Riley, President:
The plaintiff, Jean S. Miles, brought this suit in the Circuit Court of Wyoming County, praying for an absolute divorce from her husband, Billy C. Miles, the custody of their infant daughter, Billy Jean Miles, alimony, court
costs, and attorney’s fees. From a decree awarding plaintiff a divorce, the care and custody of the child, alimony in the sum of fifty dollars a month, twenty-five dollars a month for the maintenance and support of the infant child, and attorney’s fees, defendant prosecutes this appeal.
In her bill of complaint, plaintiff charges defendant with cruel and inhuman treatment, under Code, 48-2-4, and the latter, in his answer, first denied that he was guilty of cruel treatment and by way of confession and avoidance set forth the defense of condonation.
The record discloses that the parties were married in Bluefield on August 18, 1945, without the knowledge or consent of plaintiff’s parents, and that they separated on September 28, 1946. At the time of the marriage plaintiff was twenty years old and had not been previously married. Defendant had been married on three former occasions, which marriages had been dissolved by divorces.
Plaintiff testified that when she was eight months pregnant, defendant hit her a hard blow on the head with his fist; that on another occasion he jerked her out of bed and shook, slapped and kicked her; that on the day of the separation defendant beat and choked her, while she was bathing their baby; and that as the result of one of his beatings there were bruises on her back, breast and head; and on other occasions the beatings resulted in scars and bruises which could be seen and were testified to by other witnesses. While the parties were living together at Oceana in Wyoming County, Mr. and Mrs. J. L. Selvey found plaintiff at a neighbor’s house crying, on which occasion plaintiff exhibited to them bruises which she testified were the result of defendant’s beating and choking her. Mrs. Selvey testified that defendant had admitted to her he had hit plaintiff. Other witnesses, one-Chester Hawkins and a Mrs. James Roberts also stated that they saw finger prints and marks on plaintiff, which plaintiff said were caused by defendant’s abuse.
We glean from this record that both parties were persons of high temper, and that while they lived together
the relations between them were far from amicable. Defendant accused plaintiff of being unwilling to»conduct a proper home for him by failing to cook regular meals for him for two months prior to the separation. But, on the other hand, plaintiff says that defendant did not get up in time for breakfast; that of his own volition he took his meals at the place where he worked; and that when defendant went to bed she fixed sandwiches so he could eat them while he read in bed.
These alleged acts of cruelty were categorically denied by defendant, but the trial chancellor found, as shown by his written opinion made a part of the record, that his denial was not convincing.
In addition to his denials, defendant contends that plaintiff, as shown by her own testimony, condoned the acts of cruelty charged. According to plaintiff, she had had sexual intercourse with defendant at her parents’ home in Mullens on two occasions after the separation. These occurred two days apart in evenings when her parents were away from home. She testified that when defendant came to see her he “kept bothering me and asking for relationship”, and that she refused until he “overcome my emotions”. On the second and last occasion she says defendant telephoned her to see if he could come to the house, and, after obtaining her Aunt Mary’s approval, she telephoned him to come. On this occasion she testified that she tried to get defendant to wait but he would not and “I will say I voluntarily gave into it because I couldn’t help it”. This witness further testified that defendant told her that since they were husband and wife, it would be all right to have sexual intercourse and that it would not prevent or interfere with her getting a divorce. On November 11, 1946, plaintiff wrote to defendant, in part, as follows:
“Seriously — I am coming home. I’m afraid it will have to wait til first of next week though. I am hoping you still want us to come home. You can write and tell me what you want. #
%
‡
“Dad and I had a long talk last week and he £aid that if he thought you would be good to me and we could make a go of it then he’d like to see us go back together.
“But I’m afraid that
mon
won’t get over it for a long time. I have already forgiven you but she hasn’t. She doesn’t want me to come back because she is afraid the same thing would happen again but I know it won’t. Bill — -I have lots of faith in you and I know you will keep your word. * * *
“Billie Jean sends her love:
“Love, •
Jean.”
The plaintiff did not go back to defendant after the letter was written, and nothing occurred after the alleged acts of condonation, which would amount to a waiver of condonation, if such there was. In fact, the parties were not together again until they were brought together during the course of the trial, so there was no opportunity for any act of cruelty to intervene between the alleged condonation and the bringing of this suit.
In our opinion, the trial chancellor was justified in his finding that defendant was guilty of statutory cruel and inhuman treatment, so that, in the absence of condonation, plaintiff would be entitled to a divorce. In
Duesenberry
v.
Duesenberry,
82 W. Va. 135, 95 S. E. 665, this Court, in a suit for divorce
a mensa et thoro
on the ground of cruel and inhuman treatment, held that where the trial court has found from the evidence the fact of cruel and inhuman treatment such as would merit relief, “and the evidence tending strongly to support that finding, the decree will not be reversed on the question of fact.” Pt. 2, syl.
So the decisive question in this case is whether the acts of intercourse engaged in by the parties after the separation considered in connection with plaintiff’s letter of November 11, 1946, are sufficient to constitute condonation. Unlike a case in which a divorce is sought on the ground of adultery, where, under Code, 48-2-14, a single act of coition, after the innocent party has knowledge of
the adultery, is sufficient to constitute condonation, acts relied upon for condonation of statutory cruel and inhuman treatment must “evidence an unequivocal intent to forgive the transgressions complained of and to voluntarily resume marital relations.”
Norman
v. Norman, 88 W. Va. 640, 107 S. E. 407. So it cannot be held that the two acts of sexual intercourse, which plaintiff finally admitted on cross-examination were entered into voluntarily on her part, are sufficient to condone the acts of cruelty on defendant’s part established by this record.
Free access — add to your briefcase to read the full text and ask questions with AI
Riley, President:
The plaintiff, Jean S. Miles, brought this suit in the Circuit Court of Wyoming County, praying for an absolute divorce from her husband, Billy C. Miles, the custody of their infant daughter, Billy Jean Miles, alimony, court
costs, and attorney’s fees. From a decree awarding plaintiff a divorce, the care and custody of the child, alimony in the sum of fifty dollars a month, twenty-five dollars a month for the maintenance and support of the infant child, and attorney’s fees, defendant prosecutes this appeal.
In her bill of complaint, plaintiff charges defendant with cruel and inhuman treatment, under Code, 48-2-4, and the latter, in his answer, first denied that he was guilty of cruel treatment and by way of confession and avoidance set forth the defense of condonation.
The record discloses that the parties were married in Bluefield on August 18, 1945, without the knowledge or consent of plaintiff’s parents, and that they separated on September 28, 1946. At the time of the marriage plaintiff was twenty years old and had not been previously married. Defendant had been married on three former occasions, which marriages had been dissolved by divorces.
Plaintiff testified that when she was eight months pregnant, defendant hit her a hard blow on the head with his fist; that on another occasion he jerked her out of bed and shook, slapped and kicked her; that on the day of the separation defendant beat and choked her, while she was bathing their baby; and that as the result of one of his beatings there were bruises on her back, breast and head; and on other occasions the beatings resulted in scars and bruises which could be seen and were testified to by other witnesses. While the parties were living together at Oceana in Wyoming County, Mr. and Mrs. J. L. Selvey found plaintiff at a neighbor’s house crying, on which occasion plaintiff exhibited to them bruises which she testified were the result of defendant’s beating and choking her. Mrs. Selvey testified that defendant had admitted to her he had hit plaintiff. Other witnesses, one-Chester Hawkins and a Mrs. James Roberts also stated that they saw finger prints and marks on plaintiff, which plaintiff said were caused by defendant’s abuse.
We glean from this record that both parties were persons of high temper, and that while they lived together
the relations between them were far from amicable. Defendant accused plaintiff of being unwilling to»conduct a proper home for him by failing to cook regular meals for him for two months prior to the separation. But, on the other hand, plaintiff says that defendant did not get up in time for breakfast; that of his own volition he took his meals at the place where he worked; and that when defendant went to bed she fixed sandwiches so he could eat them while he read in bed.
These alleged acts of cruelty were categorically denied by defendant, but the trial chancellor found, as shown by his written opinion made a part of the record, that his denial was not convincing.
In addition to his denials, defendant contends that plaintiff, as shown by her own testimony, condoned the acts of cruelty charged. According to plaintiff, she had had sexual intercourse with defendant at her parents’ home in Mullens on two occasions after the separation. These occurred two days apart in evenings when her parents were away from home. She testified that when defendant came to see her he “kept bothering me and asking for relationship”, and that she refused until he “overcome my emotions”. On the second and last occasion she says defendant telephoned her to see if he could come to the house, and, after obtaining her Aunt Mary’s approval, she telephoned him to come. On this occasion she testified that she tried to get defendant to wait but he would not and “I will say I voluntarily gave into it because I couldn’t help it”. This witness further testified that defendant told her that since they were husband and wife, it would be all right to have sexual intercourse and that it would not prevent or interfere with her getting a divorce. On November 11, 1946, plaintiff wrote to defendant, in part, as follows:
“Seriously — I am coming home. I’m afraid it will have to wait til first of next week though. I am hoping you still want us to come home. You can write and tell me what you want. #
%
‡
“Dad and I had a long talk last week and he £aid that if he thought you would be good to me and we could make a go of it then he’d like to see us go back together.
“But I’m afraid that
mon
won’t get over it for a long time. I have already forgiven you but she hasn’t. She doesn’t want me to come back because she is afraid the same thing would happen again but I know it won’t. Bill — -I have lots of faith in you and I know you will keep your word. * * *
“Billie Jean sends her love:
“Love, •
Jean.”
The plaintiff did not go back to defendant after the letter was written, and nothing occurred after the alleged acts of condonation, which would amount to a waiver of condonation, if such there was. In fact, the parties were not together again until they were brought together during the course of the trial, so there was no opportunity for any act of cruelty to intervene between the alleged condonation and the bringing of this suit.
In our opinion, the trial chancellor was justified in his finding that defendant was guilty of statutory cruel and inhuman treatment, so that, in the absence of condonation, plaintiff would be entitled to a divorce. In
Duesenberry
v.
Duesenberry,
82 W. Va. 135, 95 S. E. 665, this Court, in a suit for divorce
a mensa et thoro
on the ground of cruel and inhuman treatment, held that where the trial court has found from the evidence the fact of cruel and inhuman treatment such as would merit relief, “and the evidence tending strongly to support that finding, the decree will not be reversed on the question of fact.” Pt. 2, syl.
So the decisive question in this case is whether the acts of intercourse engaged in by the parties after the separation considered in connection with plaintiff’s letter of November 11, 1946, are sufficient to constitute condonation. Unlike a case in which a divorce is sought on the ground of adultery, where, under Code, 48-2-14, a single act of coition, after the innocent party has knowledge of
the adultery, is sufficient to constitute condonation, acts relied upon for condonation of statutory cruel and inhuman treatment must “evidence an unequivocal intent to forgive the transgressions complained of and to voluntarily resume marital relations.”
Norman
v. Norman, 88 W. Va. 640, 107 S. E. 407. So it cannot be held that the two acts of sexual intercourse, which plaintiff finally admitted on cross-examination were entered into voluntarily on her part, are sufficient to condone the acts of cruelty on defendant’s part established by this record. They, however, should be considered with the other evidence bearing on the defense of condonation for the purpose of determining whether this case comes within the ruling in the
Norman
case. We think it does. In
Currence
v.
Currence,
123 W. Va. 599, Pt. 1, syl., 18 S. E. 2d 656, this Court held that “The continuance or resumption of full marital relations by a husband and wife subsequent to an offense by one of the spouses, which is a ground for divorce, operates as a condonation of such offense.” But that was a case in which the requirements for condonation set forth in the
Norman
case more than met the correct rule as stated in the latter case, that is, there must be unequivocal
intent' to forgive
and
to resume
marital relations. The actual resumption of marital relations not being a prerequisite to condonation, plaintiff’s letter of November 11, 1946, being strongly conciliatory in terms, evidences an unequivocal intent on plaintiff’s part to forgive defendant’s cruel and inhuman treatment and to resume marital relations with defendant. The letter reads, in part: “Seriously — I am coming home * * *. I am hoping you still want us to come home. * * * I have already forgiven you, but she [plaintiff’s mother] hasn’t.”; and concludes “Billy Jean sends her love. Love, Jean.” It is hard to imagine how plaintiff could have worded her intent to forgive the alleged acts of cruelty on defendant’s part and to return to defendant’s home in stronger language. In this connection the acts of coition, of course, must be taken into consideration, though in the instant case they may not be given much weight, if it is true, as plaintiff says, that defendant told her that such acts
would not prevent her obtaining a divorce. Be that as it may, we are of opinion that defendant has fully established his defense of condonation, and that the trial chancellor’s finding on this question, though entitled to great weight
(Maxwell
v.
Maxwell,
75 W. Va. 521, 84 S. E. 251), is not supported by the evidence.
Therefore, the decree of the trial court is reversed in so far only as it awards plaintiff a divorce from defendant, and awards alimony to plaintiff. In all other particulars the decree is affirmed.
Affirmed in -part; reversed in part.