Wolford v. Wolford

Decision Date22 November 1949
Docket Number10143.
PartiesWOLFORD v. WOLFORD.
CourtWest Virginia Supreme Court

Submitted Sept. 27, 1949.

Concurring Opinion Filed Dec. 8, 1949.

Syllabus by the Court.

1. A bill of complaint in a suit for separate maintenance, which does not contain a prayer for a divorce, unlike a bill of complaint in a suit for divorce, is subject to the provisions of Code, 56-4-49, and may be taken for confessed against a defendant.

2. Section 11, Article 2, Chapter 48 of the Code, which provides that a bill of complaint in a suit for divorce shall not be taken for confessed, does not apply to a bill of complaint in a suit for separate maintenance which contains no prayer for a divorce.

3. Under Code, 56-4-56, the plaintiff in a suit for separate maintenance, in which a divorce is not prayed for, is entitled to a proper decree for the relief prayed for in the bill of complaint upon the failure of the defendant to file an answer within fifteen days, or a valid extension of that period of time, after a demurrer of the defendant to the bill of complaint has been overruled.

4. A cross bill of the defendant, in which the principal relief prayed for is a divorce from the plaintiff, may not be filed in a suit for separate maintenance in which the bill of complaint contains no prayer for a divorce.

5. A final decree which is free from prejudicial error and which grants all the relief to which an appellant is entitled though rendered in a suit in which prior erroneous rulings have been made, will not be reversed by this Court on appeal.

H G. Shores, Keyser, Howard P. Shores, Keyser, for appellant.

Vernon E. Rankin, Keyser, for appellee.

HAYMOND, President.

This is a suit for separate maintenance instituted June 1, 1946 in the Circuit Court of Mineral County by Mary A. Wolford against her husband, Ralph V. Wolford. From a decree entered November 13, 1948, which awarded the plaintiff, Mary A. Wolford, $110.00 per month for maintenance and support of the plaintiff and the infant daughter of the parties and the custody of the child, denied the plaintiff the right to possess the residence owned by the defendant, Ralph V. Wolford, and to have his furniture in it, gave exclusive possession of the residence and the furniture to the defendant, refused to grant the defendant a divorce upon his cross bill filed in the case, and dismissed the cross bill of the defendant, the plaintiff has appealed to this Court.

To make clear the issues presented for decision upon this appeal it is necessary to recite in some detail the dates on which the various pleadings were filed or tendered and on which the proceedings in this suit occurred while it was pending in the circuit court and the nature of such pleadings and proceedings.

The bill of complaint, in substance, alleged that the defendant, without cause, deserted the plaintiff in April, 1946; that the plaintiff and the defendant since that time were living apart from each other; that she was without means to support herself and their twelve year old daughter in her care; that the defendant, though financially able to do so, has failed to contribute an amount sufficient for that purpose; and that she and her daughter were occupying the residence and using the furniture in it owned by the defendant. It does not pray for a divorce. Its prayer is that the defendant be required to pay the plaintiff a reasonable sum for her maintenance pending the suit and for costs and counsel fees; that on final hearing she be decreed alimony and maintenance for herself and her infant daughter from the property and the income of the defendant, and costs and counsel fees; that she be granted the right to live in the residence of the defendant and awarded the furniture in it; that the defendant be required to pay a sufficient additional sum of money for necessary repairs to the residence of the defendant; and that the plaintiff be granted general relief.

On June 24, 1946, pursuant to written notice, the plaintiff moved the judge of the circuit court, in vacation, for alimony, suit money and counsel fees for the plaintiff, maintenance for her infant daughter, and custody and control of the child, during the pendency of the suit. At that time the defendant filed his written demurrer to the bill of complaint. The judge of the circuit court overruled the demurrer, granted the motion of the plaintiff, and by decree entered on June 24, 1946, in vacation, awarded $130.00 per month for maintenance and support of the plaintiff and her daughter, $50.00 counsel fees, $25.00 suit money, and custody and control of the child. The decree recited that the plaintiff and her daughter were occupying the residence of the defendant; that he was residing elsewhere; and that the award was based upon that status of the parties. The decree, however, contained no express provision with respect to the right of the plaintiff to continue in possession of the residence or to have or use the furniture in it.

On September 9, 1946, also in vacation, the defendant, after due notice to the plaintiff, filed his verified petition that the amount awarded for maintenance and support by the decree of June 24, 1946, be reduced. The petition set forth the financial inability of the defendant to pay the sum awarded and alleged that the plaintiff, in addition to the $130.00 per month decreed to her, was receiving rent of about $60.00 from portions of the residence of the defendant, and that the amount received by her from the award and the rent was approximately $190.00 per month, which was greatly in excess of that necessary adequately to support and maintain the plaintiff and her child. After a hearing upon the petition, the judge of the circuit court reduced the previous award from $130.00 per month to $100.00 per month for a period of five months from September 9, 1946, and awarded $110.00 per month, after the expiration of that period of time, until the further order of the court.

No further proceeding occurred in the case until December 10, 1946, at which time the defendant tendered and asked leave to file his answer to the bill of complaint. The answer denied the material allegations of the bill of complaint, charged acts of adultery engaged in by the plaintiff with two men at designated places in the years 1925, 1926 and 1927, and sought, as affirmative relief against the plaintiff, a divorce on the ground of cruel or inhuman treatment. The plaintiff resisted the motion of the defendant to file the answer for the assigned reasons that it should have been filed at July Rules, 1946, and that the defendant, not having asked or been granted any extension of the period of fifteen days from the time his demurrer to the bill of complaint was overruled on June 24, 1946, could not file any answer after the expiration of the fifteen day period. The court did not then pass upon the question of the right of the defendant to file his answer and, with the assent of counsel for each of the parties, continued the case.

Pending the decision of the court concerning the right of the defendant to file an answer, the defendant, on May 29, 1947, caused process, returnable to June Rules, 1947, to be issued and served upon the plaintiff to answer a cross bill of the defendant, and filed his cross bill at rules. The cross bill contained substantially the same allegations that were set forth in the answer of the defendant and prayed for a divorce on the grounds of adultery and cruel or inhuman treatment by the plaintiff. On June 2, 1947, the plaintiff notified the defendant that on June 13, 1947, in vacation, she would move the judge of the circuit court for an additional allowance of suit money and counsel fees to enable her to make defense to the answer of the defendant, but it does not appear that any action was taken in that respect on the day fixed by the notice.

On August 11, 1947, during a regular term of court, upon the bill of complaint and the answer, the case was referred to a commissioner in chancery with directions that he make and return, at the next term of court, a report concerning the property rights of the parties, their incomes, conduct, health, habits, children, places of residence and such other pertinent matters as the commissioner should require or either party should demand. The plaintiff, on September 22, 1947, filed her demurrer and her answer to the cross bill of the defendant. The grounds assigned by the demurrer were that the allegations of the cross bill did not constitute cruel or inhuman treatment upon the part of the plaintiff, that the alleged acts of adultery, if committed by the plaintiff, had been condoned by the defendant, and that the matters set forth in the cross bill were not germane to the subject matter of the bill of complaint of the plaintiff. The answer filed by the plaintiff denied the material allegations of the cross bill and prayed that the cross bill be dismissed.

At this stage of the proceedings in the case the commissioner requested the court to direct him how to proceed with respect to the pleadings and the proof. By decree entered May 25 1948, the answer of the defendant to the bill of complaint of the plaintiff was rejected, the contention of the plaintiff that the bill of complaint should be taken for confessed was denied, the cross bill of the defendant was permitted to be filed, the demurrer of the plaintiff to the cross bill was sustained as to the allegations of adultery and overruled as to the allegations of cruel or inhuman treatment, and the case was again referred to the commissioner for proof. In a written opinion, referred to in the decree, the court held that the case should be heard upon the issues raised by the bill of complaint of the plaintiff, the...

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