White v. White

• Decision Date: 14 June 1917
• Citation: 92 S.E. 811
• Court: Virginia Supreme Court
• Parties: WHITE. v. WHITE.

(121 Va. 244)

92 S.E. 811

WHITE.

v.WHITE.

Supreme Court of Appeals of Virginia.

June 14, 1917.

Law and Equity Court of City of Richmond.

Action by Forest White against Mildred Ann White for divorce. Decree for plaintiff,, and defendant appeals. Affirmed.

Isaac Diggs, of Richmond, for appellant.

Stuart G. Christian, of Richmond, for appellee.

KELLY, J. This is an appeal from a decree granting to Forest White an absolute divorce from his wife, Mildred Ann White.

The bill presented the complainant's case in a double aspect, first upon an allegation of cruelty, praying for a divorce a mensa et thoro, and, second, upon an allegation of adultery, praying for a divorce a vinculo matrimonii.

There was a demurrer to the bill, which the court overruled. So far as this demurrer pertained to the charge of cruelty, it requires no consideration, as that branch of the case is not before us. The allegations charging adultery were sufficient, and the demurrer in this respect was properly overruled. The charge of adultery is as follows:

"Your complainant is further advised, and so charges, that on or about June 1st, and for some time previous thereto, his wife, Mily Ann Smith White, has been guilty of infidelity to him, and has committed adultery with a certain man to your complainant unknown, who frequently calls at your complainant's home while complainant is away following his vocation, and has relations with your complainant's wife which are inconsistent with any other presumption except that complainant's wife and the said unknown man have been guilty of acts of adultery.

"Complainant has been advised that his wife and a certain man who, as before stated, is unknown to complainant, retire to their bedroom and remain together for long periods of time, and that complainant's wife commits other acts, all of which tend to strengthen and confirm the belief that she has been guilty of infidelity to complainant."

This was a sufficient compliance with the rule that the time, place, and circumstances should be averred with reasonable certainty. The allegations conform to the rule approved in this state and elsewhere generally. Miller v. Miller, 92 Va. 196, 199, 23 S. E. 232; Bishop on Marriage and Divorce (8th Ed.) § 606; 14 Cyc. 665; 9 R. C. L. p. 418, §§ 219, 220.

The next error assigned is that the court erred in reading the deposition of the complainant, Forest White, whose testimony in his own behalf was taken and filed in the cause over the objection of the defendant

It is conceded that this witness would have been competent if the suit had been based solely on the charge of cruelty, but the contention here made is that he was not competent to testify upon the charge of adultery, and that, being incompetent for one purpose, he was incompetent for all purposes. The question is immaterial. The deposition in question, with one exception to be presently mentioned, dealt entirely with the charge of cruelty, and the decree complained of was based solely on the charge of adultery. The only particular in which the testimony of this witness related to the latter charge was his statement that he had not had anything to do with his wife since he learned of her infidelity. This statement, which tended to negative condonation, may be disregarded without affecting the correctness of the decree. Condonation is a matter of specific affirmative defense which must be specially pleaded, and the burden of proof is upon the defendant. 9 R. C. L. p. 346; 7 Enc. PI. & Pr. 91; 14 Cyc. 682; Ann. Cas. 1912C, note, pp. 22, 26. The court may upon its own motion deny a divorce, even in the absence of any pleading setting up the defense, if it appears from the record that the injured party has condoned the acts complained of; but this eminently proper rule cannot be successfully involved in the present case, where the defense is neither pleaded nor proved. It is true that the defendant in her answer says:

"Her said husband has resided at his home, 914 St John street, and she and her said husband have lived and cohabited together as man and wife until Monday, June 26th, three days after he had instituted his suit against her."

But, taking her answer as a whole, and in the face of her indignant and emphatic denial of the charge, she cannot, after her adultery...