conditions of the decree should continue until changed upon the subsequent motion of the plaintiff, and ordered the defendant to pay a fee of $100 to the attorney for the plaintiff and $36.50 costs on or before January 15, 1949. The defendant filed an answer to the bill of complaint on January 14, 1949, and on February 17, 1949, after hearing the testimony of several witnesses, upon a second motion of the plaintiff for support and maintenance for herself and her two infant children, the court required the defendant to pay the plaintiff, who had moved from the home of the defendant, $100 per month for such support and maintenance. By a decree entered in vacation on March 7, 1949, the defendant was given the custody of the two children of the plaintiff and the defendant and the amount awarded the plaintiff for her support and maintenance was reduced to $40 per month.

On March 15, 1949, the defendant filed his supplemental answer and cross bill, in which he prayed for a divorce from the plaintiff upon the grounds of adultery and cruel or inhuman treatment. After the entry of the order of March 7, 1949, the plaintiff returned to the home of the defendant, and later, on motion of the defendant, by a decree entered in vacation on March 26, 1949, she was required to move from his home. After having heard the testimony of a number of witnesses in connection with the various motions of the parties, and after the plaintiff had filed her reply to the answer and the supplemental answer and cross bill of the defendant, the court by decree entered July 28, 1949, referred the cause to a commissioner in chancery, who heard additional testimony offered by the parties and filed his report on October 24, 1949. The findings of the commissioner, among others, were that the plaintiff was not entitled to a divorce, and that the defendant was entitled to a divorce and should be awarded the custody of the children. Exceptions filed by the plaintiff to the report of the commissioner were overruled and by final decree, entered January 21, 1950, the divorce prayed for by the plaintiff in her bill of complaint was denied and the defendant was granted a divorce from the plaintiff and awarded the permanent custody of the two infant children of the plaintiff and the defendant. From that decree this appeal was granted by this Court upon the petition of the plaintiff.

After the plaintiff and the defendant were married in Winchester, Virginia, in November, 1945, they returned to the home of the defendant at Wiley Ford in Mineral County. At the time of the institution of this suit the plaintiff, who had been previously married, was about twenty two years of age and the defendant, a widower and the father of two children by his first wife, who died in 1943, was about forty five years of age. Prior to their marriage the plaintiff lived at the home of the defendant, as his housekeeper, after the death of his first wife. While the plaintiff was living at the home of the defendant she became pregnant by the defendant, and during her pregnancy their marriage occurred. Two children, both boys, were born of the marriage. The first child was born on May 5, 1946, and the second on November 19, 1947. After the birth of the first child differences arose between the plaintiff and the defendant and in September, 1948, they ceased to cohabit as husband and wife although the plaintiff remained at the home of the defendant until some time in January, 1949, when she went to the home of a Mrs. Rader who also lived in Wiley Ford. The plaintiff continued to live there until some time in February, 1949, when she returned to the home of the defendant where she stayed until she was required to leave by the order entered in vacation on March 26, 1949, and since that time she has not lived at that place.

After the birth of the first child, in May, 1946, the plaintiff and the defendant engaged in frequent quarrels over financial and other matters. She complained that he did not give her sufficient money for clothes and household necessities. He accused her of extravagance and of frequent association and improper conduct with other men. He admits that during their quarrels, in which he says she called him vile names, he cursed he and called her vile names but he says that he did so because of her frequent absence from home until late hours at night during which she left her children at home with his two daughters, fourteen and sixteen years of age, or at the home of her acquaintances, and because of her neglect of the children and the home. He also admits that upon occasions he told her that he was not the father of their second child. She testifies that he called her a whore and other vile names and that on one occasion in June, 1947, he struck her violently and loosened two or three of her teeth and threatened to kill her. The defendant denies that he threatened or struck the plaintiff at any time but says that she continually begged him to strike her for the purpose of causing him trouble. Despite these quarrels, however, the parties continued to have marital relations until some time in September, 1948.

The evidence shows that the defendant, who is employed by the Western Maryland Railroad Company, earns approximately $300 to $325 per month; that he is not extravagant; that he owns an automobile and the home in which the plaintiff and the defendant lived before their separation which he valued at $3,500; that the plaintiff wasted much of the money which the defendant gave her for living expenses; and that she incurred various store bills beyond his ability to pay them until he stopped her credit at those places. The evidence also shows, and she admits, that she was away from home as many as fifteen nights during the month of December, 1948, and that on some of those occasions she spent some time at night at bowling alleys and places of recreation where drinks were served. The plaintiff was seen by several witnesses in the company of different men at night while riding by automobile or while at the homes of other persons. One witness, an unmarried young man, testified that, not knowing at the time that the plaintiff was married, he rode with her in his automobile late at night and on that occasion she permitted him to feel her breasts but that she refused to engage in sexual intercourse with him. The plaintiff admits that she was with the witness in his automobile but denies that she engaged in the conduct to which he testified. She admitted that, on another occasion while walking along a street with an unmarried man named Kirtley, a bookmaker who lived in Cumberland, Maryland, with whom she was seen by different persons at different times and to whom she talked by telephone frequently, he held her arm but that she permitted him to do so because the street was slippery from snow and ice.

In February or March, 1949, the defendant was informed that the plaintiff and Kirtley had been found alone together at night in December, 1948, on a couch in the home of another married couple in Cumberland, and in March, 1949, the defendant filed his supplemental answer and cross bill in which he prayed for a divorce from the plaintiff on the grounds of adultery and cruel or inhuman treatment. As to the conduct of the plaintiff and Kirtley on that occasion, the husband and the wife who found the plaintiff and Kirtley, their next door neighbor at the time, in their home, and who had known the...