Upchurch v. Upchurch

• Decision Date: 08 June 1953
• Citation: 76 S.E.2d 170,194 Va. 990
• Court: Virginia Supreme Court
• Parties: MARGARET LYON UPCHURCH v. ROY W. UPCHURCH

Page 170

76 S.E.2d 170

194 Va. 990

MARGARET LYON UPCHURCH v. ROY W. UPCHURCH.

Supreme Court of Appeals of Virginia

June 8, 1953.

Horace G. Bass, George E. Bendall, Victor S. Bryant, for appellant.

Meade, Talbott & Tate, for appellee.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

On February 21, 1952, Roy W. Upchurch, hereinafter referred to as the plaintiff, filed a bill in which he charged his wife with cruelty, and with wilful desertion on February 16, 1952. He prayed for a divorce a mensa et thoro. His wife, Margaret Lyon Upchurch, filed an answer and cross-bill. In her answer she denied the charges of cruelty and desertion, and in her cross-bill charged the plaintiff with cruelty and with requesting her to indulge in acts of sexual perversion. She prayed support for herself and their infant children; but did not ask for a divorce. The plaintiff answered the cross-bill denying each allegation therein. The evidence was heard ore tenus, and on May 3, 1952, the court entered a decree awarding plaintiff a divorce a mensa et thoro on the ground of cruelty, and denying the defendant the right to separate maintenance or alimony. The custody of their two infant children was awarded to the defendant, and the plaintiff directed to pay her $300.00 per month for each of them for their support, maintenance and education until they should respectively reach the age of twenty-one years, or until the further order of the court.

On May 23, 1952, defendant filed a petition for a rehearing on the ground of newly discovered evidence, consisting of various love letters written by the plaintiff to his secretary, a married woman; and of certain bank records which contradicted plaintiff's testimony as to money received by the defendant on behalf of plaintiff while he was in the military service. The rehearing was promptly denied.

Mrs. Upchurch, on this appeal, assigns as error the granting of the divorce to the plaintiff; the refusal of the court to award her separate maintenance or alimony; and the further refusal of the court to grant her the requested rehearing.

The plaintiff is a physician of standing and prominence in the City of Danville, Virginia, where he specializes in the field of urology. He is fifty years old, and was educataed at the University of North Carolina, the University of Virginia, and Columbia University in New York City. The defendant is the former Margaret Lyon of North Carolina. She is forty-seven years old, and was educated at Queen's College and Duke University, both in North Carolina. She has taken an active interest in civic and religious work, especially in the Young Women's Christian Association.

Plaintiff and defendant were married in Richmond, Virginia, on October 4, 1927. They have three children, namely, Mary Susan, Margaret Ann, and Roy W. Upchurch, Jr., now respectively twenty-three, twenty-one and eighteen years of age. They lived in the home of defendant's father in Durham, North Carolina, for a little more than two years after their marriage, and then moved to Danville about January, 1930. They lived continuously together in Danville until this suit was brought. There the plaintiff practiced his profession, except for the period between May, 1942, and December, 1945, when he served in the United States Navy. Plaintiff was successful in his practice. His federal income tax returns for the years 1946-1951, inclusive, showed that he had an average annual gross income each year of more than $56,000, and an average net annual income of about $35,000.

As plaintiff's income increased, the standard of living of his family did also. Prior to the year 1940, he bought a valuable residence which he extensively remodeled. It has twenty-two rooms, seven baths, and ten telephones, with a telephone connection in every room. He gave his wife a spending allowance of as much as $350.00 per month, which he reduced to $300.00, then to $200.00 and finally to $100.00 about 1951-1952. Each child had a spending allowance of $5.00 per week. Susie, the oldest child, was allowed $100.00 per month in 1950 and 1951, when she was a student at the University of North Carolina. He provided his family with five automobiles, -- a 1952 Cadillac for himself, a 1950 Cadillac for his wife, a 1951 Oldsmobile for Susie, a Jeepster for Peggy, and a 1947 Cadillac for Roy, Jr.

Plaintiff testified that his household expenses were $24,000.00 in 1950 and $20,000.00 in 1951. He paid $30.00 per week to his housemaid and $35.00 to his yard man. He carries life insurance of $159,500.00, including $250.00 per month disability provisions, upon which he pays premiums amounting to $4,000.00 a year. In 1950, he and his wife made a pledge to contribute $36,500.00 to the Memorial Hospital Building Fund in Danville, upon which he paid $21,500.00 in 1951. Payment was made in part from funds inherited from his father's estate, and in part by the transfer of certain real property of the plaintiff.

The evidence in this case is voluminous, and in sharp conflict upon most material matters. It shows a deplorable state of domestic discord and unhappiness between the parties during most of their married life, and especially since his return from military service, despite his financial success and their high standard of living. Fortunately, cases of this kind are somewhat rare. When they arise they give us much concern, not only on account of the consequences to the parties themselves and their families, but because of their effect upon the public. In this case there are topics of indelicacy in the private and confidential relations of the parties, to which we hesitate to allude, and to which we refer only where it is necessary. These matters already have been exposed to public scrutiny and criticism, and it will serve no useful purpose to recite them here in detail.

Plaintiff's evidence was furnished by him, his stepmother, Mrs. W. H. Upchurch, who rarely visited his home, and doctors who testified as to his physical condition. Plaintiff testified that his wife was extravagant, overspending large allowances provided by him for her and their children, especially during his absence in military service; that she borrowed money from others without his consent; that she disregarded his personal and professional welfare; that she abused and threatened him, and actually struck him on several occasions; and that this caused him worry and anxiety, which affected both his health and his professional welfare.

Specifically, he said that she borrowed money from a bank, from grocery stores which she patronized, and from members of her family; that she did not exercise proper discipline over their children; that she belittled his professional ability; that she called him 'a son of a bitch,' in the presence of his stepmother; that she repeatedly said she 'would fix him;' that she struck him on the shoulder and neck with her pocketbook; that she threw her automobile keys at him, striking him in his mouth; that on one occasion she threatened him with a pistol; and that in the presence of one of the children she slapped him on the side of his face. He further said that when he insisted that she cooperate with him relative to money matters, she would tell him nothing and go away; and that she was addicted to the use of narcotic drugs. He accused her of further conduct and acts tending to annoy and provoke him. He denied all charges of sexual perversion. Finally, he claimed that she deserted and abandoned him, without cause, on February 16, 1952, five days before he brought suit.

According to the evidence, plaintiff is a professional expert in his field. He drives himself hard, and on account of a feeling of insecurity works under considerable pressure and tension. Dr. Howard R. Masters, a neurologist and psychiatrist, testified that he had treated him several times. He saw him in 1938, 1939, 1940 and 1950. He found that plaintiff suffered from 'spells of lassitude or depression.' In 1948, plaintiff was admitted to a hospital in an unexplained stupor. When he regained consciousness, about twenty-four to forty-eight hours later, he said that he had been suffering from depression and insomnia, and when his insomnia became very bad he had taken an hypnotic capsule. In 1950, he was depressed, confused and had hallucinations. Plaintiff was worried about another urologist locating in Danville, and feared he might lose some practice to the newcomer.

Dr. Masters said that in observing the plaintiff, questioning him, and checking up on his history, he had come to the conclusion that he has 'an emotional makeup of hereditary origin and is predisposed in the face of adversity to morning depression, to dread the day ahead. * * * His tension represents a state of fear, of insecurity, especially as related to the economic welfare of his family and of his personal, present and future security. Ever since his boyhood he has had an undersecretion of his pituitary gland which has accounted for his obesity or overweight and for his lassitude. This fact, plus his excessive output of work, contributes to his nighttime fatigue and to his insomnia.'

In conclusion, it was Dr. Masters' opinion that 'any situation or state of affairs which may threaten the doctor's economic security or person and professional welfare primarily, and the security and economic welfare of his family secondarily, will precipitate a depressed state.'

Dr. F. H. McGovern, an eye specialist, testified that cataracts had begun to form on both of plaintiff's eyes; that they must eventually be removed; and that plaintiff was conscious of the impairment of his vision and anxious and disturbed over his condition.

Dr. Ralph R. Landis, a neurologist, said that he had treated plaintiff for sometime for prostate gland trouble, a trouble which had grown progressively worse and which will eventually require an operation, and that he was also suffering from Peyronie's disease, a disease...