The bill in this case was filed by a husband against his wife, praying a divorce from the bond of matrimony on the ground of alleged desertion by the wife for a period exceeding five years. What purports to be an answer to the bill by the wife was filed, depositions were taken by both parties, and at the hearing of the cause there was a decree of
By the Code of 1873, ch. 105, jurisdiction of suits for annulling and affirming marriages, and for divorces from the bond of matrimony and from bed and board for causes specified, is vested in the circuit courts and (by subsequent statute) in the corporation courts, on the chancery side thereof.
Section 9 provides, “that such suits shall be instituted and conducted as other suits in equity, except that the bill shall not be taken for confessed; and whether, the defendant answer or not, the case shall be heard independently of the admissions of either party in the pleadings or otherwise,” and that “ costs may be awarded to either party, as equity and justice may require.”
Section 12 is in the following words: “ TJpon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further order as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody, and maintenance of their minor children, and may determine with .which of the parents the children shall remain; and the court may from time to time afterwards, on petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.”
It will be observed that the court, in the exercise of
The exercise of discretionary power by a judge to-whom it is confided is always more or less embarrassing, and what is said by an English writer, speaking of the British constitution and jurisprudence, applies as well to ours, that it is a principle consonant to the-spirit of our constitution, and which may be traced as pervading the whole body of our jurisprudence, that optima est lex quae minimum relinquit arbitrio judiéis, óptimas judex qui minimum sibi—that system of law is best which confides as little as possible to the discretion of the judge—that judge is the best who relies as little as possible on his own opinion. Broom’s Leg Max. 84.
Discretio est discerniere per legem quid sit justum, says; my Lord Coke, 4 Ins. 41, and “ discretion,” says Lord Mansfield, “ when applied to a court of justice, means sound [discretion guided by law. It must be governed by rule: it must not be arbitrary, vague and fanciful, but legal and regular.” Rex v. Wilkes, 2 Burr. R. 25, 39.
It is not an unlimited power, but in all cases, where by law, whether statute or common law, a subject is referred to the discretion of the court, that must be-regarded as a sound discretion, to be exercised according to the circumstances of each particular case. Daniel,. J., in Commonwealth v Wyatt, 6 Rand. 694, 700. And Judge Christian, speaking of the allotment of alimony, citing Bishop on Mar. & Div. and other authorities, says, “ that it is a matter within the discretion of the court. Tet it is not an arbitrary but a judicial discre
These principles must guide us in the inquiry we are about to make, whether the learned judge of the circuit court, in the exercise of the discretion with which the law invested him, has erred in decreeing maintenance to the appellee during her life out of her husband’s estate, after decreeing on his behalf a divorce from the bond of matrimony. Under the English ecclesiastical law as a part of the common law, the court, independently of the section (12) copied from the Code, could not have decreed any such allowance. Alimón}', or an allowance for the maintenance of the wife, was never decreed on a divorce a vinculo matrimonii. It was confined to divorces from bed and board, and was an incident of decrees of that character. It is plain, however, from the language of the section of the Code referred to, that the court may, in the exercise of its discretion, extend it to a decree of divorce from the bond of matrimony.
Alimony had its origin in the legal obligation of the husband, incident to the marriage state, to maintain his wife ,in a manner sifited to his means and social position, and although it is her right, she may by her misconduct forfeit it; and where she is the offender, she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty, he is under no obligation to provide her a separate maintenance, for she cannot claim it on the ground of her own misconduct. 2 Bish. on Marriage & Divorce, § 377; Carr v Carr, 22 Gratt. 168, 173.
B}' analogy, this rule should be applied to a case of a decree a vinculo matrimonii. In such case, maintenance
Assuming that the court in this case did not err in decreeing the divorce, it would seem to follow, on principle, that there should have been no allowance of maintenance to the wife; or if principle must be made to bend to circumstances, those circumstances must be very peculiar indeed, if any such there could be, which, justifying a decree for an absolute divorce in behalf of the husband for wilful desertion by his wife, would at the same time warrant a decree in her behalf that he should out of his own estate maintain her as long as she lived, although after the divorce she should become the wife of another.
The reason assigned in the decree for the allowance is, that although “ the desertion and abandonment as charged in the plaintiff’s bill is proven by the evidence, the same was not without the fault of the plaintiff.”
Without determining whether “the fault of the plaintiff ” would alone, in any case, be sufficient reason for making the allowance, if, on the evidence, the plaintiff was entitled to a divorce, let us look at all the circumstances of this case, and, “ upon an equita- . ble view,” see whether any or all of them _ combined would be sufficient to justify the allowance, and further, whether the alleged desertion was proven, for if it was not, the plaintiff’s bill should have been dismissed.
The answer to the bill was filed at rules. It does
The appellee resided in the town of W illiamsburg. It does not appear what her age was, but she is represented by one of the witnesses as “ apparently young, moderately handsome ”—“ moved in good society, and was an accomplished young lady.” She seems to have been poor. In response to a question concerning her estate, a witness said, “ I have always heard she had some interest in the estate of a relation of hers, but I saw nothing of it to my knowledge.”
She first made the acquaintance of the appellant about three months before the marriage, at the house of Mr. John M. Shelton, whither she came on a visit to her sister, who was teaching school in Shelton’s family, and, it is said, was well acquainted with the appellant, having known him for about two years. The parties were married at "Williamsburg and came at once to Helson, and after spending some eight or ten days at
The reasons assigned by her for leaving her husband’s house will be best stated in her own language ; and at the risk of being considered tedious, I shall copy from her answer to the bill. After speaking of the pleasant sojourn with her husband at th'e house of their mutual friend immediately after the marriage, during which their relations were agreeable and cor
I have given this full extract from the answer, because it presents specifically and in detail the only reasons alleged by the appellee for the abandonment charged in the bill. The bill charges briefly, that without fault of the plaintiff, the defendant “wilfully deserted and abandoned him and has not returned, and now resides and has for some time resided in the city of Rorfolk.” It is obvious, that very little of the answer is responsive to the allegations. Certainly, the specific statements of .the reasons for the
It is worthy of notice in this connection that the course of conduct attributed to the appellant and the specific facts which are made the ground of complaint ■are of such a nature as to be quite susceptible of proof; and if they existed as stated and escaped the observation of persons living in the neighborhood, some of whom testified in the case, still they must have been known to the 'sisters of the appellee, or to some of them, who seem to have been generally, one of them at least, constantly with the appellee from the time of her marriage until she left the appellant’s house; and-
The conduct of the appellant in forbidding the public to give the appellee credit on his account, may have been reprehensible; but separated from her, as he then was, and she being attended by three of her sisters, his penurious disposition .may have impelled him to this course, under apprehension, whether reasonable or not, that his credit might be used in the support of the three sisters. However that may be, the appellee does not in her answer assign this conduct as one of the reasons for the abandonment. On the • contrary, she says that after this “ a reconciliation was reached, the posters being withdrawn by the plaintiff and authority given to the public to sell (her) respondent as his wife such things as she might want. “ In
In the absence of all proof touching the only matters alleged by the appellee by way of excuse or justification for the abandonment of her husband, I confess I find nothing in the record that seems to warrant the assumption in the decree, that this abandonment was “not without the fault of the plaintiff.” lie may have been in fault. If he was, I can only say it is not shown. He was penurious, it is true. That is proved. But mere penuriousness is no excuse for desertion. If it extends to a persistent denial of necessaries, when he has the means to supply them, it may amount to cruelty, and be good cause for abandonment. 1 Bishop on Mar. and Div. § 735. It is not pretended that the appellant ever withheld from his wife anything that was needful for her sustenance and comfort, except that for a time, the occasion before alluded to, he forbade the public to credit her on his account, and this offence seems to have been condoned. It is not pretended that his house was not supjfiied with the requisite comforts and conveniences, for that is proved. It is not alleged that he ever spoke a harsh or unkind word to his wife, or treated her otherwise than kindly, except in his failure to maintain her authority in the difficulties she had with the negroes, and of that there is no proof. The only-matters of excuse or justification alleged for the abandonment have been fully considered, and being without proof, they must, as a defence, be without effect.
It is charged in the answer that the appellant was under the influence of his relatives, who had been looking to inherit his estate, and being disappointed
How far, if at all, the sisters of the appellee may have influenced her conduct in this matter, I will not undertake to say; but the fact is prominent in the record, that one of them, at least, who seems never to have been absent from the appellee, was very hostile to the appellant. On one occasion, during the residence at Faber’s mills, the appellant sent a letter to his wife. She was sick and the messenger did not see her. He delivered it to the sister, who took it up stairs to the appellee, and after awhile came down with the letter in her hand, and after calling back the messenger, who had started off, he says she tore the letter in a hundred pieces in his presence, and then told him he might leave. The witness, if he knew, does not state the contents of the letter. It further appears, that after the return from Faber’s mills, and while this sister was living in the appellant’s house, he swore the peace against her and had her bound with a surety in a recognizance.
But whatever may have been the cause of the appellee’s departure and absence, I think, looking to the record alone, we are bound to say that she wilfully deserted her husband without justifiable cause.
Desertion, considered without reference to matter which may exist in justification, is the actual breaking off’ of the matrimonial cohabitation with an intent to desert in the mind of the offender. 1 Bishop on Mar. & Div. § 777.
A mere separation by mutual consent is not desertion in either party, nor as matter of proof can desertion be inferred against either from the mere unaided fact that they do not live together. The intent to desert may be proved, it is said, by a great variety of circumstances. Among those enumerated in the case
This protracted absence, without necessary detention, is as potent proof of the intent to desert in case of the wife as of the husband. Bailey v. Bailey, 21 Gratt. 43, and cases cited; Carr v. Carr, 22 Gratt. 168; Latham v. Latham, 30 Gratt. 307.
The authorities are not in perfect harmony on the question as to what constitutes legal justification for breaking off the matrimonial cohabitation. Bishop lays it down as the better doctrine, that “ when a husband or wife breaks off cohabitation because of the alleged improper conduct of the other matrimonial partner, such conduct must have proceeded so far as to furnish ground for divorce, or the one so breaking off'the cohabitation is guilty of the offence of desertion.” 1 Bishop on Mar. & Div. § 569. See also § 795 et seq. and cases cited.
The appellee, in her answer says, that she left the appellant’s house, hut “not against his consent.” She does not say in direct terms that she left with his consent. The fact, nevertheless, stares us in the face, that she left and went to a distant city and there took up her residence, and there remained for more than fourteen years, never once returning to her husband’s home, nor expressing a willingness, wish, or purpose to return. In the mean time, it seems she was made aware of the willingness of her husband to receive her back. A witness, John M. Shelton, is asked, “ whether Mrs. Harris has been aware that Mr. Harris could or could not receive Mrs. Harris back to his house, if she chose to return.” His answer is, “ I feel very sure that she ivas apprised of the fact of his willingness to take her back, from a conversation I had with her in Korfolk some two or three years ago I think.” And about a
It.is true, that after the process in this suit had been served upon her, the appellee appeared in Kelson for the first time after a continuous absence of fourteen years, and sought and had an interview with her husband. Precisely what occurred in that interview has not transpired. We only know the result, that if reconciliation was the object, it was not effected.
In the conclusion of her answer, the appellee says “ if respondent could have been made comfortable and protected at home and her health had justified, she would have been willing to live with the plaintiff, and had offered to do so in his presen t affliction, but he spurns the offer and scujs the law must take its course,” &c.
There is no proof of the “ offer,” but if made, it is not difficult to surmise why the appellant rejected it. lie might, I think, very reasonably have concluded, under the circumstances, that the offer was not prompted by conjugal affection or even a.sense of duty; and such is the inference plainly deducible from what she says in her answer. “ Whilst respondent did not feel disposed to institute proceedings against the plaintiff in his lifetime and claim a support at his hands, yet she is umoilling to yield that right in his property after his death which the law gives her, or even tacitly to admit a wrongful abandonment of the plaintiff' by a failure to answer his bill. She is informed that the plaintiff is greatly afflicted in body vñth an incurable disease, which in the course of nature must soon end his days. She is truly sorry that in that state of health he has resorted to legal process under the hope the law
There would seem to be nothing in the relative condition, pecuniary or otherwise, of the parties, when the other circumstances of the case are considered, that would justify the allowance made by the decree. There is no issue of the marriage. If the wife is afflicted in body and mind, as represented, the husband, according to her admission, is also “ greatly afflicted in body with an incurable disease,55 has passed the age of three score years and ten, and “ in the course of nature must soon end his days.” If she is poor, he is far from being rich. The income, if any, from his small estate is probably not sufficient for his own support. The wife brought nothing to the husband at the marriage, she added nothing to his estate by her earnings, and if during the very brief period of cohabitation,
The court having properly, as I think, decreed in behalf of the husband a divorce from the bond of matrimony for the wilful desertion of him by the wife, I see nothing in the circumstances of the case which make it proper to require the husband out of his estate to contribute to her maintenance after the divorce. I find no precedent for such an allowancé in the decisions of this court, and I am unwilling to-make one.
The unhappy condition of the appellee excites my commiseration ; but courts of justice are not allowed to be controlled in their decisions by considerations of that character. “ Compassion,” said an eminent Virginia chancellor, “ ought not to influence a judge, in whom, acting officially, apathy is less a vice than sympathy.” Chancellor Wythe, Commentary on Field’s Ex’x v. Harrison & wife, Wythe’s Reports, (Minor’s Ed.) 282.
Carr v. Carr, 22 Gratt. 168, was a case which, in its circumstances, appealed strongly for sympathy in behalf of the young wife. The bill was filed by the husband for divorce from bed and board on account of alleged desertion by the wife, and for the custody of their infant child of very tender age. This court held that there was desertion on the part of the wife, and no sufficient cause for it; and in delivering the opinion of the court, Judge Bouldin said: “In holding, as we do, that there was no sufficient cause for the desertion of the husband by the wife in this case, we must add that we are very far from holding the husband blameless. On the contrary, his conduct-towards his young and inexperienced wife has in many respects been in the highest degree reprehensible. He
I am of opinion to reverse so much of the decree appealed from as makes the allowance to the wife, and affirm the residue, without awarding costs to either party.
After charging the annuity upon the lands of the appellant, the decree further provides, that “the said annuity shall be in lieu of all dower-right which the said Sarah O. Harris (the appellee) might otherwise have in and to the real estate-of the plaintiff, Daniel M. Harris (tlie appellant).”
Upon the principles recognized and acted upon by this court- in the case of Porter v. Porter, 27 Gratt. 599, it would seem, by analogy, that the effect of a decree of divorce from the bond of matrimony, withoxrt any special provision in the decree as to the property-rights of the parties, would be to extinguish, or arrest the consummation of the inchoate or incipient right of the wife to dower in the real estate of the husband. See 2 Bishop on Mar. and. Div. §§ 706, 707, 708 et seq.;
If such would he the legal effect of the decree of divorce merely, there might he a question Avhether the court may not, under the broad and comprehensive discretion given hy the statute “ concerning the estate and maintenance of the parties, or either of them,” counteract this effect hy specially providing that, notAvithstanding the divorce, the inchoate dower-right shall he preserved to the Avife and await the contingency hy which it may become consummate.
If, on the other hand, the decree of divorce merely would not per se affect this inchoate right of dower, there might he the further question, whether the court, under the statute, may not control the right, and, as was ordered in the present case, bar it, and substitute, in lieu thereof, a vested interest, as money or other estate of the husband.
But in the vieiv I have taken, it is not necessary to decide any of these questions in the present case, and I express no opinion upon them.
Christian and Staples, Js, con cured in the opinion of Burks, J.
Moncure, P., and Anderson,-J., dissented.
The decree was as follows:
This cause, AA'hich is pending in this court at its place of session at Staunton, 'having been fully heard hut not determined at said place of session, this day came here again the parties hy their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in
marriage between them he dissolved, is erroneous. It is therefore decreed and ordered, that the said decree, so far is the same is hereinbefore declared to he erroneous, he reversed and annulled, and the residue thereof he affirmed, and the coui't doth not award costs to either party; all of which is ordered to Jbe certified ■to the said circuit court of Helson county.
Decree reversed.