Miller v. Miller

HornEy, J., delivered the opinion of the Court. The sole question presented by the appeal in this divorce proceeding is whether the separation agreement of the parties was a voluntary one. After a relatively happy married life of more than thirty years, the husband became infatuated with a woman who lived across the street and began spending more time with her than with his wife. Both before and after the wife thought she had positive proof of the adulteries of her husband, she made every ²³⁹ effort to “forgive and forget,” but he would not give up his relationship with the other woman.

When conditions became so intolerable that the wife could no longer bear them, she filed suit for alimony on the ground of adultery and served notice of her intention to take the deposition of the husband’s paramour. When an effort to induce the husband to move out of the marital home and maintain a separate residence for six months to afford him an opportunity “to come to his senses” was not successful, the parties and their respective counsel met for the purpose of negotiating a separation agreement and property settlement. Although it was suggested, during the negotiations, that the wife had ample evidence to obtain an immediate divorce on the ground of adultery instead of waiting for the expiration of the statutory period when either party could obtain the divorce on the ground of voluntary separation, the parties agreed to resolve their difficulties by way of a voluntary separation and property settlement agreement. Therein the wife waived the payment of alimony and it was agreed that the joint property of the parties should be divided between them, with the wife taking the larger share.

One of the recitals in the agreement stated that the parties had “voluntarily agreed to separate” and a concluding covenant stated that the agreement was “prepared by and with the advice of their respective counsel”; that the agreement embodied “the full and complete understanding” of the husband and wife; and that the agreement was in lieu of any agreement, verbal or written, theretofore entered into between the parties. Upon the execution of the separation agreement, the suit for separate maintenance was dismissed with prejudice. After the expiration of more than two years, the bill for divorce filed by the husband, alleging that he and his wife had voluntarily lived separate and apart, without cohabitation for eighteen consecutive months prior to the filing of the bill and that such separation -was beyond any reasonable expectation of reconciliation, sought a divorce a vinculo matrimonii from his wife. The wife, answering the bill, denied that the parties had voluntarily separated.

According to her attorney, the wife never told him that she did not want to enter into the separation agreement. Nor did ²⁴⁰ she ever inform her husband (or his attorney) that the separation was other than voluntary. She testified, moreover, that she executed the agreement on the advice of her counsel and that the agreement was still in effect, but insisted that she never accepted that part of the agreement which recited that she and her husband had voluntarily agreed to separate. When asked at the taking of her pretrial deposition whether she voluntarily agreed to separate from her husband, she replied in the affirmative, but when she was asked the same question at