Wolfe v. Wolfe

• Decision Date: 28 June 1938
• Docket Number: (No. 8705)
• Citation: 120 W.Va. 389
• Court: West Virginia Supreme Court
• Parties: Bernadine Wolfe v. Russell S. Wolfe

120 W.Va. 389

Bernadine Wolfe

v.Russell S. Wolfe

(No. 8705)

Supreme Court of Appeals of West Virginia.

Submitted May 24, 1938.

Decided June 28, 1938.

1. Divorce

A decree, awarding suit money, attorney's fees and support money, and an order of contempt based upon the failure to comply therewith, entered by the circuit court after an appeal to this court has been perfected, will not support a motion to stay or dismiss the appeal.

2. Divorce

Where a divorce is sought on the ground of cruelty based upon physical violence, provocation by the complaining spouse is material and may prevent the obtaining of relief.

3. Divorce

A false accusation by a wife that her husband has been guilty of adultery is not cruelty within the meaning of Code, 48-2-4, as amended and re-enacted by Chapter 35, Acts of the Legislature, 1935.

4. Divorce

The charge of adultery in a divorce suit must be proven by clear, positive and satisfactory evidence. To warrant such a finding, "the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion * * *." Loveden v. Loveden, 2 Hagg. Const. 1, 31; 161 Eng. Full Reprint, 648.

5. Equity

The findings of a commissioner in chancery are entitled to great weight. They are, however, ''merely advisory to the trial chan- cellor." Fanning, Adm'r. v. Dennis et al., 119 W. Va. 615, 198 S. E, 532.

6. DlVOECE--

A party in a suit for divorce, as in all other equity cases, must come into court with clean hands. Before relief can be obtained, a complaining party's own conduct must be beyond substantial reproach.

Appeal from Circuit Court, Randolph County.

Suit in equity by Bernadine Wolfe against Russell S. Wolfe to obtain an absolute divorce, the custody of the parties' child, and a decree for the support and maintenance of herself and child, wherein the defendant filed a cross-bill seeking a divorce and the custody of the child. From the decree rendered, the defendant appeals.

Reversed and entered.

C. S. Kump and Donald K. Crawford, for appellant. E. L. Maxwell, for appellee.

Riley, Judge:

Bernadine Wolfe brought this suit in equity in the circuit court of Randolph County against Russell S. Wolfe for the purpose of obtaining an absolute divorce, the custody of Lois Elaine Wolfe, aged three, child of their marriage, and a decree for the support and maintenance of herself and child. From a decree granting plaintiff an absolute divorce, the custody of her child, subject to the provision that it be retained in the possession of its maternal grandmother, and directing defendant to pay her $75.00 per month for the support of herself and child, the defendant prosecutes this appeal.

The bill of complaint charges cruel treatment as the only ground for divorce. Generally, it charges that defendant has been "guilty of extreme and repeated cruelty toward the plaintiff in this that he is a man of high temper and used toward the plaintiff obscene and abusive language without any provocation; and has used personal violence toward the plaintiff that she was unable to resist"; and, in particular, that on May 11, 1936, the defendant, without any just provocation, struck the plaintiff many violent blows and so injured her that, at the time of the bringing of this suit, she was confined to her bed under the care of a doctor with her teeth knocked out and loosened and her face beaten, wounded, cut and her foot broken.

The answer denies that defendant committed any acts of cruelty toward the plaintiff. It especially denies the detailed allegations of the assault on May 11, 1936. It admits, however, that he slapped the plaintiff, but "the said blow was not in any way sufficient to cause any injury to the plaintiff"; and that any injuries sustained by plaintiff "were brought about by her own actions in trying to kick, beat and strike the defendant, and by falling down the stairs." By way of cross-bill, the defendant charged plaintiff with desertion, cruelty, habitual drunkenness and adultery, and prayed for a divorce from her and for the care and custody of the infant child. Specifically, the cross-bill charged the plaintiff with being "lovable, affectionate and passionate toward other men", with improper conduct with other men, and with entertaining them in her home and in the homes of others when the defendant was out of town; that plaintiff had left the City of Elkins and gone to Washington, where she had engagements with other men; that on another occasion, she had supposedly made a trip to Washington, but went to New York, where she committed adulterous acts with parties unknown; and that on April 13, 1936, plaintiff, against defendant's expressed wishes, went to Charleston, West Virginia, where she stayed two weeks, having dates with other men and meeting them in their hotel rooms, committing adulterous acts with parties unknown, and traveling about having herself introduced as Miss Bernadine Mason. The cross-bill further charges that on the_______day of June, 1935, in the Ritz-Carlton Hotel at Atlantic City, New Jersey, plaintiff had com- mitted adulterous acts with one Dr. Joseph Mountin. By the final decree, defendant, there being no objection, amended his answer, which amendment charged the plaintiff with having committed adulterous acts at Atlantic City at the said time and place with a party or parties unknown to defendant.

After a reference to a commissioner, plaintiff filed before him her answer and replication to the defendant's answer and cross-bill, in which she joined issue on the material allegations of the answer and denied the material allegations of the cross-bill. Therein, she admitted the trips to Washington, Charleston and New York, but denied the alleged adulterous acts on her part in said cities. She further denied that she had committed any adulterous act with Doctor Joseph Mountin in the RitzCarlton Hotel in Atlantic City.

Plaintiff moved to stay this appeal on the ground that the defendant was in contempt of the Circuit Court of Randolph County for failure to comply with a decree of January 7, 1938, entered after the appeal was granted, providing for the payment of $75.00 per month for the maintenance of herself and child, $40.00 suit money and $100.00 to plaintiff's attorney for his services in this Court. The contempt order was entered on May 19, 1938.

The sole question arising on the motion to stay is whether, after an appeal has been perfected in this Court, any steps can be taken in the trial court which would form the basis for the interference with the appeal. On this question, we must follow our own practice and procedure. This Court, in the case of Clemens v. Southern, Judge, 105 W. Va. 18, 141 S. E. 395, held, in effect, that in a non-support case, originally instituted before a justice under section 16-c (4), chapter 144, West Virginia Cumulative Statutes, 1925, the appellate court, after the perfection of an appeal, had no jurisdiction to issue a warrant of arrest of appellant and require him pendente lite to pay the installments of support money ordered to be paid by the justice. This case substantially held that the limit of appellee's rights was to secure "an affirmance of the judgment appealed from," and to pursue the statutory remedy on the bond provided by the statute. By analogy, the decree of January 7, 1938, awarding support, suit money and an attorney's fee, as well as the contempt order of May 19, 1938, entered as they were, by the circuit court after the perfection of this appeal, are purely abortive so far as the motion to stay the appeal is concerned. This position, at least so far as the question of divorce and the custody of a child is concerned, is supported by respectable authority. 2 Am. Jur., Subject, Appeal and Error, sec. 203; The People ex rel. Crumble V. Horton, 46 111. App. 434; Eastes V. Eustes, 79 Ind. 363; Dwelly V. Dwelly, 46 Me. 377. Though other courts, in a number of cases, have taken the opposite view, we are constrained by our own practice, which we think is steeped in sound principle, to overrule the motion to stay.

The evidence in this case is voluminous. The testimony of many witnesses was heard. The learned trial chancellor rendered an able opinion, upon which we, in many of its particulars, have leaned heavily. The record has been considered carefully, yet it would be unprofitable to review, in seriatim and in detail the testimony of the many witnesses. A general perusal will suffice.

Plaintiff and defendant were married in Elkins on April 25, 1931. Both apparently stood high in the community and were college-bred. The defendant was engaged as a specialist in the treatment of the eye, ear, nose and throat. For several years after their marriage, their relations were amiable and their child was born. Thereafter, and up until the time of the separation on May 11, 1936, their relations became increasingly strained, and marital difficulties mounted up between them. Shortly after their marriage, they moved to the home of the plaintiff's parents. From, a few months shortly before the marriage and up to the time of their separation, plaintiff worked in defendant's office, where she assisted him in taking care of the account books and making deposits in the bank. Her employment in the office after marriage was in conformity with a contract which she asked defendant to sign. Though denied, there is evidence that, because of extreme jealousy, her attitude in the office, especially toward women patients, was not conducive to her husband's success in his practice. The record discloses, at least until about the time of the separation, he enjoyed a lucrative practice which produced an income of about $10,000.00 a year. Notwithstanding this, at the time the depositions were taken, he was in debt to the extent of about $7,000.00, and his practice had decreased materially. Evidently, as the trial chancellor suggested, "they must have spent large sums for living and traveling expenses." She admitted that while working for...