Tarr v. Tarr

• Decision Date: 08 October 1945
• Citation: 35 S.E.2d 401,184 Va. 443
• Parties: TARR. v. TARR.
• Court: Virginia Supreme Court

35 S.E.2d 401

184 Va. 443

TARR.

v.TARR.

Supreme Court of Appeals of Virginia.

Oct. 8, 1945.

Appeal from Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Suit by Bessie Sarah Tarr against Wilmot Theodora Tarr, Jr., to set aside and vacate a decree of divorce. From decree setting aside and vacating the divorce decree, the defendant appeals, and the plaintiff cross-appeals.

Amended, affirmed and remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Robert C. Lyne and Cutchins & Cutchins, all of Richmond, for appellant.

James W. Gordon, Jr., and A. Hamilton Bryan, both of Richmond, for appellee.

HUDGINS, Justice.

Bessie S. Tarr filed her bill in this case against Wilmot T. Tarr, Jr., her husband, alleging that, on July 23, 1942, he had instituted a suit for divorce a vinculo against her on the ground of adultery; that she did not appear and contest the divorce suit, although served with process and notice to take depositions, because her husband had condoned and forgiven all of the offenses alleged against her, had cohabited with her during the pendency of the suit and had led her to believe that the suit for divorce would be withdrawn; and that, during the pendency of the suit and as a result of cohabitation with her husband, complainant had conceived and, on June 25, 1943, she had given birth to a child; and praying that the decree of divorce be set aside and vacated.

Respondent filed an answer denying most of the pertinent allegations of the bill but admitting that, during the pendency of the divorce suit, he, on September 5, 1942, had one act of intercourse with Bessie Sarah Tarr, which did not result in her pregnancy, and "avers and charges that the said act was not voluntary on the part of this respondent in that it was brought about by complainant's connivance and trickery at a time when this respondent had not fully recovered from the severemental shock and stress occasioned by having learned of the plaintiff's misconduct" with another man.

The trial court entered a decree setting aside and vacating the decree of divorce entered on September 12, 1942, and declaring that Bessie S. Tarr was the lawful wife of Wilmot T. Tarr, Jr., and that the child was the legitimate offspring of that union. From that decree this appeal was allowed.

The conceded facts are that the parties were married on March 13, 1936, and that they continued to live together until June, 1942, when the wife left the husband for a period of three weeks, after which she returned to his home in Richmond, Virginia. They then lived together until July 18, 1942, when the wife left the husband again and returned to her former home in Hampton, Virginia. Soon after this separation, one Cecil Goode called by the Tarr home and asked for Bessie Tarr. During the conversation with the husband, Cecil Goode informed him that Lynn Butler, who had occupied a room with Goode at a boarding house, had stolen two suits of clothes and other articles from him and that Goode desired to obtain his address from Mrs. Tarr, who he heard had gone to Newport News with Butler. Goode told the husband that Bessie Tarr, on several occasions prior to that time, had had intercourse with Butler. When Mrs. Tarr returned to Richmond, she gave Butler's address to Goode. Cecil Goode and Mr. and Mrs. Tarr drove to Newport News together. Butler was arrested, brought back to Richmond, convicted of the theft of the property and 'sentenced to six months in jail. On the same day, July 23, process and notice to take depositions in the divorce case were served upon Mrs. Tarr.

The public policy of the Commonwealth on the subject is expressed in Michie's Code 1942, sec. 5110. The pertinent provisions are: "When the suit is for divorce for adultery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, * * *."

The gravamen of Mr. Tarr's contention is that one act of intercourse is not voluntary cohabitation within the meaning of section 5110; and that, even if it is, it is a matter of defense in the divorce proceedings, and that, since Mrs. Tarr failed to plead cohabitation or condonation, she is now barred from successfully attacking the decree on that ground in a separate suit.

A similar provision in the West Virginia Code was construed in DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440, 441, where this was said:

"It will thus be observed that voluntary cohabitation of the parties after knowledge of the adultery charged, whether regarded as condonement or not, is a conclusive defense. The literal or derivative meaning of the word 'cohabit' is to live together while its popular and often legal signification is to copulate. The latter interpretation was, in our opinion, intended by the Legislature. King v. United States, 6 Cir., 17 F.2d 61; Burns v. Burns, 60 Ind. 259; Knowles v. Knowles, 6 Boyce, Del., 458, 100 A. 569, 570; Herrman v. Herrman, 93 Misc. 315, 156 N.Y.S. 688, 690. In the last case, the court, upon consideration of a similar act stated: 'No one would be heard to contend for a moment that a husband in an action for absolute divorce should be entitled to a decree where it appeared that he admitted having sexual intercourse with his wife after his discovery of her adultery, and no one has ever had the hardihood to raise the point in such a case that sexual intercourse does not of itself constitute "cohabitation" under' the statute.

" * * * An ancient Anonymous case, reported in 6 Mass. 147, quaintly expresses the rule, when applied to a complaining husband, as follows: 'If therefore a husband, believing his wife's guilt, will afterwards cohabit with her, whether influenced by his compassion or his affections, or induced by her tears, her penitence or her fascinations, he cannot afterwards avail himself of that offense, to obtain a dissolution of the marriage. And he is bound by his remission, although he after repent of his indulgence, from his subsequent reflections, or from the persuasion of his friends, or from the influence of what he may call the public opinion.'"

The general rule is that a single voluntary act of sexual intercourse by the innocent spouse after knowledge of the offense is sufficient to constitute condonation. This rule is applied more stringently against the husband than it is against the wife. Rogers v. Rogers, 67 N.J.Eq. 534, 58 A. 822; Byrne v. Byrne, 93 N.J.Eq. 5, 114 A. 754; Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185; McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243; 27 C.J.S., Divorce, § 61, p. 615.

"Voluntarily cohabited, " as used in the statute, should not be restricted to its literal meaning of having dwelled together under the same roof with more or less permanency.

Ordinarily condonation is a matter of affirmative defense which must be specially pleaded and proven. Martin v. Martin, 166 Va. 109. 184 S.E. 220; White v. White, 121 Va. 244, 92 S.E. 811.

It would be shocking to the moral sense for a court of equity to grant a divorce to parties who, during the pendency of the suit, litigated by day and copulated by night. If the fact of the single act of intercourse admitted by the husband had been brought to the attention of the trial judge, the decree would have been refused with or without a plea of condonation. It follows that, although the evidence in the suit for divorce supported the charge of adultery, Mrs. Tarr had an obsolute defense to the proceedings for divorce. See Holt v. Holt, 64 App.D.C. 280, 77 F.2d 538; Buck v. Buck, 205 Ark. 918, 171 S.W. 2d 939.

The vital question to be determined is whether, in obtaining his decree for divorce, Wilmot T. Tarr, Jr., perpetrated a fraud upon the court and upon his wife.

The testimony of the husband in the divorce suit reveals that his attorney informed him that cohabitation with his wife after knowledge of her acts of adultery would prevent him from obtaining a divorce. While the suit for divorce was pending, Mrs. Tarr returned and spent the night at her husband's home in Richmond, Virginia. Mr. Tarr refused to stay in the house with her and spent the same night at a neighbor's home. He stated his reason for so doing was "because after talking with you (his lawyer) I wanted it certain that I had not lived with her after learning of her conduct with Butler." It thus appears that Mr. Tarr was not only charged with constructive knowledge of the applicable rule of law, but that he had actual knowledge of it. This knowledge did not deter him from subsequently having sexual intercourse with his wife, which fact was not revealed to the court prior to the entry of the divorce decree. It was the duty of the complainant to reveal to the court the true relation existing between him and his wife at the time he asked for the entry of the decree dissolving his marriage.

The numerous visits that the husband made to the wife, the correspondence between the spouses and at least one act of intercourse during the pendency of the divorce suit were sufficient to lead a reasonable woman to believe that the husband would eventually become reconciled to his wife.

These communications between the parties began on July 23, 1942, the day process was served in the divorce suit, and lasted through September 12, the day on which the divorce decree was entered, and thereafter. Mrs. Tarr admitted in her letters that she had "sinned, " declared her love for her husband, begged him to forgive her and permit her to return to him as his wife. Mr. Tarr, in his letters, called his wife "Honey, " stated in several of them that he loved her, that he had forgiven her and that he was praying for Divine guidance as to whether he should become reconciled to her. At Mr. Tarr's request, notice was given to take the depositions of Mr. Goode on August 8 in Richmond. The following extracts are taken from a letter written by Mr. Tarr to his wife, postmarked August 7, 1942:

"Bessie, I still love you but...