158 Va. 597 | Va. | 1932
delivered the opinion of the court.
On September 6, 1930, Herbert A. Inman instituted his suit for divorce against his wife, Mae Inman. In his bill
On November 3, 1930, during the same term of the court at which the decree of October 23rd was entered, on the motion of Mrs. Inman, the court entered its decree setting aside and annulling its decree of October 23rd, and granted Mrs. Inman leave to file her answer and cross bill. In her answer and cross bill Mrs. Inman denied that she had deserted her husband, alleged that he had deserted her, and prayed that she be granted a divorce from her husband on that sole ground and awarded both temporary and permanent alimony. Depositions were taken by Mrs. Inman to sustain her answer and cross bill, and depositions were taken by Mr. Inman in rebuttal.
On August 23, 1931, the court entered its decree, which, in so far as is here material, reads as follows: “It is adjudged, ordered and decreed that the decree entered herein on November 3, 1930, be rescinded, vacated and set aside, and that the decree entered herein on October 23, 1930, be reinstated.” From this decree Mrs. Inman has appealed.
We shall first consider the aspect of the cause presented by Mr. Inman’s bill for a divorce from his wife.
The only allegations in Mr. Inman’s bill relating to his charge that Mrs. Inman had deserted him are as follows:
“On or before the 2nd of September, 1930, the said Mae
The only depositions which were taken in this cause prior to November 3, 1930, were the depositions of Mr. Inman, Mrs. Hubert White and Miss Cowell, which were taken on behalf of Mr. Inman. Mrs. White was the next door neighbor and intimate friend of Mr. and Mrs. Inman. Miss Cowell was an employee of Powers and Anderson Surgical Instrument Company, Incorporated, of which Mr. Inman was the general manager, and by which Mrs. Inman was employed as an assistant to her husband. In so far as these depositions have any bearing upon the alleged desertion of her husband by Mrs. Inman, or relate to anything which led up to, or took place at the time of, or after, the alleged desertion, they are quoted in full below.
The deposition of Herbert A. Inman, the plaintiff:
“Q. In your bill you allege that on or about the 2nd of September, 1930, the respondent stated to you that she did not intend to live with you any longer, and that she was going to leave you and would not return to you. Will you please state what statement she made to you at that time?
“A. She stated that she was through with me, and I could consider that she was finished, and that she was ■leaving.
“A. She has left me, yes.
“Q. Were you in Norfolk at the time she left?
“A. I was not.
“Q. When you returned to Norfolk what condition did you find your home in?
“A. Very little left in it of any value whatsoever. All of the furniture, the silverware, glassware, china and otherwise of any value had been removed. The house was almost vacant of furniture or other household goods.
“Q. Mr. Inman, during your married life did you provide Mrs. Inman a home and contribute to her support?
“A. I did.
“Q. Did you give her any cause for leaving you?
“A. I did not.”
The deposition of Mrs. Hubert White:
“Q. Did you notice their family life while they were living next to you for four years? (and) how was it?
“A. I did. Very pleasant at times, most of the time.
“Q. Did you have any conversation with Mrs. Inman in regard to her leaving Mr. Inman during the early part of September of this year?
“A. Yes; she came into my house, and she told me that Mr. Inman knew all of her movements for the last three months, and that she was leaving town immediately.
“Q. Was Mr. Inman in the city at that time?
“A. Mr. Inman was on a business trip at that time.
“Q. Pursuant to that statement did she later leave?
“A. Yes.
“Q. Do you know whether or not she took the furniture, silverware, etc., with her?
“A. She took all the furniture that was of any value with the exception of three pieces.
“Q. Was Mr. Inman in town when she removed the furniture, etc?
“Q. Do you know whether she has lived there since that time or has she been back?
“A. She has not.
“Q. Did she tell you where she was going?
“A. She told me that she was going to Richmond to her mother’s, and then she would possibly go on to Washington.”
The deposition of Miss Zula Cowell:
“Q. Do you know when she (Mrs. Inman) quit work?
“A. She worked the first three days in September, but did not come back the last part of the first week.
“Q. Did you have any conversation with her during the latter part of the first week in September?
“A. Yes; she came in the store to get her personal belongings. She gave me the key to the safe, and at the time she said she was leaving; that Mr. Inman and she would not live together; that that was the end, and she did not know where she was going, but thought she was going to Richmond.
“Q. Did you have any other conversation with her later?
“A. Yes; she called me up on the day she left and said she was leaving in a few moments.
“Q. Did she say where she was going?
“A. Yes; she said she was going to Richmond.
“Q. Do you know whether she has been back to live in Norfolk since that time?
“A. Not to my knowledge.
“Q. Was Mr. Inman in the city when she turned the key over to you, and later called you up and told you goodbye?
“A. No; when she called me up and told me good-bye he was not in the city.”
The decree of October 23, 1930, by which a divorce was
The complainant had not proved that he had made any attempt to effect a reconciliation with the defendant and to get her to return to and live with him as his wife; nor had he proved any facts or circumstances which excused him from making in good faith such an attempt. On the other hand, the haste with which this suit was instituted after the desertion is alleged to have taken place would seem to negative any desire on the part of Mr. Inman for a reconciliation; and, in the absence of evidence to the contrary, warrants the inference that the complainant feared that, if he did not act promptly, his wife would do some act which would show that she had not deserted him, or (if she had deserted him) would offer to return to and live with him as his wife, before he could institute his suit charging her with desertion.
The entry of a decree for divorce on the ground of desertion under such a state of the pleadings and proof constituted reversible error which the court should have corrected by setting aside the decree. Sussman v. Sussman, (ante, page 382, 163 S. E. 69, 70; Devers v. Devers, 115 Va. 517, 79 S. E. 1048, 1049; Tutwiler v. Tutwiler, 118 Va. 729, 88 S. E. 86; Duff v. Duff, 145 Va. 526, 134 S. E. 555; Markley v. Markley, 145 Va. 596, 134 S. E. 536.
This is a matter which affects not only the plaintiff and defendant, but the State. “The well-being and good order of society demand that husbands and wives shall in good faith endeavor to reconcile their differences and dwell together in unity and peace, rather than to make occasion for resort to the courts for redress.” Devers v. Devers, supra.
In Sussman v. Sussman, supra, this court recently said:
When we come to examine the depositions taken after November 3, 1930, we find no evidence which tends to show that Mr. Inman at any time offered to become reconciled with his wife and to live with her again as her husband, or that there were any facts and circumstances which excused him for not having done so. On the contrary, we think that when all the evidence in the cause is read together, it shows that if there was any desertion by either party, Mr. Inman deserted Mrs. Inman.
It follows that the court was in error in having entered any decree the effect whereof was to grant to Mr. Inman a divorce from Mrs. Inman, and, therefore, even if the decree of August 31, 1930, be otherwise unobjectionable, the court erred in entering that decree.
This brings us to the second aspect of this cause, that is, Mrs. Inman’s suit for a divorce from her husband which is presented in her cross bill.
The record presents a case in which Mrs. Inman had greater provocation to leave her husband than he had to leave her, and there is more to excuse her for not having sought a reconciliation before filing her cross bill than there is to excuse him for not having done so before he instituted his suit. But the question here presented is not which of these parties is the least to blame, but does the record show that Mrs. Inman has performed the duty with reference to attempting in good faith to effect a reconciliation which the law imposes upon her as a prerequisite to her being entitled under her cross bill to a divorce on the sole ground of desertion? Upon a consideration of the whole record, we think that it does not.
Her testimony shows that from September 3rd on, she was cognizant of all steps that were being taken by her husband to secure a divorce from her on the ground that she had deserted him. She herself had several interviews
Their home in Norfolk was conveyed to them jointly, and their joint equity in it was worth about $4,000.00, or perhaps a little more. Acting through her counsel (Mr. Wagenheim) she entered into an agreement with her husband for a settlement of their property rights and the payment to her of $960.00, which was predicated upon his procuring a divorce from her. Under this agreement, which was fully executed on or about October 15, 1930, Mrs. Inman conveyed to Mr. Inman all her right, title and interest in their home place and he paid her $4,000.00, and also the amount ($960.00) which she would have received as salary had she continued for six months in the employment of Powers and Anderson Surgical Instrument Company as assistant to her husband. Neither in her cross bill nor her testimony does Mrs. Inman offer, or suggest her willingness, to restore the status quo with reference to this property settlement, or offer any reason why, if she in good faith desires a reconciliation, she does not do so.
While there is evidence tending to show that she was distressed at the rupture that had taken place between her and her husband, it is far from clear from this record that after she discovered that her husband had employed counsel looking to procuring a divorce from her, she had, or expressed even to her counsel, any desire for a reconciliation with him, until after she had employed her present counsel, which was some time between October 23rd and November 3, 1930. On the other hand, there is much about the case to indicate that the offer of reconciliation, which she makes in her cross bill and in her testimony, is made rather to sustain her prayer for a divorce and alimony than to procure a reconciliation.
Upon a consideration of the whole record we are of opinion that neither Mrs. Inman nor Mr. Inman has established a right to a divorce on the ground of desertion. The decree appealed from will be reversed, and a decree here entered dismissing both the bill and the cross bill, with costs to the appellant as the party substantially prevailing.
We have had several cases before us comparatively recently in which one of counsel for a party to the cause has also appeared as a material witness for his client, in some instances as the chief witness for his client. Generally speaking, when counsel for a party to a cause finds that he is required as a material witness for his client, he should so advise his client and retire as counsel in the case. Perhaps there are cases in which an attorney may, with propriety, continue as counsel, though he has been called as a witness, but they are rare.
Reversed.