93 W. Va. 727 | W. Va. | 1923
The decree of'April 1, 1922, appealed from, denied plaintiff the relief prayed for in her bill, dismissed the bill, and awarded custody of the infant child, Margaret Boos, to defendant.
The bill, filed at June Pules, 1920, prays for a divorce from bed and board from defendant on the ground of cruel ■and inhuman treatment, causing reasonable apprehension
Plaintiff, while at a music school in Virginia, then being eighteen years of age, began corresponding with defendant who lived in Sheboygan, Wisconsin, as the result of a matrimonial advertisement. After an exchange of photographs and numerous letters, she visited defendant and his family in Wisconsin, and after a short courtship of a few weeks they ■were married. The husband was then-33 years old. It was an unhappy marriage. Defendant was poor, and she assisted in various ways to make a living. She worked in a store and in a restaurant when her health and condition permitted. Mutual dissentions arose. His business efforts were not successful and want was ever present. She charges that he forced her on one occasion to assist him in sawing wood which caused a miscarriage followed by serious illness. On another occasion he accused her indirectly of having illicit relations with other men while she was working in a factory. She accuses him during this period of residence in Wisconsin, of cursing her and calling her improper names. These accusations are denied by him. Within this time the child, Margaret Boos, was bom. It is evident that the marriage relations became strained to such an extent that she contemplated leaving him. In 1918 the mother of the plaintiff, Mrs. Howard, visited them in Wisconsin. Plaintiff, by working in a munitions factory, obtained sufficient money to accompany her mother home to Martinsburg in this state, ostensibly on a visit, accompanied by the child. After a month or six weeks of rest she obtained work in a knitting mill at Martinsburg.
Did the corirt have jurisdiction ? The bill avers that plaintiff has been for more than a year next preceding the institution of the suit a bona fide resident of Martinsburg, and that she and defendant last cohabited together in Berkeley county in this state. The proof shows that she came from Wisconsin to Martinsburg the latter part of December, 1918, with her mother and child,-not having decided at that time whether she would return to Wisconsin. Defendant came to Martinsburg in May, 1919, where they resumed marital relations. While -he says he never intended to make this state his place of permanent residence, he brought his household goods and furniture and stored them at the home of Mrs. Howard. In October of that year ,he left with the infant for Wisconsin with the result above set out, returning a short time thereafter for the purpose of obtaining the custody of the child by habeas corpus, and remained until after this suit had been instituted in June, 1920. The place where the parties live together as husband' and wife is their matrimonial domicile. Our statute, sec. 7, chap. 64, Code, requires that the plaintiff must be an actual bona fide citizen of the state with residence in the state for at least one year prior to the institution of the suit. The word “residence” as used in divorce statutes is almost universally construed as equivalent to “domicile.” Cohen v. Cohen, 26 Del. 361; Harrison v. Harrison, 117 Md. 117; Hall v. Hall, 25 Wis. 600; People v. Platt, 50 Hun. (N. Y.) 454; Andrews v. Andrews, 176 Mass. 92; State v. Davis, 199 Mo. A. 439; Bechtel v. Bechtel, 101 Minn. 511; 12 L. R. A. (N. S.) 1100. “The domicile of a wife for the purpose of divorce is not necessarily that of the husband, but it is sufficient if she is a bona, fide resident of the state where suit is brought, especially where she remains in the place where they last had
Does the proof sustain the decree ? The divorce is sought on the charge of cruel treatment. Unless that averment be sustained by the proof the decree refusing a divorce a mensa must be affirmed. If we affirm the decree in that regard that part of the decree which awards custody of the child to the father must be reversed under the decisions in Lord v. Lord, 80 W. Va. 548; 92 S. E. 749, and Roush v. Roush, 90 W. Va. 491; 111 S. E. 335, where it is held that in a suit for divorce wherein the relief prayed for is denied, there is no jurisdiction in the court to change the custody of the children of the parties thereto.
Is the gravamen of the bill, cruel treatment, sustained by the proof? This is the crucial question. There is evidence, mainly from the lips of plaintiff, in part substantiated by her mother, Mrs. Howard, that defendant abused his wife, threatened her with violence and called her vile names while they resided in Sheboygan, Wisconsin. Plaintiff says he compelled her to help him saw wood for domestic use while she was enceinte and when she was unable to work for that
"We think plaintiff has established her right to a divorce from bed and board by a clear preponderance of the proof. We do not exculpate plaintiff from all blame. She may have induced some of the ill treatment. The decree will be reversed, and such decree entered here as should have been entered by the lower .court, giving her a divorce from defendant from bed and board. Couch v. Wartenberg, 91 W. Va. 91.
What shall be done with the infant child, Márgaret Boos, This is the question which has given us the most serious concern. Our statute provides that in decreeing either an absolute or limited divorce the court may take such order as it shall deem expedient for the care, custody and maintenance of the minor children. The welfare of the infant is the controlling consideration. We have come to the conclusion' after a careful consideration of the entire record, that the child’s welfare will be best conserved for the present in the custody and care of her mother. At her age a mother’s care and ministrations are almost indispensable. The1 mother’s reputation for chastity and morality is unshaken. Her ability and energy will provide for its material wants. She has been carrying that burden. Under see. 7, chap. 82, Code 1923, if the parents are living together, neither has the paramount right to the custody, control, services and earnings
Reversed, decree for plamtiff.