CHARLESTON.

#### Gladys Webster Roberts *v.*Bayard McClean Roberts

(No. C. C. 337)

Submitted January 20, 1925.

Decided May 19, 1925.

*Divorces*— Misconduct *by Plaintiff, Occurring After Institution of Suit, and Constituting Cause for Either Absolute or Limited Divorce, May be Set up as Counterclaim, or Alleged in Cross-Complaint.*

Any misconduct on the part of the plaintiff in a divorce proceeding which is a cause for either an absolute or limited divorce may be set up as a counterclaim or alleged in a cross complaint as ground for affirmative relief, although it occurred after the institution of the suit.

(Divorce, 19 C. J. § 305).

Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.

Certified Questions from Circuit Court, Marshall County.

Suit by Gladys Webster Roberts against Bayard McClean Roberts for divorce, in which defendant filed an answer in the nature of a cross-bill. After overruling the motion to *205'dismiss tbe answer and demurrer thereto tbe court certifies questions under Code, c. 135, § 1.

*Rulings affirmed.*

*Chas. A. Showacre,*lor defendant.

Litz, Judge:

Tbe plaintiff, G-ladys Webster Roberts, filed ber bill at February rules, 1921, alleging cruelty, desertion and adultery on tbe part of defendant, Bayard McClean Roberts, and praying for an absolute divorce, alimony and tbe custody of tbeir infant child. Nothing further was done in tbe suit until January 10, 1924, when tbe defendant filed bis answer in tbe nature of a cross bill, denying tbe charges contained in tbe bill, charging tbe plaintiff with having committed adultery since tbe institution of tbe suit, and praying for an absolute divorce and custody of tbe child.

October 3, 1924, a motion to dismiss tbe answer and demurrer thereto were overruled; and upon tbe joint application of tbe parties tbe following questions were certified, under section 1, chapter 135, Code:

(1) “ Whether process was required on tbe answer and cross-bill. ’ ’

(2) Whether tbe defendant may take advantage of tbe alleged adultery of plaintiff, committed since tbe institution of tbe suit, as a ground for affirmative relief.

Tbe record as presented showing tbe appearance of plaintiff to tbe answer and cross-bill, tbe first question, if proper upon certificate, need not be considered.

On tbe second question, we are of opinion that tbe circuit court ruled properly in bolding that tbe answer set up proper ground for affirmative relief. In *Martin*v. *Martin,*35 W. Va. 695, an absolute divorce was granted defendant on tbe ground of three years willful desertion, which matured during tbe pendency of tbe suit. “Any misconduct- which is a cause for either an absolute or limited divorce may be set up as a counterclaim or alleged in a cross complaint as a ground for affirmative relief, although it occurred after tbe institution of tbe suit. ” 19 C. J. *117; Wilson*v. *Wilson,*
      *20640 Iowa 230; *Neddo*v. *Neddo,*56 Kans. 570, 44 Pac. 1; 9 R. C. L. 423. In *Von Bernuth*v. *Von Bernuth,*76 N. J. Eq. 487, 74 A. 700, 139 Am. S. R. 784, citing our case of *Martin*v. *Martin, supra,,*it is stated: “The obvious reason (for the rule) is that it is absurd that the defendant should be involved in two suits embracing the same facts and be compelled to prove them, first, as a defense, and secondly, as a 'ground for affirmative relief; and further that this court having once rightly obtained jurisdiction over the parties and the subject matter of the litigation, will proceed to heár the whole case, and measure out justice to the parties once for all on the facts alleged and proved”.

In the case of *Ames*v. *Ames,*178 N. Y. S. 177, it is held that in an action for divorce on the ground of adultery the court may permit the defendant to plead as a counterclaim, as well as a defense, by supplemental answer, acts of adultery committed by the plaintiff since the action was begun. In the opinion, quoting from *Blanc*v. *Blanc,*67 Hun. 384, 22 N. Y. S. 264, it is said, “Public policy, the interests of society and of the litigants, alike demand that the rights of the parties should be determined in a single action, unless by so doing some statute or rule of procedure settled by reported cases is violated”.

Under section 35, chapter 125, Code, a defendant in a suit in equity may “in his answer allege any new matter, constituting a claim for affirmative relief in such suit against the plaintiff or any defendant therein, in the same manner and with like effect as if the same had been alleged in a cross-bill filed by him-therein”.

The ruling of the circuit court is

*Affirmed.*