Boger v. Boger

| W. Va. | Sep 7, 1920

POBEENBARGER, JüDGE :

Having sustained a demurrer to a bill for divorce, from the bonds of matrimony, filed by a husband, more than two years after the entry of a decree of divorce from bed and board, on a bill filed by the wife, the circuit court has certified the question of the sufficiency of the husband’s bill.

It is based upon the theory of a desertion or abandonment of the husband by the wife, after the procurement of the divorce a mensa et thoro, evidenced by her indifferent and offensive treatment of him. He has paid the alimony decreed against him and permitted her to reside with their children, in his home, since they were divorced. Nevertheless, she and the children, the latter supposedly by her inducement, have treated him badly, he alleges, and made it perfectly apparent that reconciliation is impossible. It would be useless to detail here the alleged facts and circumstances relied upon as proof of the wife’s purpose neve.r again to cohabit with him. If there could be desertion or abandonment, by the party in whose favor a divorce from bed and board has been granted, except in the case of remarriage or valid resumption of the marital relation, after the, award of the divorce, within the meaning of the law, the facts alleged in the bill might be sufficient to constitute it. There is no occasion to say whether they would or not.

Desertion under such circumstances is a legal impossibility. The decree awarded the wife affirmed her right to live separate and apart from he.r husband and absolved her from duty to cohabit with him or even to treat him kindly. Though still his wife in a qualified sense, she was relieved of personal duty to him in any way. . She could lawfully absent herself from him. Her exercise of that right could not amount to any misconduct or wrong toward him, in the, legal sense of the terms. If, as the argument assumes, it .is wrong to deny him freedom from the bonds of matrimony, while he is cut off from association with his wife and children and exposed to their indifference and perhaps hatred, the wrong done him is not a legal one for which the law affords redress; wherefore he is not within the legal maxim he invokes. There are a great many moral, economic, social, marital and other wrongs of which the law takes no notice. Pre-sumtively, his wrongful conduct brought about the altered status of which he complains, and the Legislature, in denying him a right which it has extended or permitted to her, has no doubt applied another maxim of equal wisdom, namely, that no person shall be permitted to take any advantage, or to profit in any way, by his own wrong.

It is admitted that the statute authorizing an absolute divorce in any case in which two years have elapsed from the bringing of the, suit in which a decree from bed and board has been entered, without a reconciliation or probability of it, Code, ch. 64, sec. 13, in terms confers the right to obtain an absolute divorce upon the injured party only. These terms legally as well as literally deny and forbid thq relief claimed. Bestowal of the right upon the injured party in express terms impliedly withholds it from all others, if the statute is not merely amendatory of ecclesiastical law under which limited divorces were anciently allowed in England. Specification of one thing impliedly excludes all others in both common sense and law.

The statute is not amendatory of either the, common or the ecclesiastical law. It is full, complete and comprehensive, covering every phase of divorce; wherefore it was manifestly designed by the Legislature to be a substitute for all other law applicable to that subject. State v. Hardin. 62 W. Va. 313; Grant v. Baltimore & Ohio R. Co. 66 W. Va. 175. It would be difficult to find in our code, or any other a more comprehensive statute. It covers the entire subject fully and in detail. Much of it is taken from the common and ecclesiastical laws, or course, but obviously that does not make it amendatory. Equity procedure gets into it by express legislative adoption, not by interpretation. Code, ch. 64, see. 8.

The bill contains allegations of inability longer to pay the alimony awarded by the decree in the first suit and neglect of the, children, the youngest of whom is sixteen years old, each of whom probably has the right now to say with which parent he prefers to reside and all of whom are alleged to be unfriendly to the¡ plaintiff. As to the character and value of the plaintiff’s estate and the amount of his income, the bill is very general and indefinite. No particulars are stated. Nor does it disclose the character or extent of the alleged ill treatment or neglect of the children. All of this matter seems to have been inserted, along with an allegation, of inability to obtain from the house certain articles of personal property, as constituting in part the alleged ground of divorce. No specific relief respecting them is asked, nor are they relied upon in argument here. Read in the, light of the manifest purpose and prayer of the bill, these allegations cannot afford a basis of relief respecting alimony, custody of children or personal property, because of their indefiniteness and uncertainty. If they cle.arly evinced purpose to obtain such relief and were full and definite enough to make out a case, the bill might possibly be treated as a petition in the original cause which has been retained for modification of the decree, .respecting alimony and the custody of the, children.

Our decision will be that the demurrer was properly sus-' tained.

Ruling of circuit court sustained.