Cottle v. Cottle , 129 W. Va. 344 ( 1946 )

In my opinion, the decree of the Circuit Court of Wood County entered in this cause should be affirmed. The majority opinion fairly pictures the evidence of what occurred between the parties, and it is not my purpose to deal with the facts, but rather with the application of what I think is the law, as applied to those facts.

The commissioner in chancery, who heard this case, came to the conclusion that neither party was entitled to a divorce. The trial court sustained the defendant's exception to the report of the commissioner, and awarded to the defendant a divorce upon the allegations of cruel and inhuman treatment contained in his answer and cross-bill, and from that decree we granted this appeal.

Plaintiff, in my opinion, established her right to a divorce solely on the occurrence at her mother's home, in Parkersburg, in December, 1943. On that occasion, the defendant, Justin Cottle, was guilty of using language which, under our statute, created ground for divorce. What occurred later in their own home on that same night, as testified to by plaintiff and defendant, need not be considered, because there is no corroboration. If the case rested upon what was proved to have occurred at the home of plaintiff's mother, I would say that plaintiff would be entitled to a divorce; but I do not think the record shows that there was any subsequent act of cruelty on the part of the defendant, such as accusations of infidelity or other types of cruel and inhuman treatment. So far as the record discloses, the parties lived together in peace and harmony, though sexual intercourse was not present, from that time until July 1944, when plaintiff left the home of defendant. In my opinion, this amounted to condonation by plaintiff of defendant's conduct on and prior to December, 1943, under Code, 48-2-14, which provides: "* * * nor shall a divorce be granted for any cause when it appears that the suit has been brought by collusion, or that the offense charged has been condoned, or was committed by the procurement or connivance of plaintiff, * * *". This statute has been applied in numerous cases. Deusenberry v. Deusenberry, 82 W. Va. 135, 95 S.E. 665;Rice v. Rice, 88 W. Va. 54, 106 S.E. 237; Hatfield v. Hatfield,113 W. Va. 135, 167 S.E. 89; DeBerry v. DeBerry,115 W. Va. 604, 177 S.E. 440. See also 17 Am. Jur., Subject Divorce, Sections 248, 251. It is true that condonation is not relied on in defendant's pleadings, and it cannot be said that he otherwise relies thereon as a matter of defense to plaintiff's case; but I do not think his failure to do so precluded the court from refusing plaintiff a divorce, when the fact of condonation on her part clearly appears. It is settled law that in a divorce suit the State of West Virginia is an interested party. Wass v. Wass, 41 W. Va. 126, 23 S.E. 537;Hall v. Hall, 69 W. Va. 175, 71 S.E. 103; Smith v. Smith,116 W. Va. 271, 180 S.E. 185. Divorces are not favored in law.Crouch v. Crouch, 78 W. Va. 708, 90 S.E. 235. Therefore, when it clearly appears from the record that the acts relied upon as grounds for divorce have been condoned by the injured party, a court should not enter a decree of divorce, even though defendant does not in his pleadings rely on such condonation as a defense. This view of the law is clearly upheld in White v.White, 121 Va. 244, 92 S.E. 811; Williams v. Williams,152 Va. 896, 148 S.E. 579; 9 Rawle C. L. 346; 17 Am. Jur., Subject Divorce, Section 323, all cited in the majority opinion. In Section 323 it is stated: "It is generally recognized that condonation is an affirmative defense which the defendant cannot prove over the plaintiff's objection, unless such defense is specially pleaded or insisted upon in the answer. Although condonation is not specially pleaded or relied on as a defense the court may, in its discretion, and ordinarily is under a duty to, refuse to grant a divorce where it appears from the proofs, properly taken, that the injured party with a full knowledge of all the facts, has actually forgiven the injury, which has not been revived by subsequent misconduct. In order to guard against fraud or collusion in the exercise of its jurisdiction, the court, at any time before a final decree in the cause, if there is reason to believe such a defense exists, may ex officio direct an inquiry to ascertain the fact. This is because the interests of the public, as well as those of the individual parties, are concerned." I am, therefore, of the opinion that the plaintiff's condonation of the only ground for divorce legally established by her, bars any relief being decreed to her.

The next question is whether defendant, on his allegation of cruel and inhuman treatment, contained in his answer and cross-bill, and the proof adduced in support thereof, is entitled to a divorce. In this connection it is not improper to refer to parts of the majority opinion which, in my opinion, do not accurately state the grounds upon which the trial court granted defendant a divorce. At one point in the opinion, the Court says that, "According to the written opinion of the circuit court, made a part of the record, the court found that the plaintiff left home, deserting defendant, and on that fact alone plaintiff was guilty of cruel and inhuman treatment"; and at another point in the same opinion it is stated: "The opinion of the trial court was to the effect that defendant was entitled to a divorce on the ground of plaintiff's action in calling a moving van to the home and causing a portion of the furniture and personal effects therein to be hauled away to her apartment at 939 1/2 Market Street, where she and her child took up their place of abode, was such inequitable conduct as would preclude plaintiff from obtaining a divorce. In the entry of the decree the trial court, as disclosed by its written opinion, evidently relied upon this ground and not upon the evidence bearing on plaintiff's actions in relation to other women." This is what the trial court actually stated as to his grounds for granting defendant a divorce: "While there is no evidence before us to the effect that Mardell Cottle literally locked Justin Cottle out of his home, the record does show that without any notice to him and while he was at work at his office, she called a moving van to the home and hauled away a portion of his furniture and personal effects, taking them to an apartment at 939 1/2 Market Street, where she and her child took up their place of abode. There is no convincing evidence to justify Mardell Cottle in such a course of conduct. Justin Cottle had provided a suitable and comfortable home for his wife and child. She left it without any good reason for so doing. This fact, together withnumerous other circumstances disclosed by the evidence, (emphasis mine) convinces the court that Mardell Cottle was guilty of cruel and inhuman treatment toward her husband as alleged in his answer and crossbill." The majority opinion ignores the statement: "This fact, together with numerous other circumstances disclosed by the evidence", and does not, in my opinion, accurately picture the court's attitude in this case.

The ground on which I would sustain the action of the court in decreeing a divorce to defendant, on his answer and cross bill, is not plaintiff's action in leaving defendant's home, and removing certain furniture therefrom. I do not think that amounted to cruel and inhuman treatment. At most, it was desertion; and, the necessary time not having elapsed, there could, of course, be no decree for a divorce on the ground of disertion, nor is it so contended. In my opinion, defendant is entitled to a divorce on the grounds of cruel and inhuman treatment, growing out of plaintiff's denial of sexual relations, coupled with what I think the court would have been warranted in holding was the propensity of plaintiff to engage in improper and unnatural sexual relations with other women. I do not contend that the proof clearly shows that plaintiff has engaged in such relations; but I do contend that the evidence introduced on that point was sufficient to warrant the trial court in finding that such inclination on her part was established, and as a fair inference that it furnishes the true explanation of her denial of sexual relations with her husband.

It is well established in this State that denial of sexual intercourse, of itself, is not sufficient to justify the granting of a divorce. It is difficult to justify this rule in all cases; but the right of a husband or wife to insist upon sexual relations, as a part of the marriage relation, is properly subject to so many exceptions, growing out of health, mental attitude and other considerations, that it would probably be unwise to make a change in the general rule heretofore announced. I think, however, that this Court has always held that where, without sufficient reasons, sexual intercourse is denied, little else is required to justify the granting of a divorce. The first case in West Virginia on this question was Reynolds v. Reynolds, 68 W. Va. 15, 69 S.E. 381, decided in 1910. It was there held: "Neither the refusal of sexual intercourse nor the fact that the parties occupied separate houses or apartments, will alone constitute good grounds for desertion"; and in the body of the opinion it is stated: "Refusal of sexual intercourse is suggested. This, if without sufficient reason, is wrong, but it is not good ground for desertion as cruel and inhuman treatment", citing cases from other jurisdictions. The next case is Wills v. Wills,74 W. Va. 709, 82 S.E. 1092, in which Judge Poffenbarger followed the Reynolds case, and answered criticism of that case. In theWills case, after referring in the first point of the syllabus to uniform and continued discourtesy of one spouse to the other, manifested in various ways, it was held: "Nor is such discourtesy combined with the exclusion of the husband from access to the wife's bed and refusal of sexual intercourse, while the marriage relation remains otherwise unimpaired, ground for divorce." This is another way of saying that such refusal "alone" is not ground for divorce. The next case wasMcKinney v. McKinney, 77 W. Va. 58, 87 S.E. 928. In that case there was some excuse shown for the wife's conduct. However, theWills and Reynolds cases, as well as Crounse v. Crounse,108 Va. 108, 60 S.E. 627, were cited in support of the opinion.

It will be noted that the cases cited above refer to denial of sexual relations, as bearing on desertion; but inRoush v. Roush, 90 W. Va. 491, 111 S.E. 334, it was held for the first time that: "Nor is denial of sexual intercourse cruel or inhuman treatment within the meaning of the statute." When we read the opinion in that case we find that the circumstances of the case had something to do with the holding, although theReynolds, Wills and McKinney cases are cited in its support. InCroll v. Croll, 106 W. Va. 691, 146 S.E. 880, the rule is somewhat relaxed. There the Court held: "Though denial of sexual intercourse by one spouse with the other, without sufficient reason, does not alone constitute grounds for divorce, yet, where such unjustifiable denial of sexual relation is accompanied by unwarranted suspension of substantially all other phases of marital duty, the offending spouse is guilty of legal desertion, though the parties occupy the same house, and the spouse offended against is entitled to a divorce." In this case there was an attempt to justify the denial of sexual intercourse, which was not accepted by the court. The conduct of the wife as to meals, and other domestic services in the home, coupled with the denial of intercourse, was held to amount to desertion on the part of the wife. In this connection see Perine v. Perine, 92 W. Va. 530,114 S.E. 871, where it was held that: "Legal desertion of one spouse by another is effected by willful, total and unjustifiable suspension of all marital duty and relationship even though both parties remain in the same house." In Arnold v. Arnold,112 W. Va. 481, 164 S.E. 850, it is stated in the body of the opinion: "* * * but the denial of sexual intercourse alone is not considered legal cruelty," citing McKinney v. McKinney,supra. "But where the situation is extreme and there is as well a cessation of general marital duty, the offending party is guilty of desertion", citing Croll v. Croll, supra. InSmith v. Smith, 116 W. Va. 271, 180 S.E. 185, the rule in theReynolds, McKinney and Croll cases is followed. InWolfe v. Wolfe, 120 W. Va. 389, 198 S.E. 209, the latest case on the subject, it is stated in the body of the opinion: "Ordinarily, denial of sexual intercourse is not desertion or cruel and inhuman treatment". On this question see also 17 Am.Jur., Subject, Divorce and Separation, Sections 75, 108; 27 C.J.S., Subject Divorce, Section 32; I Bishop on Marriage, Divorce and Separation, Sections 1676, et seq. On unnatural acts see I Bishop on Marriage, Divorce and Separation, Sections 1829, 1830; see also 43 West Virginia Law Quarterly, 202-298.

I am of the opinion that the trend of the decisions of this Court on this subject is that, while it adheres to the holding that even unjustifiable denial of sexual relations is not, alone, sufficient to entitle the injured party to a divorce, yet that fact, coupled with additional acts which are calculated to destroy the marital relation in its entirety, is sufficient to justify a divorce. I can conceive of nothing that would more tend to a disruption of all marital relations, than the unjustifiable denial of sexual relations between two people, in good health, and at an age when, in the course of nature, the natural sexual propensities are present, than a case where the denial of such relations is based on an unnatural propensity on the part of one to obtain his or her sexual satisfaction through relations with persons of the same sex. There is evidence here, which the trial court had the right to believe, that plaintiff more than once stated, in effect, that she did not enjoy sexual relations with her husband, and preferred woman to him. This, in my opinion, is the explanation of her refusal, over a long period of time, to engage in sexual relations with her husband. If the situation were such that denial of such relations was based upon conditions of health or even solely upon dislike of her husband, such refusal would not, under our decisions, be ground for divorce. On the other hand, any holding that a husband, of the age of defendant in this case, must be deprived of the ordinary and normal relationship of marriage because of the unnatural sex propensities of the wife, which may reasonably be assumed as the basis of her refusal to conform to the usual and accepted duties of the marriage relationship, and have no relief against such a situation, cannot, in my opinion be defended. I think this situation, if it exists, and I think we may construe the trial court's finding to be that, in his opinion, it did exist, furnishes a sufficient basis for the court's decree in this cause.

I am not disturbed by the case of Huff v. Huff, 73 W. Va. 330,80 S.E. 846. I am unwilling to follow the holding therein announced.

It may be said that there had been condonation on the part of the husband of denial of sexual intercourse. The husband lived with his wife long after such intercourse ceased, but he was protesting as late as December, 1943, and there is nothing in the record to show that he had full knowledge of the alleged unnatural sex propensity on the part of his wife. This was developed in the pending cause, and I do not think there has been any condonation on the part of the defendant.

We have often held that the holding of a trial court should not be disturbed unless plainly wrong, or without sufficient evidence to support it. This rule applies to divorce cases.Hurley v. Hurley, 127 W. Va. 744, 34 S.E.2d 465; Crouch v.Crouch, 124 W. Va. 331, 20 S.E.2d 169. Here, we have a holding of a trial court, upon highly conflicting evidence; and while the reasons for the court's finding are not specifically or distinctly stated, we are justified in upholding the decree, if, as to any ground for divorce, there is sufficient evidence to sustain that ground. Clearly, the trial Judge did not rely solely on what, in my opinion, amounted to an act of desertion; but he considered that in connection with what he terms "numerous other circumstances disclosed by the evidence", all of which convinced him that plaintiff had been guilty of cruel and inhuman treatment toward her husband. In this I think he was correct, and I would affirm his decree.

I am authorized to state that Judge Haymond concurs in this dissent.