24 S.E. 238 | Va. | 1896
delivered the opinion of the court.
The appellant, by her next friend, J. B. Graines, filed her bill of complaint in the circuit court of Henrico county, alleging a marriage between her and appellee about 12 years prior to the filing of the bill; that the marriage was solemnized in the city of Philadelphia; that at the time of the marriage the complainant was the mother of three children by her former marriage, and, at the time of the filing of her bill, two by the alleged marriage with appellee, the last two children being, respectively, 11 and 8 years of age ; that after this alleged marriage she had lived with appellee in the city of Bichmond up to the filing of the bill ; and that she had been to him a true, virtuous, loving, and confiding wife. The bill then charges the defendant with unfaithfulness, cruelty, negligence, and abandonment, and prays a divorce from him a mensa et thoro; that the custody of the children be awarded to complainant, and that alimony be allowed her for the maintenance of the children and herself during the pendency of this suit, and that defendant be required to pay counsel fees ; and that an injunction be granted (which was done) to restrain the defendant from disposing of his property. The defendant, Joseph H. Brown, filed his answer to this bill, in which he denies each and every allegation made therein, and especially denies that there had been a legal marriage between him and the complainant, and set forth that the complainant, who should be properly called Sophia Allison, for some time before and at the time of the alleged marriage with the defendant, was, and ever since had been, under a legal disability, and incapable to contract
It would serve no good purpose to review all of the assignments of error contained in the petition for the appeal, as they are, with but few exceptions, without merit, and have no foundation in the record. I will, however, review briefly the following:
■First. Errors assigned to the refusal of the court to allow suit money, temporary and permanent alimony, and counsel fees. Citation of authority is not needed for saying that appellant could have no marital rights in the property or estate of appellee unless there had been a valid marriage between them; and, even where.there has been a valid marriage, the allotment for alimony, counsel fees, etc., are matters within
Second. Errors assigned" to the reading of the depositions taken on behalf of appellee, on the ground that the notice was improperly executed, and insufficient for want of time. It is sufficient to say that no objection was made to the reading of the depositions in the court below, and the decree entered, if not by consent, was indorsed by counsel for appellant, and it is therefore too late to make objection to the reading of the depositions in this court.
Eighth. - This assignment of - error is put upon the ground that the decree divorces appellant from the appellee, when in fact the decree does not divorce the parties, but simply declares that there has been no legal and valid marriage between them. It is true that a decree annulling a marriage in a suit for a divorce a mensa et thoro would not be proper, but such is not the case here, the decree being that the appellant and appellee were never legally married ; that appellant was under a legal disability,' and incapable to contract the alleged marriage with appellee ; and that appellee was not liable or responsible for her support or maintenance, and not liable for other marital obligations to her.
Tenth. This assignment of error is put upon the ground that the proof of the existence of the prior marriage, binding at the date of the decree between appellant and Joseph Gr. Allison, was not sufficient. In addition to the fact that appellant nowhere denies her marriage with Allison, nor attempts to verify the statement made in her original bill as to her marriage with Brown, she admits, as the decree shows upon its face, the genuineness of the marriage certificate
The only remaining assignment of error is to the action of the court below giving the infant children by the alleged marriage with Brown to the care and custody of Brown. This assignment of error is in the face of the fact that by a writing signed by appellant, and addressed to the honorable judge of the lower court, which is made a part of the decree appealed from, the children were committed to the care and custody of the appellee by the consent of appellant; appellee having been shown to be a suitable person to have custody of these infants, and able to provide for their maintenance and education. There having been no valid marriage between appellant and appellee, appellant was under no disability such as is imposed upon husband and wife by the statute (section 2260, Code Va.), and she was therefore competent to consent to the decree giving the custody 'of the children to appellee. There is no error in the decree complained of, and it is therefore affirmed.