Baytop v. Baytop

100 S.E.2d 14, 199 Va. 388, 1957 Va. LEXIS 202
CourtSupreme Court of Virginia
DecidedOctober 14, 1957
DocketRecord 4696
StatusPublished
Cited by15 cases

This text of 100 S.E.2d 14 (Baytop v. Baytop) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baytop v. Baytop, 100 S.E.2d 14, 199 Va. 388, 1957 Va. LEXIS 202 (Va. 1957).

Opinions

[389]*389Miller, J.,

delivered the opinion of the court.

On April 6, 1956, appellee, Lillian Holmes Baytop, instituted suit for divorce against appellant, Thomas Anderson Baytop. She charged cruelty, and constructive desertion as of April 1, 1956, and prayed for a divorce a mensa et thoro, and alimony. In his answer and cross-bill, appellant denied the charges, alleged that appellee had deserted him and prayed for a divorce because of her desertion.

The evidence was heard ore tenus on July 25 and 26, 1956. The court concluded that appellee’s allegations had been sustained and that she was entitled to a divorce from bed and board and $150 a month alimony. From a decree of July 26, 1956, carrying these findings into effect and dismissing appellant’s cross-bill, he appealed.

Appellant asserts that,

(a) Appellee’s testimony was uncorroborated and insufficient to sustain the decree, and appellee condoned any cruelty on appellant’s part;

(b) He should have been awarded a divorce on the ground of desertion; and

(c) No alimony should have been awarded appellee.

Much of the testimony is irrelevant, but that material to the issues may be stated thus:

Appellee, now 40 years of age, was born near Dunnsville, Virginia, where her parents lived until their deaths in 1955. Appellant, 41 years of age, was born at Water View, Virginia, where his parents now live. The parties first met in 1941 while attending St. Paul’s Polytechnic Institute, Lawrenceville, Virginia. They both graduated from this institution and then did graduate work at Hampton Institute, Hampton, Virginia, and she also studied at Virginia State College, Petersburg, Virginia. Appellee accepted a position as a teacher in Middleburg, Virginia, and appellant secured a position as a teacher at Dover, Delaware. When they were married on April 23, 1949, both had been teaching for several years. She was still teaching at Middleburg, and he in Delaware, when they separated on April 1, 1956, and appellee was earning a salary of approximately $3100 a year and appellant about $4200 a year. He also owns some land in Middlesex county where he has a tractor which has been partially paid for and other farming implements.

When married both of them thought it best to continue teaching so they could accumulate funds with which to build a house. Ap[390]*390pellee had a room in a private home in Middleburg where two or more other teachers were lodged. Appellant shared a small apartment in Dover, Delaware, with another man, but later he moved to an apartment in nearby Seaford, Delaware, which he still maintained on April 1, 1956.

Throughout the first several years of their married life, appellee visited appellant at his apartment on week-ends. About twice a month she would go to Delaware on Friday and stay until Sunday, and on a few occasions appellant went to Middleburg to visit his wife. At other times both visited their parents at Dunnsville and Water View, and were thus together for short periods of time. In the summer of 1953, they spent two or three months together at the home of appellant’s sister in Middlesex county, yet at no time during their married life did they have a home together.

Relations between the two became strained in 1953 and 1954. Appellee said that appellant made it plain that he did not desire that she continue to visit him, refused to give her a key to his apartment and never met her at the bus station. He discouraged all suggestions that she be allowed to secure employment where he lived so that they could maintain an apartment together and finally told her, “We will never have anything together.” As time went on, the relations became more strained, and during the summer of 1954, appellee found a letter written to appellant from another woman. It disclosed that illicit relations had existed between appellant and the writer, and that she was pregnant by him. His attempted explanation of this letter, and his associations with this woman clearly show that he had been unfaithful to his wife. Though appellee condoned her husband’s offense and continued to visit him, yet she became more nervous and unstrung. Her testimony and that of members of her family show that she at times had spells of crying and prolonged nervous tension, lost weight, and had to seek medical aid for her condition. Their testimony also shows that appellant was rude to his wife and coldly indifferent to her condition and to her efforts to have him establish a home so that they might live together normally. Her sister, Clara Bayton, described her condition as follows:

“A. Well, I would say that as time goes on she seems to be more nervous and upset, just under a nervous strain all the time and so much so we would ask her, ‘Are you feeling well? ’ She would say, ‘Oh, yes,r I feel all right,’ and then she would break down and cry, but she wouldn’t say why she was crying.
[391]*391iAL A*. tSy. .y. ^3. W t? *31' *3S* w
“Q. You say that she had not always been nervous. When, if at all, did you observe any particular change in her in that regard?
“A. Well, I would say from the past three to four years she has been excessively nervous and as time went on more so.
-V*. Aj. A*. AA. .w, AJ. A3. "«• W W W W W *?P
“Q. You say she has lost weight gradually since 1953?
“A. Yes.”

Her brother, Raymond L. Holmes, in describing her condition, said that she was “quite nervous and upset * * * would break down and cry at times, and not have much to say to anybody,” but after April 1, 1956, there had been a noticeable change for the better and she was not “nearly so nervous as she was, maybe, six months ago.”

On March 31, 1956, while they were on a week-end vacation with appellant’s parents in Middlesex, appellant left about eleven a.m. About midnight appellee found him at a nearby “beer parlor.” She insisted that he leave; each became incensed with the other, and they cursed and abused each other. She says that after he cursed her, she slapped him. He thereupon left in his car, and she thought he was going to his sister’s but when she arrived in her car, he was not there. After staying there a short time, she drove on to his parents’ home, and she gave this account of what then transpired:

“[W]hen I got to his mother’s home he had gone in and gone to bed and he had locked the door, but he wouldn’t get up to unlock the door, and I called him and his mother wouldn’t get up until I called his name and she came down, and when I got in I said, ‘Why didn’t you open the door? ’ He said, ‘I was asleep,’ and then he said, ‘You thought you were so goddam cute coming in that place to get me out, didn’t you?’ I said, ‘No, but you are my husband and we haven’t seen each other for two or three week ends and it looks like you could have come home and had your dinner after I prepared it,’ and he said ‘Don’t you slap me any more. If you do I am going to get up and stomp your guts out,’ and then he called me ‘a goddam rundown gut.’ Then I called him ‘a black son-of-a-bitch’ and then he said, ‘I am not going to sleep in the bed with you if I am a goddam son-of-a-bitch,’ and he got up and started to putting his clothes on and then his mother came down, and then he said everything he felt [392]*392like saying.

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Baytop v. Baytop
100 S.E.2d 14 (Supreme Court of Virginia, 1957)

Cite This Page — Counsel Stack

Bluebook (online)
100 S.E.2d 14, 199 Va. 388, 1957 Va. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baytop-v-baytop-va-1957.