Rosenberg v. Rosenberg

• Decision Date: 16 June 1969
• Citation: 210 Va. 44,168 S.E.2d 251
• Parties: Malcolm Maurice ROSENBERG v. Ruthe Shelia Falk ROSENBERG.
• Court: Virginia Supreme Court

Page 251

168 S.E.2d 251

210 Va. 44

Malcolm Maurice ROSENBERG v. Ruthe Shelia Falk ROSENBERG.

Supreme Court of Appeals of Virginia.

June 16, 1969.

William Rosenberger, Jr., Lynchburg, for appellant.

Arthur E. Smith, Roanoke, for appellee.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

SNEAD, Justice.

Malcolm Maurice Rosenberg, complainant, appeals from an adverse decree which, among other things, awarded his wife, Ruthe Shelia Falk Rosenberg, defendant, a divorce A vincula matrimonii and custody of their children.

The parties were married in Roanoke on July 5, 1952. A daughter, age 15, and two sons, age 13 and 11, were born of this union. Resonberg and his cousin operated a cap and gown rental business and also a laundry-dry cleaning establishment in Roanoke. The latter was a financial failure and left Rosenberg contingently liable for a substantial sum. Rosenberg became emotionally upset and marital difficulties developed which resulted in a separation of the parties. In the view we take of the case it is not necessary to state other evidence adduced.

On August 12, 1966 Rosenberg filed a bill of complaint against his wife seeking a divorce on the ground that she had constructively deserted him on November 12, 1965. Mrs. Rosenberg filed an answer in which she denied the allegations in the bill of complaint, alleged co-habitation as man and wife after November 12, 1965, and that complainant 'wilfully and intentionally deserted and abandoned' her and the children 'subsequent to June 22, 1966'. On September 19, 1966 Mrs. Rosenberg filed a cross-bill praying for a decree of divorce A mensa et thoro to be subsequently merged into a decree of divorce A vinculo matrimonii on the ground of desertion 'on or about the 2nd day of August, 1966'. She also requested alimony and an allowance for the support of the children. In his answer to the cross-bill filed on November 4, 1966, complainant denied the charge of desertion and asked for custody of the three children.

By agreement of the parties, the court referred the cause to one of its commissioners in chancery who was directed to report to the court his findings and recommendations within a reasonable time. In due course the commissioner heard evidence presented by both parties and on May 26, 1967 filed his report along with the evidence taken and various exhibits filed. The commissioner recommended, among other things, that complainant's bill be dismissed; that Mrs. Rosenberg be granted a divorce A mensa et thoro on her cross-bill; that the custody of the children be awarded to the mother with certain visitation rights to the father, and that Rosenberg pay to Mrs. Rosenberg $630 per month as alimony and $450 per month for the support and maintenance of the three children.

Rosenberg filed exceptions of the commissioner's report and the chancellor fixed July 28, 1967 as the date for a hearing on the exceptions. On that date Rosenberg orally requested leave to file an amended and supplemental bill of complaint for a divorce on the ground of adultery alleged to have occurred on July 22, 1967. The hearing was continued and on August 7 Rosenberg filed a written motion for leave to file an amended and supplemental bill. Argument was set for October 10. On that date the cause came on to be heard on the pleadings, the depositions and exhibits, the commissioner's report and the exceptions thereto and the written motion with a copy of the amended and supplemental bill attached.

The amended and supplemental bill alleged, among other things, 'That the defendant has had illicit sexual intercourse with * * * (a named man) at various times and places, and the last time, known to the complainant, at Room 617 of the Howard Johnson Motor Lodge, 4000 Alton Road, Miami Reach, Florida between the hours of 8:30 A.M. and 7:05 P.M. on Saturday, July 22, 1967'. Complainant prayed for a divorce A vinculo matrimonii and for custody of the children.

By its decree entered October 30, 1967, the court denied Rosenberg's motion to file the amended and supplemental bill stating '* * * that the motion was not well taken, as it was not timely made and attempted to set forth matters subsequent to the original bill and not supplemental thereto, * * *'. The decree also granted Mrs. Rosenberg a divorce on her cross-bill. It contained substantially the same provisions recommended by the commissioner.

In his assignments of error, complainant contends that the chancellor erred (1) in refusing to grant him a divorce; (2) in granting defendant a divorce and custody of the children; (3) in awarding defendant alimony and support money for the children; (4) in overruling certain exceptions to the commissioner's report, and (5) in refusing to permit him to file his amended and supplemental bill of complaint. He further contends that the decree appealed from 'is contrary to the law and the evidence and without evidence to support it'.

The crucial question presented for decision is whether the trial court erred in refusing to permit Rosenberg to file his amended and supplemental bill.

In deciding this question we must determine whether the amended and supplemental bill constituted a different and separate cause of action setting forth new matter unrelated to the original bill, and what is the effect of the fact that the alleged adultery occurred subsequent to the filing of the original bill.

There is no question of complainant's diligence. He sought leave to file his amended and supplemental bill six days after the specific act of adultery was alleged to have occurred.

'(S)upplemental bills will not be allowed for the purpose of introducing a completely new case.' Keyser v. Renner, 87 Va. 249, 251, 12 S.E. 406.

It is contended by Rosenberg that the amended and supplemental bill does not state 'any new or additional cause of action,...