Vickers v. Vickers
| Decision Date | 09 January 1924 |
| Docket Number | 4797. |
| Parties | VICKERS v. VICKERS. |
| Court | West Virginia Supreme Court |
Submitted December 4, 1923.
Rehearing Denied March 11, 1924.
Syllabus by the Court.
A wife sues for maintenance. The husband defends on the ground of cruelty. A final decree is entered in her favor. Thereafter the husband brings suit for divorce, alleging that the acts of cruelty complained of in his answer in the suit for maintenance necessitated his leaving her, wherefore she was guilty of desertion. The decree in the maintenance suit is res adjudicata as to the acts of cruelty alleged in his suit for divorce.
To warrant a decree of absolute divorce on the ground of willful desertion or abandonment, or under section 5, chapter 64, Code, the abandonment or desertion must not only be willful, but must be continuous for three full years.
Where the husband leaves the wife, and thereafter, while living separate and apart from her, in good faith, prosecutes a suit for divorce on the ground of cruelty, the period such suit is pending is not to be counted as a part of the three years' willful abandonment or desertion required to give the wife ground for absolute divorce, under section 5 chapter 64, Code, even though he fails in his suit.
Where the husband willfully abandons his wife, and she has brought no suit for divorce from bed and board, and before such abandonment has continued for three full years, so as to entitle her to divorce absolute, the husband may make an unconditional bona fide offer of reconciliation, and thereby bar her right to divorce on the ground of abandonment.
Such offer being made under such circumstances, it is her duty to accept it; and her refusal to do so amounts to "willful desertion" on her part, giving the husband ground for divorce from bed and board.
Appeal from Circuit Court, Cabell County.
Suit by R. E. Vickers against Victoria T. Vickers. From a decree for plaintiff, defendant appeals. Affirmed.
See also, 45 Nev. 274, 199 P. 76, 202 P. 31.
Livezey & McNeer, of Huntington, for appellant.
D. B Daugherty, of Huntington, and Harold A. Ritz, of Charleston for appellee.
MEREDITH P.
The plaintiff husband was decreed a divorce from bed and board; defendant appeals.
It is necessary to review various suits heretofore pending between the parties, which we will do as briefly as possible. The parties separated December 30, 1917, the defendant remaining in the home. On July 11, 1918, the husband brought suit in the Cabell county circuit court for divorce alleging cruelty. Defendant answered, a hearing was had, and on March 25, 1919, the suit was dismissed on plaintiff's motion, but without prejudice. The husband immediately brought another suit in the same court for divorce, but, failing to file his bill, the cause was dismissed at May Rules following.
On May 1, 1919, the wife brought suit in the same court for maintenance, alleging that the husband had abandoned her without just cause about January 1, 1918, and that he had ever since then refused to live with her or support her, except to furnish her a residence and pay the water, gas, telephone, and light bills on the premises. She prayed that he be required to pay her a specific sum per month so long as they should live apart, and certain sums expended by her out of her separate estate for support and maintenance since January 1, 1918. The husband answered her bill, denying the material allegations thereof; averred that he was justified in leaving his wife in December, 1917, on the ground of cruelty. The wife obtained a decree April 15, 1920, for $250 per month for maintenance and for other sums for attorney's fees and expenses. This decree was affirmed by this court on October 18, 1921.
On April 5, 1920, the husband instituted proceedings in the Second judicial district court, in Washoe county, Nev., for a divorce from the defendant, alleging in substance the same matters alleged by him in his answer to her bill for maintenance, filed in the circuit court of Cabell county, W.Va. To his petition she filed answer, pleading the decree of the Cabell county circuit court as a former adjudication of the matters set up in the petition. The Nevada district court decreed in her favor, and this was affirmed by the Supreme Court of that state July 1, 1921. Petition for rehearing was denied December 3, 1921.
On March 7, 1922, the husband brought this suit in the court of domestic relations of Cabell county. In his original and amended bills he alleged that defendant was guilty of cruel and inhuman treatment, so much so that he was compelled to leave his home on December 30, 1917, and she thereby willfully abandoned and deserted him, and still continues to do so; that on January 26, 1922, he made an offer of reconciliation, and requested his wife to return to live with him in apartments provided by him in the city of Huntington, but that she refused to become reconciled and wholly ignored his request.
To this bill the wife by pleas and answer pleaded the decrees entered by the West Virginia courts and the Nevada courts as former adjudications of the issues as to cruelty and the alleged desertion of December 30, 1917; as to the offer of reconciliation made January 26, 1922, she averred it was not made in good faith; and she further averred that the husband willfully abandoned her on December 30, 1917, and his desertion had continued for more than three years thereafter, by reason whereof a right to an absolute divorce had already accrued to her at the time of the alleged offer of reconciliation, wherefore she was justified in law in refusing his request and he was barred of relief.
We therefore have three defenses urged: (1) Res adjudicata by the former decrees. (2 Want of good faith in plaintiff's offer. (3) That defendant's right to absolute divorce because of plaintiff's willful and continuous desertion for three years had become complete, and therefore he could not maintain his suit on the ground that after the lapse of that period she refused to live with him.
1. The wife brought suit for maintenance in the circuit court of Cabell county; to this the husband pleaded her cruelty as a defense. The court found against him on that issue. He also brought suit for divorce in Nevada on the ground of cruelty, setting up the same acts of cruelty alleged in his answer to her bill filed in the Cabell county circuit court. Upon her pleading the former decree, the Nevada court found the husband was concluded by it, saying in point 3 of the syllabus:
"In husband's suit for divorce for cruelty, a prior decision, in a suit in another state by the wife for separate maintenance, that the wife was not guilty of cruelty, was res judicata as to the issue of cruelty, where the identical matters were relied on in both suits to establish the wife's cruelty." Vickers v. Vickers, 45 Nev. 274, 199 P. 76, 202 P. 31.
This is in accord with our holding in Kittle v. Kittle, 86 W.Va. 46, 102 S.E. 799; Purcell v. Purcell, 4 Hen. & M. (Va.) 507. See Lang v. Lang, 70 W.Va. 205, 73 S.E. 716, 38 L.R.A. (N. S.) 950, Ann.Cas. 1913D, 1129. Had she been guilty of cruelty or other offense, sufficient to warrant the court to grant her husband a divorce from bed and board, or from the bonds of matrimony, she could not have maintained her bill for maintenance. This was one of the issues necessarily determined in the maintenance suit. We therefore hold that the present decree cannot be sustained on any alleged acts of cruelty.
2. But this is not decisive of the case. His complaint shows that he made an offer of reconciliation, and that she refused to become reconciled, and to live with him, though it is shown that he had a comfortable home for her in the same city where she resided. Notwithstanding a great deal of recent legislation, the...
To continue reading
Request your trial