Wolford v. Wolford , 133 W. Va. 403 ( 1949 )

I agree with the conclusion reached by the majority in deciding this case. However, I fear that if the language of the opinion is logically applied it will be thought to hold that a suit for separate maintenance and divorce may be brought by the wife under Code, 48-2-29. The opinion certainly does not disapprove that practice nor overrule at least two West Virginia cases which uphold it. Infra. The fourth syllabus states that a cross bill in which the principal relief prayed is divorce from the plaintiff may not be entertained in a suit for separate maintenance in which the bill of complaint contains no prayer for divorce. The clear inference that follows is that if the bill of complaint does contain a prayer for divorce, the cross bill praying for divorce may be entertained. The opinion also states that a suit for separate maintenance is an ordinary chancery cause and clearly distinguishes it from a divorce proceeding, to which our statutes attach far greater solemnity.

To my mind the principal difficulty in this case is that Code, 48-2-29, in authorizing a separate suit by the wife for maintenance, uses in part the following language:

"* * * shall, at the suit of the wife, in chancery, whether or not a divorce be prayed for, decree to the wife as alimony and separate maintenance * * *". (Italics mine.)

By expressly providing that the relief shall be granted "whether or not a divorce be prayed for" the clear implication is that a divorce may be sought in a suit the primary purpose of which is the procurement of an award for separate maintenance.

The fact that the majority opinion does not recognize the seriousness of the difficulty involved I think is demonstrated by two quotations therefrom, first:

"The defendant could have instituted an independent suit for divorce but he did not have the right to file a cross bill for divorce in the pending suit for separate maintenance and by that means transform that suit into a suit for divorce."

and

"The subject matter of the cross bill is not germane to the subject matter of the bill of complaint and, in consequence, it can not properly be brought into this suit."

The two quoted statements, to my mind, clearly conflict with this Court's position in the case of Hale v. Hale, 104 W. Va. 254,139 S.E. 754. That case was a chancery cause for support and maintenance brought by the wife in the Circuit Court of Mercer County. It was not instituted as a divorce proceeding nor did the bill of complaint pray for divorce. The husband filed at rules his answer in the nature of a cross bill alleging seven years desertion and praying for an absolute divorce. At the following rules the plaintiff filed a paper called "special reply" praying that the defendant's cross bill be dismissed because it injected new matter and prayed for affirmative relief. This plea was later abandoned and the plaintiff filed in open court a so-called "amended special replication" alleging adultery on the part of the defendant and praying that the plaintiff-wife be awarded an absolute divorce. The final decree granted her an absolute divorce. The first syllabus of the opinion reads as follows:

"A non-resident wife whose husband is a citizen of this State sues him here for maintenance. He files an answer in nature of a cross-bill praying for a divorce. She may then file an amended pleading in the suit asking for similar relief; filing of the cross-bill by the defendant confers jurisdiction for that purpose."

True, in the body of the opinion the statement is made that jurisdiction of the defendant's cross bill is not questioned. Nevertheless the case definitely holds that in a chancery cause brought by the wife for the purpose of recovering only maintenance and support, the question of divorce can be introduced by the filing of a cross bill and thereafter adjudicated. We are now holding in this case the exact opposite because we consider that it was the purpose of the Legislature not to discriminate as between husband and wife in divorce matters and to attach more formality and solemnity to divorce proceedings than to proceedings brought for the purpose of monetary recovery. I think therefore that this Court's declaration in the Hale case should have been discussed and that the statement should also have been clearly made that this Court does not consider that the mere wording "whether or not a divorce be prayed for" impliedly confers jurisdiction to consider and adjudicate divorce questions in a maintenance proceeding. The Hale case is followed and cited with approval inGain v. Gerling, 109 W. Va. 241, 244, 153 S.E. 504, and the rule established therein is applied in Hewitt v. Hewitt, 120 W. Va. 151,197 S.E. 297, and in Vickers v. Vickers, 95 W. Va. 323,122 S.E. 279.

The Court should now, I believe, simply read out of the section in question the qualifying phrase "whether or not a divorce be prayed for." It can have no effect except to impliedly confer jurisdiction for divorce at the suit of the wife only, ignoring the husband and casting upon him alone the formalities required in a statutory divorce proceeding. Among the statutory exactions attaching to a divorce proceeding and not to a suit for maintenance are that process shall not issue until after the bill of complaint is filed, that the matter shall be heard independently of the admissions of the parties in their pleadings or otherwise, and that no decree be granted upon the uncorroborated testimony of either party. Since it is made plain by the Revisers' note that in suggesting Code, 48-2-29, it was intended merely to have the Legislature approve an existing practice and since that practice in a proceeding for support and maintenance would not require the exacting formality of a divorce proceeding, it would seem plain that the Legislature intended only to confirm, simplifying for the wife the enforcement of a right belonging to her only: support and maintenance. Certainly the Legislature did not intend to permit the wife to obtain a divorce in an ordinary chancery proceeding and at the same time to continue requiring the husband in the event he sued to fully comply with the statutory formalities attached to a proceeding for divorce. As stated, I believe that the difficulty which led to the intermingling of a proceeding under Code, 48-2-29, and a divorce proceeding, arose from the fact that the language "whether or not a divorce be prayed for" is found in the statute under consideration, wherein it has no place.

I believe that in a general discussion of a cross bill, its purpose and effect, as contained in the opinion, a factor that should be mentioned is that while upon the incoming of a cross bill the proceeding continues as one suit, still upon the dismissal of the bill of complaint the cause may be kept in court on the cross bill alone. Di Bacco, et al. v. Benedetto, etal., 82 W. Va. 84, 89, 95 S.E. 601; Taylor v. Taylor, 128 W. Va. 198,36 S.E.2d 601. The principal effect of a cross bill seems to be to divide the control of the cause as between the complainant and the defendant and not leave it with the complainant alone.

Another matter that I believe the general discussion of a cross bill should include in this jurisdiction is the fact that Code, 56-4-59, in providing that an answer alleging new matter which constitutes a claim for affirmative relief will be considered on the basis of a cross bill and decrees entered accordingly, has well nigh done away with the necessity of cross bills.