supreme court of appeals of virginia

IN THE

Supreme Court of Appeals of Virginia AT RICH~iOND

Record No. 6864

VIRGINIA:

In the Supren1e Court of Appeals held at the Supreme Court of Appeals Building in the City of Richmond on Tuesday the 9th day of January, 1968.

JULIA F. BOSWELL, Appellant,

a.gainst

ROY H~ BOSWELy, Appellee.

Frmn the Circuit Court of Alleghany County EarlL. Abbott, Judge

Upon the petition of Julia F. Bosw~ll an appeal is awarded her fro1n a decree entered by the Circuit Court of Alleghany County on the 7th day of July, 1967, ·in a certain chancery cause then therein depending, wherein the said petitioner was plaintiff and Roy II. Boswell was defendant; upon the petitioner, or some one for her, entering into bond with sufficient security before the clerk of the said circuit ~ourt in the penalty of $300, 'vith condition as the law directs.

2 Supreme Court of Appeals of Virginia

RECORD

page 1 ~

BILL FOR DIVORCE

Your Cmnplai:Qant, Julia F. Boswell, 1nost respectfully represents unto the Court the following facts and circumstances, praying equitable jurisdiction and relief:

1. I-Ier maiden name 'vas Julia F. Campbell. 2. On the date of August 5, 1948, they were lawfully united

in marriage at Clifton Forge, Virginia, as will more fully and at large appear from a certified copy of the marriage license and certificate herewith filed and by this reference 1nade a part of this Bill, kno'vn as Exhibit "A".

3. They are n1embers of the 'vhite race; they are over the age of twenty-one years; and neither is in the naval or mili

tary service of the United States of America. page 2 ~ 4. Alleghany County, State of Virginia, is the

last place they lived together as n1an and ~vife and both have been actual bona fide residents of and dmniciled ·within the County of Alleghany, State of Virginia, for more than one year next preceeding the con1mencement of this suit.

5. No children were born to the 1narriage. 6. Your Con1plainant alleges that she and the defendant

have lived separate and apart without any cohabitation and without interruption since the date of l\!Iarch 25, 1965.

7. On the date of 1\{arch 25, 1965, and on many occasions prior and subsequent thereto, the defendant co1n1nitted adultery with a white female by the name of }.{adge Peters; your Cmnplainant alleges she has not pardoned or condoned the offenses in any n1anner; the adultery was not brought about by her procure1nent or connivance; and five years have not.elapscd since the cmn1nission thereof.

8. In the year of 1965, the defendant, Roy I-I. Boswell, instituted a suit against her for divorce in the Circuit Court of Alleghany County, Virginia; she responded to his Bill of Complaint an~ filed an Amended Cross Bill seeking a divorce from him. By a d-ecretal order entered in that

Julia F. Boswell v. Roy H .. Boswell 3

cause on January 17, 1966, she and the defendant were refused a divorce, but the Court did order and direct the defendant to provide her with support and 1naintenance in the an1ount of T.wo IIundred Fifty Dollars ($250.00)- per nwnth.

Attached hereto and made a part hereof, known as page 3 r Exhibit "B" is a certified copy of the decretal

order that 'vas entered in such cause. Your Complainant does allege she is entitled to support and maintenance from the defendant in the arnount set forth and directed by the dee1·etal order aforesaid .

. WHEREFORE, your Complainant prays she may have and receive an absolute divorce frmn the defendant and the bonds which were created by the rnarriage may be dissolved; the defendant may be compelled to pay her costs in this proceeding, including a reasonable counsel fee; and he may be cmnpelled to provide her with temporary and pennanent alimony in the amount .directed and provided for in the decretal order aforesaid.

And your Complainant 'viii ever pray, etc.

\V. P. COLE~IAN, p.q. 20 vV est 1Vashington St. Lexington, Virginia

JULIA F. BOSvVELL

By 1V. P. COLE~IAN Jier Counsel

Filed in the Clerk's Office the lOth day of May, 1967.

Teste:

page 8 r

F. E. DILLARD, Clerk ~L BOSSERMAN, D. C.

ANS"\VER AND CROSSBILL

Roy II. Bos,vell, by this his answer and crossbill sets forth the following:


1) He believes the allegations as set forth in paragraphs (1) to (6), inclusive, of the Bill of Complaint to be true and correct.

2) He denies the allegations as set forth in paragraph (7) thereof.

3) The allegations as set forth in paragraph (8) thereof are essentially correct, except he denies that Julia F. Boswell is entitled to alimony in the future because:

(a) This court, by its adjudication as set forth in the decree of January 17, 1966, in the chancery cause of Roy H. B.oswell, Complainant, vs. Jttli.a, F. Boswell, ]Jefendant, held that the said Julia F. Boswell wilfully deserted and abandoned him on March 25, 1965-which 'vas the date that the parti.es'hereto last cohabited as husband and wife. Therefore, notwithstanding th~ fact that by the same decree he was held to be guilty of 'vrong doings (which he has always denied and now denies), such findings against him were for alleged acts committed after Julia F. Boswell had 'vilfully deserted and abandoned him. Since Julia F. Boswell is adjudged to be the original wrongdoer, she is not entitled to alimony, but has forfeited her right to same.

(b) The said Julia F. Boswell is a relative]y young and vigorous person fully capable of providing· for her

page 9 ~ maintenance and support. However, since having been awarded alinwny by the said decree of Feb

. ruary 17, 1966, she has made no effort to secure gainful employment and has performed no 'vork of any sort as far a~ the defendant is advised. ·

WHEREFORE, this defendant prays that he may be granted an absolute divorce from the defendant, upon the ground of continuous· separation for a period of two years, and that he may be relieved from the payment of any further alimony to the said Julia F. Bos,vell.

And in duty bound he will ever pray, etc.

ROY H. BOS\VELL

By R. B. STEPHENSON, JR. Of Counsel

*

Received : 5-15-67.

F. E. DILLARD, Clerk·

Julia F. Boswell v. Roy H. Boswell 5

page 10 ~

ANS,VER TO CROSS BILL

* *

This day con1es the Complainant, Julia F. Boswell, by counsel, and files this, her Answer, to a Crossbill exhibited against her in that cause pending in the Circuit Court of Alleghany County, Virginia, wherein she is the Complainant and Roy H. Boswell is the defendant; and in support thereof, she does allege as follows:

1. All of the allegations of the Crossbill in conflict with the allegations contained 'vithin the Bill of Complaint are expressly denied.

2. Since she first filed a suit for divorce against the defendant alleging his adultery and continuous separation for two years, she does allege she is the party entitled to an absolute

divorce. The adultery of the defendant not only page 11 r occurred on March 25, 1965, but it occurred prior

and subsequent to such date. 3. The defendant has filed a plea indicating he is not

obligated unto the Cmnplainant for support and maintenance. The Complainant does allege the provisions of the decretal order of January 17, 1966, are res adjudicata and affords an estopzJel and he cannot contest the Court's allo,vance of alin1ony and support for the benefit of the Complainant. The matter has been decided; it is conclusive and there is no way the Court's detern1ination in that respect can now be attacked.

And now having responded, the Cmnplainant prays to be hence dismissed 'vith costs.

,V. P. COLEMAN, p.q. 20 'Vest 'Vashington St. Lexington, Virginia

Filed May 19, 1967.

•

JULIA F. BOS,VELL

By W. P. COLE~fAN Her Counsel

• •

F. E. DILLARD, Clerk


page 12 ~

• • •

PLEA OF RES ADJUDICATA AND ESTOPPEL

This day comes the Complainant, Julia F. Boswell, by counsel, and files this, her plea of Res Adj'U.dicata and Estoppel to the Cross Bill of the defendant filed against her in the Circuit Court of Alleghany County, Virginia, wherein she is the Complainant and Roy H. Boswell is the defendant; and in support thereof, she does allege as follo,vs:

In the decretal order of January 17, 1966, it was decreed in a suit between the parties that neither was entitled to a divorce but in adjudicating that neither were entitled to a divorce, the Court awarded alimony unto the Complainant in the amount of Two Hundred Fifty Dollars ($250.00) per month. Since then, the defendant has abided by such decretal order. He did not appeal therefrom and the Court's findings

in such respect beca1ne binding and forever depage 13 ~ termining in any subsequent cause or causes that

may have involved or do involve the same parties. And now having filed her plea of Bcs Adj~~,dicata andEs

toppel, the Complainant prays to be hence dismissed.

•

Filed May 19, 1967.

page 14 ~

•

•

•

J"ULIA F. BOS"\VELL

By "\V. P. COLEMAN I-ler Counsel

• * •


• • •

FINAL DECREE

This cause which has been regularly rnatured, set for llearing and docketed, came on this day to be heard upon the bill of complaint; upon the answer and cross bill filed by the defendant; upon the answer to the cross bill filed by the complainant; upon the plea of ·res adjudicata and estoppel


filed by the complainant; upon evidence heard ore ten.u._r:; in the presence of both parties and their respective counsel; and was argued by counsel. ·

And it appearing to the Court from the evidence duly corroborated, independently of the admissions of the parties, or either of them, as follows :

That both the complainant and the defendant, at the time of the institution of this suit, were domiciled in and were and had been for more than one year immediately prior thereto actual bona fide residents of the Common,vealth of Virginia; that they last cohabited as husband and 'vife in Alleghany County, Virginia, on ~{arch 25, 1965; that they were lawfully married in the City of Clifton Forge, Virginia, on August 5, 1948; that they are members of the Caucasian race; that they are both s~ti juris; that no children were born of said marriage; that the parties have lived separate and apart without any cohabitation and without interruption for

more than two years; that a reconciliation is impage 15 ~ probable; and that each party is entitled to be

divorced from the other. It is accordingly ADJ-UDGED, ORDERED and DE

CR.EED that each party hereto is hereby a'varded a divorce a vinculo 1natrimo-nii (from the bonds of matrimony) from the other party upon the ground that they have lived separate and· apart 'vithout any cohabitation and without interruption for more than two years-they having last lived together as husband and wife on ~larch 25, 1965.

And the Court having heretofore adjudicated, among other things, by its decree of January 17, 1966, in the chancery cause then pending in this Court, the style of which is Roy I-I. Boswell, Complainant vs. Julia F. Bos,vell, Defendant, that the complainant herein, J nlia F. Boswell, "did desert the complainant (Roy I-I. Boswell) on March 25, 1965"; and the Court being of the opinion that since the said Julia F. Boswell was a 'vrongdoer and contributed to the dissolution of said 1narriage, that she, under the law of this common,vealth, has forfeited any right to support, maintenance and alimony at the hands of her husband, it is further ADJUDGED, ORDERED and DECREED that the complainant's application for alimony is hereby denied; to 'vhich ruling by the Court in denying the complainant alimony the cmnplainant, by counsel, excepts.

ENTER: July 7, 1967.

EARLL. ABBOTT, Judge


•

page 16 }

•

DECRETAL ORDER

'l~his day came the Complainant, Julia F. Boswell, by counsel, and indicated she intended to appeal to the Supreme Court of Appeals from the final order entered in this cause on July 7, 1967, and moved this Court to make a part of tlie record in this suit an attested copy of the entire record in the decided chancery cause of Roy H. Boswell v. Julia F. Bos'vell, such cause being arnong the decided ones of this Court with the final decree having been entered on January 17, 1966, upon the ground the Court in its final decree in this cause of date of July 7, 1967, took judicial notice of the record in such cause; it is therefore

ADJUDGED and ORDERED, that an attested copy of the entire record in the chancery cause of Roy I-I. Boswell v.

Julia F. Bos,vell, be, and the same is hereby made page 17 } a part of the record in this cause.

ENTER: Date July 17,1967.

page 19 }

VIRGINIA,

•


IN THE CIRCUIT COURT OF ALLEGHANY COUNTY ROY H. BOSWELL, Gontpla.ina.nt VS: JULIA F. BOSWELL, Defendant Seln1a, Virginia

BILL OF COJ\IPLAINT

TO: THE IIONORABLE EARL L. ABBOTT, JUDGE OF SAID COURT:

Your complainant, Roy H. Boswell, respectfully represents that he is an actual bona fide resident of and domiciled in


Alleghany County, Virginia, and l1as been an actual bona fide resident of and domiciled in Alleghany County, Virginia, for at least one year preceding the co1nmencement of this suit.

1) That the con1plainant and defendant 'vere lawfully married in Clifton Forge, Virginia, on August 5, 1948, as shown by the marriage certificate hereto attached and made a part of this Bill.

2) That both parties are members of the white ra~e and no children "Tere born of this union.

3) That the defendant 'vas guilty of cruelty and constructive desertion as of Niarch 25, 1965, in forcing the complainant to leave, but the cmnplainant in order to protect his business returned and again in J nne, 1965, the sa1ne condition existed and your complainant left and stated that he could not operate the business unless the defendant moved out, which

she did, but shortly thereafter she told your conipage 20 ~ plainant that her brother was seriously ill and

your complainant kne'v this to be a fact and that she wanted to cmne back and that she would leave 'vhenever your cornplainant requested. Your cornplainant states that since then the defendant has been living in one roon1 in the rear of the store and your con1plainant has been living in another romn but that they have not Jived together.

4) Your cmnplainant states ·that the defendant is continually and at all ti1nes interfering with the business, extreinely disagreeable, cutting off the help and discussing her personal affairs W'"ith the custmners and causing general trouble at all ti1nes to such an extent that your complainant's health js being rnaterially ilnpaired.

5) Your con1plainant further states that there is no senlblance of nmrried life between the1n.

\VIf.JijREFORE, your cmnplainant prays that he be granted a divorce from the defendant on the grounds of cruelty and desertion and that the defendant be enjoined from interfering with the business in any 1nanner whatsoever and from cmning into the place of business.

By Counsel

HALE~ COLLINS WILLIAl\{ T. \VILSON Counsel for the Complainant


• •

Filed in the Clerk's Office the 15 day of July, 1965.

Teste:

page 21 ~ VIRGINIA

F. E. DILLARD, Clerk ~I. BOSSERMAN, D.C.

IN THE CIRCUIT COURT OF ALLEGHANY COUNTY

ROY H. BOS"\VELL, Contplainant VS: JULIA F. BOSWELL, Defendant

TO: JULIA F. BOSWELL SELMA, VIRGINIA

NOTICE

Take Notice that I will at 10:00 a.m. on the 20th day of July, 1965, at the Courthouse in Covington, Virginia, move the Circuit Court of Alleghany County, Virginia, to enjoin you from going on or in the premises of the "Boswell Steak House" and from interfering in any manner whatsoever with the complainant or any employees in said restaurant or interfering with or molesting in any 1nanner whatsoever any customers of said business and will ask the Court to have you vacant the room which you are no'v holding in this building.

Given under my hand this the 19th day of July,.1965.

ROY H. BOS,VELL

By Counsel

HALE COLLINS WILLIAM T. WILSON Counsel for the Complainant

Executed on the 19 day of July 1965 in Alleghany County, Virginia, upon the within named Julia F. Boswell at her


usual place of abode by tacking a true copy of the within written notice; upon the door of her residence, the said Julia F. Boswell being absent from her usual place of abode.

l\1. vV. SV\700PE Sheriff' Alleglwny Cottnty

R. L. "\VILLIAl\iS Deputy Sheriff Alleghany Cownty

Copy-Teste :


page 22 ~ VIRGINIA:

IN THE CIRCUIT COURT OF ALLEGHANY COUNTY:

ROY H. BOS,VELL VS: JULIA F. BOS,VELL

COJ.llPLAINANT

DEFENDANT

ANS,VER TO BILL OF COMPLAINT AND CROSS BILL

TO: ~rHE I-IGNORABLE EARLL. ABBOTT, JUDGE OF SAID COURT:

Your defendant, Julia F. Boswell, files this her answer and grounds of defense to the bill of complaint files in the above styled cause :

1) Your defendant alleges that the allegations contained in Paragraphs (1) and (2) of said bill of complaint are true in and so far as your defendant is advised.

2) Your defendant expressly denies the al1egations contained in Paragraphs (3), (4) and (5) in said bill of complaint and specifically denies that she is guilty of cruelty and constructive desertion and denies that she interfers with the business operated by the complainant and defendant.

'VlfEREFORE, your defendant prays that the bill of complaint be dismissed, and that the prayers contained therein be denied.

And now having fully answered said bill of complaint, your defendant files this her cross bill and respectively represents unto your Honor as follows:

12 Supren1e Court of Appeals of Virginia

(1) Your defendant incorporated by reference Paragraphs (1) and (2) of said bill of cotnplaint as fully as if said paragraphs and allegations were set out herein in ex

tenso. page 23 ~ (2) Your defendant alleges that the c01nplainant

is guilty of desertion and extreme ct·uelty, and that the said desertion was against the will of your defendant and 'vithout justification, and that the many acts of extreme cruelty committed by the complainant against your defendant were without provocation; that the said desertion has continued uninterrupted since June, 1965, and that it is improbable that your co1nplainant and defendant will ever live together again as 1nan and 'vife.

WHEREFORE, your defendant prays that she n1ay be granted a divorce a nwnsa. et t·horo upon the, grounds of desertion andjor cruelty, which said divorce rnay be later merged into a divorce .a vin.c~t.lo 1natrin~onii; that she may be awarded alimony, support and Inaintenance and that the complainant be enjoined fr01n selling, transfering and disposing of any of his real or personal estate until further order fron1 the Court.

Your defendant prays that she 1nay have such further relief, both general and special, as to equity shall see1n n1eet.

And she will ever pray, etc.

JULIA F. BOSvVELL

By Counsel

STEPI-IENSON, l(OS1,EL, 'YATSON & CARSON 316 Cointnercial Avenue Clifton Forge, Virginia

I hereby certify that I have this day nmiled a copy of the foregoing AnswPr and Cross Bill to llale Collins, Counsel for the Con1plainant at his law office in Covington, Virginia, on this 5th day of August, 1965.

GEORGE J. KOSTEL Of Counsel for Defendant

Copy Teste: [SEAL]

Filed Aug. 6, 1965. F. E. DILLARD, Clerk

Copy Teste: F. E. DILLARD, Clerk


page 24 ~ VIRGINIA:

IN THE CIRCUIT COURT OF ALLEGifANY COUNTY:

ROY H. BOSvVELL VS: JULIA F. BOS,YELL

COil/PLAIN ANT

DEFENDANT

A~IENDED CROSS BILL

TO: TI-lE I:IONORABLJ~ EARL L. ABBOTT, JUDGE OF SAID COURT:

Your defendant files this her amended cross hill and respectfully represents unto your Honor as follows :

( 1) Your defendant incorporates by reference Paragraphs (1) and (2) of said hill of complaint as fully as if said paragraphs and allegations were set out herein in extenso.

(2) Your defendant alleges that the complainant is guilty of desertion and extreme cruelty, and that said desertion was against the 'vill of your defendant and without justification, and that the many acts of extreme cruelty co1n1nitted by the complainant against your defendant were without provocation; that the said desertion has continued uninterrupted since June, 1965, and that it is in1probable that your complainant and defendant 'vill ever live together again as man and 'vife.

(3) Your defendant alleges that the co1nplainant is guilty of adultery on July 29, 1965 'vith ~Iadge Peters at the Triangle l\iotel, in Alleghany County, Virginia; on August 21, 1965, with ~tladge Peters at a cottage on the Cowpasture River, in Alleghany County, Virginia; and on August 27, 1965 with ~Iadge Peters at a cottage on the Cowpasture River, in Alleghany County, Virginia.

"\VHEREFORE, your defendant prays that she page 25 ~ rnay be granted a divorce a vinculo 'matrintoni-i;

that she 1nay be awarded alimony, support and maintenance; that the co1nplainant be enjoined frmn selling, transferring and disposing of any of l1is real or personal estate until further order from the Court; and that the cmnplainant be required to pay the counsel for the defendant a reasonable attorney's fee.


Your defendant prays that she may have such further relief, both general and special, as to equity shall seem meet.

And she will ever pray, etc.

JULIA :B,. BOSW,ELL

By Co1msel

STEPHENSON, l(OSTEL, \VATSON & CARSON Counsel for the defendant 316 Commercial A venue Clifton Forge, Virginia

I hereby certify that I have this day mailed a copy of the foregoing amended cross bill to Hale Collins, Counsel for the complainant at his law office in Covington, Virginia, on this 24th day of November, 1965.

GEORGE J. KOSTEL Of Counsel for Defendant

Filed Nov. 26, 1965.

Copy Teste:

page 26 ~ VIRGINIA


[SEAL]


IN THE CIRCUIT COURT OF ALLEGHANY COUNTY

ROY H. BOSWELL Complainant vs. JULIA F. BOSvVELL Defendant

Al\!ENDED ANSV\TER OF DEFENDANT

This day comes the Defendant, Julia F. Boswell, by counsel, and files this her Amended Answer to a Bill of Complaint exhibited against her in the Circuit Court of Alleghany County, Virginia, by Roy I-I. Bos·well, the Complainant, and in support thereof she does allege as follows:


1. She admits the Complainant, Roy H. Boswell, is a bona fide resident of and domiciled in .Alleghany County, State of Virginia, and she admits that he has been an actual bona fide resident of and domiciled in Alleghany County, State of Virginia, for more than one year next preceding the commencement of his suit.

2. She admits the allegations contained within numbered paragraph 1 of the Bill of Complaint.

3. She admits the allegations contained within numbered paragraph 2 of the Bill of Complaint.

4. She does deny the allegations contained within numbered paragraphs 3, 4 and 5 of the Bill of Complaint.

5. She does allege that she and the Complainant page 27 ~ lived together as man and wife in Alleghany

County, State of Virginia, until the date of" July 16, 1965, at which time and on which date the Complainant did unlawfully, ·willfully and without just cause or excuse, desert and abandon her.

6. She further alleges that on and prior to the date of July 16, 1965 the Complainant was extremely cruel and abusive to her. She does allege that on many occasions he inflicted bodily harm upon her, he used vile and profane language to and about her, he struck her \Vith his hands and fists, and conducted himself in a most cruel and inhuman manner, as a result of all of which she has become and is emotionally upset, sick and disordered. At the present time she is under the care of a physician or physicians for her condition.

7. She further alleges that on the date of July 29, 1965, August 21, 1965, August 27, 1965, on sundry and various dates previous thereto, and on various and sundry occasions since such date, the Complainant has committed acts of adultry \Vith a white female by the name of Madge Peters. She alleges she has not pa1·doned or condoned his offenses, the adultry \vas not brought about by her procurernent or connivance, and she has in no way pardoned or condoned such offenses.

8. She further alleges the Complainant is a wealthy n1an in that his net worth rnay be stated to be in the neighborhood of SEVENTY ~..,IV1~ ~rFIOUSAND DOLLARS ($75,-000.00). lie has a vast earning capacity and he is able to provide the Defendant with support and n1aintenance. She

does allege that in this proceeding she not only has page 28 ~ the right to ask the Court to deny unto the Coin

plainant a divorce fron1 her, but that she has a right to sue for and to recover of and frorn the Cornplainant temporary and permanent alimony, support and maintenance.


vVHEREFORE, .the Defendant prays the relief prayed for in the Bill of Complaint may be denied, and she may have and rec.eive of and from the Con1plainant temporary and permanent alhnony, support and rnaintenance in an amount to sufficiently c.are for her, and that she 1nay recover of the Complainant her costs in this proceeding, including a reasonable counsel fee.

AND she will ever pray, etc.

W. P. COLEMAN, p.d. 20 vV. vVashington St. Lexington, Virginia

JULIA F. BOSvVELL

By W. P. COLEMAN :Her Counsel

On Jan. 2, 1966 I 1nailed a copy of the foregoing amended Ans,ver to Counsel of Record for the C01nplainant.

\V. P. COLElVIAN, p.d.

Filed Jan. 6, 1966.

EARL L. ABBOTT, Judge

[SEAL]

Copy Teste:


page 29 ~ VIRGINIA

IN TI-IE CIRCUIT COURrr OF ALLEGHANY COUNTY

ROY I-I. BOSWELL vs. JULIA F. BOSvVELL

FINAL DECRETAL ORDER

Tl1is cause can1e on to be heard on January 6, 1966, upon the Bill of Complaint filed in the Clerk's Office of this Court

· under the style of Roy I-I. Boswell vs. J nlia F. Boswell; upon

Julia F. Boswell v. Roy FI. Boswell 17

the Answer and Cross-Bill of Julia F. Bos,vell filed in such proceeding; upon the Amended Cross-Bill of Julia F. Boswell filed in such proceeding; upon the A1nended Answer of Julia F. Boswell filed in such proceeding; upon the appearance of the Cmnplainant, Roy H. Boswell, in person and by counsel before the Court; upon the appearance of the defendant, Julia F. Boswell, in person and by counsel before the Court; upon evidence heard ore ten~tS which was in the presence of and with the consent of the parties appearing before the Court as aforesaid; and was argued by counsel.

UPON CONSIDERATION 'VHl~REOF, and it appearing to the Court therefrom, the parties to this proceeding are

n1e1nbers of the white race; they were lawfully page 30 ~ united in marriage in Clifton Forge, Virginia on

August 5, 1948; they are over the age of hventyone years; neither is in the naval or n1ilitary service of the United States of A1nerica; Alleghany County, State of Virginia, is the last place they lived together as man and wife; both have been actual bon,.a fide residents of and dmniciled in the County of Alleghany, State of Virginia, for more than one year next preceeding the comrnencernent of this suit; no children were born to the n1arriage; the defendant did desert the Cmnplainant on l\Iarch 25, 19()5; the Complainant has committed the adultery alleged and set forth in the Answer, Arnended Answer, Cross-Bill and amended Cross-Bill of the defendant; neither party is entitled to a divorce frmn the other; the Court should direct the payment of counsel fees and the payment of support and maintenance unto Julia F. Boswell, the defendant; the Court should n1ake some disposition of the issue or issues with reference to the automobiles of the parties; and the Court should direct the defendant, Julia F. Boswell, to remove herself fron1 the premises known as the Boswell Steak I-Iouse; it is therefore

ADJUDGED, ORDERED and DECREED as follows: 1. A divorce be, and the san1e is hereby denied unto either

of the parties to this proceeding. 2. Roy I-I. Boswell, the Complainant, do pay unto George

Kastel, who at one time represented the defendant, a counsel fee of 'rhree Hundred Dollars ($300.00), such to be paid within a reasonable period of tilne fron1 and after this

date. page 31 ~ 3. The Complainant, Roy li. Boswell, do pay

unto the defendant, Julia F. Boswell, commencing as of this date support, maintenance and alimony in the an1ount of Two IIundred Fifty Dollars ($250.00) per month.

4. The Complainant, Roy H. Boswell, do sign and deliver


unto the defendant, Julia F. Boswell, the title to the Chevrolet automobile owned by Roy H. Boswell.

5. The defendant, Julia F. Boswell, do sign and deliver unto the Complainant, Roy H. Boswell, the title to the Cadillac automobile.

6. The defendant, Julia F. Boswell, do remove herself and her property from the pre1nises known as the Boswell Steak House on or before January 7, 1966, at 12:00 o'clock Noon, and that she not return thereto for any reason.

This cause being final, it is ORDERED retired frmn the docket of this Court and placed a1nong the decided causes thereof.

ENTER: Date Jan. 17, 1966.


page 32 ~

ASSIGN~1:ENTS OF ERROR

The complainant, Julia F. Boswell, 1uakes the follo,ving assignments of error to the said final decree of July 7, 1967:

1. The court erred in denying complainant, Julia F. Boswell, alimony from the defendant, Roy H. Boswell, upon the ground that she had forfeited her right to alimony, as held by the court, based upon a final decree of the court entered Jan nary 17, 1966, in another chancery cause styled Roy H .. Boswell, co1nplainant v. Julia F. Boswell, defendant, in 'vhich the court adjudged that Julia F. Bos,vell had deserted Roy II. Boswell on l\iarch 25, 1965 and that Roy H. Boswell had counnitted adultery on July 29, August 21 and 27, 1965 and on other occasions before and after said dates.

2. The court erred in overruling the Plea of Res .Adjudicata and Estoppel, of Julia F. Boswell, upon the ground that the $250.00 monthly support, maintenance and alimony a'varded the said Julia F. Boswell in the decree of the court entered January 17, 1966 in the aforesaid other chancery cause could

only be modified or ter1ninated upon a reinstatepage 33 } ment of the cause upon the docket of the court

and upon evidence sho,ving that a change of circumstances had occurred which justified such modification and ter1nination of alimony.


3. The court erred in conceiving the law of this Commonwealth to be that a wife adjudged guilty of desertion in a divorce suit brought by her husband for a bed and board decree constitutes a defense by way of recrimination to the proved and adjudged adultery of the husband in a cross-bill filed by the 'vife against the husband for a decree from the bond of matrimony.

4. The court erred in barring the complainant, Julia F. Boswell, who is adjudged guilty of desertion in a suit for divorce from bed and board brought by defendant, Roy If. Boswell, from any right to support, maintenance and alilnony, 'vhere said defendant, Roy H. Boswell, in the sa1ne suit on a crossbill filed by complainant, Julia F. Boswell, for a decree from the bond of rnatrimony, was adjudged to be guilty of adultery.

page 34 ~

JULIA F. BOS,VELL

By: \VILLIAM PATRICK COLE~fAN Lexington, Virginia

HARRY P. ANDERSON, .JR. 700 Building Richmond, Virginia Counsel for complainant

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Filed :May 31, 1967.

F. E. Dil.JLARD, Clerk

S'rATE~IENT OF F,ACTS AND OTHgR INCIDENTS OF THE HEARING

Pursuant to Rule 5.1, Section 3 (e) of Rule8 of Court, this is offered as part of tlu~ record in this cause in lieu of a transcript by a reporter, for the oral testinwny and other incidents of the hearing were not transcribed by a reporter.


1. On July 7, 1967, the above case was brought on for hearing and both parties by counsel answering they were ready to proceed and to put on evidence, the Court only considered evidence as to the separation of the parties for a period of more than two years following March 25, 1965. It thus appeared the parties had lived separate and apart since that date, there had been no cohabitation since then, and that their separation since March 25, 1965, had been without interruption.

2. The Court then ruled the parties were entitled page 38 ~ to a divorce upon the ground of having lived

separate and apart 'vithout any cohabitation and without interruption for two years. The only remaining issue to be decided by the court was 'vhether the complainant was entitled to alimony from the defendant.

3. The court did not hear evidence as to the guilt or innocence of the parties which rnay have affected the right of c01nplainant to be paid alhnony by the defendant, because, by agreement of both parties, the court took judicial notice of the pleadings, the untranscribed evidence heard by it, and the final decree entered January 17, 1966, in the cause in this court stvled Roy H. Boswell v. Julia F. Boswell.

4. After hearing argument of counsel, the court entered its final decree in this cause on July 7, 1967 .

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A Copy-Teste:

Ho,vard G. Turner, Clerk.

INDEX TO RECORD

Page

Appeal Awarded ............................................................................................................... 1 Record ............................................................ ,............................................................................. 2 Bill for Divorce.................................................................................................................. 2 Answer· and Crossbill of Roy H. Boswell................................................ 3 Answer to Crossbill by Julia F. Boswell................................................ 5 Plea of Res AdjuclMata and Estoppel......................................................... 6 ·Final Decree-July 7, 1967 ............................................ ,.......................................... 6 Decretal Order .................................................................................................... :............. 8 Exhibit-Record in the Chancery Cause of

Roy H. Boswell.v. Julia F. Boswell Bill of Complaint................................................................................................... 8 Notice of Complaint.......................................................................................... 10 Proof of Service...................................................................................................... 10 Answer to Bill of Complaint and Cross Bill........................ 11 Amended Cross Bill............................................................................................. 13 Amended Answer of Defendant. ........................................................... 14 Final Decretal Order-January 17, 1966.................................... 16

Assignments of Error ................................................................................................ 18 Statement of Facts and Other Incidents of the Hearing ...... 19

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