Roush v. Roush

Decision Date14 March 1922
Docket Number4291.
Citation111 S.E. 334,90 W.Va. 491
PartiesROUSH v. ROUSH.
CourtWest Virginia Supreme Court

Submitted March 7, 1922.

Syllabus by the Court.

False charges of adultery made by the wife against the husband ordinarily will not be deemed cruel or inhuman treatment within the meaning of section 6, chapter 64, of the Code 1913 (sec. 3641), entitling the husband to a divorce from bed and board.

Nor is denial of sexual intercourse cruel or inhuman treatment within the meaning of the statute.

Where a decree awards a divorce to the husband and alimony to the wife, and it appears that they are living separate and apart this court, in reversing the decree as to the divorce, will enter a decree providing for the payment of the alimony as for the wife's maintenance, upon a prayer therefor in her answer, and will remand the cause for the execution thereof.

Appeal from Circuit Court, Tucker County.

Action by Homer Roush against Rosa Roush for divorce. Judgment for plaintiff for divorce from bed and board, and awarding him the custody of their four children, and awarding the defendant $25 per month alimony, and she appeals. Reversed and remanded, for execution of decree entered in the Supreme Court for alimony as for wife's maintenance.

W. K. Pritt, of Parsons, for appellant.

D. E Cuppett, of Thomas, for appellee.

MEREDITH J.

Defendant complains of a decree granting her plaintiff husband a divorce from bed and board, awarding him the custody of their four children, and by which decree she was awarded alimony of $25 per month.

This suit is based on the legal charge of cruel or inhuman treatment; numerous acts are alleged, but the two relied on by the husband are: (1) False charges by the wife of the plaintiff's adultery; and (2) denial of sexual intercourse. All allegations are denied by the wife's answer, except the one charging the plaintiff with adultery; this is admitted and reiterated in her answer.

The suit is brought under section 6, chapter 64, of the Code (sec. 3641):

"A divorce from bed and board may be granted for cruel or inhuman treatment, reasonable apprehension of bodily hurt, abandonment, desertion, or where either party after marriage becomes a habitual drunkard. A charge of prostitution made by the husband against the wife falsely, shall be deemed cruel treatment, within the meaning of this section."

It will be observed that the terms used in the statute are not defined. It does not say what shall be "cruel or inhuman" treatment, except in the one instance--"a charge of prostitution made by the husband against the wife falsely." It does not even say that a false charge of adultery made by the husband against the wife is cruel or inhuman treatment, but it uses the word "prostitution," a very different word. We do not mean to say that such a charge, when made against the wife, would, under no circumstances, be considered cruel treatment, but it is significant that the term "prostitution" is used, and not the term "adultery." We think that this statute, which in general terms enumerates grounds on which a divorce from bed and board may be granted, and, in the one instance, points out one specific act on the part of the husband toward the wife, which shall be deemed cruel treatment, and omits saying that repeated charges of adultery, falsely made against the husband by the wife, shall also be considered cruel treatment, inferentially, at least, negatives the idea that such false charges against the husband shall be deemed cruel treatment.

For obvious reasons a charge of adultery against the wife ordinarily is much graver than the same charge against the husband; and, if such charge is falsely made by the husband, and especially so if it is malicious and unfounded, and tends to cause the wife great mental distress and to undermine her health, it is ground for divorce. But it should take much stronger proof where the husband sues on this ground. Such a charge would affect different men differently. A gay Lothario would feel complimented; while a sensitive man of high position, good character and reputation might be subjected to great mental suffering, far beyond that which such a charge would naturally have upon the average man. But in the present case we do not think plaintiff has shown that he has been so affected. The charge does not seem to have disturbed his standing among his neighbors and friends, nor can we say that the evidence shows that he has been caused such mental distress as would tend to undermine his health. In the case of Maxwell v. Maxwell, 69 W.Va. 414, 71 S.E. 571, it was held that, in a suit for divorce from bed and board, based on cruel or inhuman treatment, the true issue and test is whether, under all the facts proven, plaintiff can, with safety to person and health, continue to live with defendant. And in the case of Goff v. Goff, 60 W.Va. 9, 53 S.E. 769, 9 Ann.Cas. 1083, it was held that such treatment of the wife by the husband as produces reasonable apprehension of personal violence, or produces mental anguish, distress, and sorrow, and renders cohabitation miserable, impairing, or likely to impair, the wife's health or mind, is cruel and inhuman treatment under the statute. But the proof in the present case in no sense comes up to this standard. We think, so far as this charge is concerned, the plaintiff can, with perfect safety to himself, continue to live with his wife.

There is nothing whatever in plaintiff's second alleged ground denial of sexual intercourse; he not only failed in his proof, and even had that not been the case, under the circumstances shown, he would not be entitled to a divorce. The record shows that, when the suit was instituted and for three months thereafter, the parties lived together, ate at the same table, slept under the same roof and in the same bed. Not until plaintiff's attention was called to this inconsistent and...

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