A married woman, separated from her husband, seeks to exclude the latter from the custody of the two children of the marriage; one a girl, now four years and nine or ten months old, and the other a boy, now about two years and ten months old. The allegations of the petition are, that the husband is intemperate, is wasting his own and his wife’s estate, has beaten his wife and the older child, threatened farther abuse of bis wife, admitted adulterous intercourse with one or more women, used profane language in the presence of his wife and children, and, in fits of intoxication, broken his furniture; and that such conduct had compelled the
The defendant denies all the. charges impugning his conduct as husband and father; and his answer, which is sworn to, casts upon the complainant the onus of sustaining those allegations by two witnesses, or by one With, corroborating circumstances; for there is no waiver of an answer o'n“oath.
The accusation that the defendant had beaten his wife, is nnsustained; for the only witness who proves that he ever struck her, so testifies as to clearly indicate that he did nothing more than to slap his wife in a laughing and playful mood, or fas the witness expresses it) “ in fun,” and not in a rude or angry manner.
[2.J Nearly fifty witnesses are examined upon the subject of the defendant’s intemperance. A careful examination of this immense mass of evidence convinces us that the defendant was in the habit of drinking freely, and in a few instances to inebriation; but that his drinking had not been carried sufficiently far to disqualify him for business, or materially to interfere with his business habits, or to make his association dangerous to his wife and children, or so pernicious to the latter as to authorize the taking away the custody of them.
The witnesses whose testimony seems designed to prove the commission of adultery by the defendant are Sheffield, Singletary, Bowen and Merriman. The first of those witnesses is shown by competent testimony to be unworthy of belief, and his evidence is itself improbable, and, if true, places him in a very degraded position. ' The witness Singletary is contradicted by.three witnesses in material particulars. Bowen proves merely a jocular reply of defendant to a question of his wife, as to what he intended to do with his money in Mobile, which is entitled to no consideration as evidence of defendant’s guilt. What we have said leaves-the imputation of adultery to rest upon a loose remark made to Merriman, the witness. This witness is contradicted by ITobbs as to one of his statements, and the testimony of Sarah Bryan also
While the defendant must stand vindicated from the grosser charges made against him, yet it must be said to his discredit, that his language to his wife and about her has not been characterized by refinement or delicacy, but was often rude, harsh, and indecorous.
[3.] Section 2006 of the Code gives the chancery court jurisdiction over the custody and control of children, as between tíre father and mother, in cases of voluntary separation. This section differs from the old law, (Clay’s Digest, 171, § 20,) in confining its operation to cases of voluntary separation. — Cornelius v. Cornelius, 31 Ala. 479.
[4.] The equity of this proceeding is not maintainable under that statute. The separation here is neither actually, nor in point of law, voluntary. The separation was against the husband’s wishes, and in despite of his request. There may be a voluntary abandonment by the complainant of her husband, but there is not a voluntary separation. The statute contemplates a separation with the assent of both parties. It may be that the law would regard a separation as voluntary, implying the husband’s consent, when his conduct was such as to justify his wife in leaving him. The facts here do not afford such justification to the wife. There is no correct view of the married relation, which will authorize a wife to leave her husband, and place both him and herself in the “ undefined and dangerous situations of a husband without a wife, and a wife withouta husband,” merely on account of such rudeness of language, indelicacy of expression, grossness of manners, and disrespectful bearing, as may appear from the evidence in this case to have characterized the conduct of the defendant. — People v. Mercein, 8 Paige, 46 ; Evans v. Evans, 2 Haggard, 35. However hard it may be to endure such conduct, and however we may sympathize with and desire to relieve one subjected to it, the hardships of individual cases must be borne, and sympathy for
It is a question mooted in this ease, whether the law will, under any circumstances, interfere in favor of the wife in reference to the custody of the children, when she has abandoned him without a legal justification. We cite some authorities in reference to that question, and leave it undecided. — DeManneville v. DeManneville, 10 Ves. 52; Forsyth on Infants, 21; People v. Mercein, 8 Paige, 46. But it is to our minds clear, that the court ought to hesitate long before it would interfere in behalf of a wife who has separated herself from her husband without his consent, and without adequate causes. The common love for the common offspring, and the common desire for their society, constitutes a strong tie between married people, and contributes to the steadfastness of the relation. This cohesive influence would be lost, if the unauthorized character of a separation is not regarded in disposing of the custody of the children.
• [6-7.] As the equity of this proceeding can not be main-
We are not sure, that a part, if not all the costs in this case, ought not to have been imposed upon the husband; but if there be an error as to the costs, that is the only error in the case, and the established rule does not permit us to reverse a decree for an error of the chancellor as to the costs alone. — Randolph v. Rosser, 7 Port. 49.
In deciding this case, we have looked to the testimony in the record of the other case between the same parties, without deciding that there was such an agreement as would authorize us to do so, because in the absence of the evidence the result would have been the same, and -¶& desired to settle the controversy on its merits.
The decree of the chancellor must be affirmed.