50 W. Va. 113 | W. Va. | 1901
Emma M. Cariens filed her bill in the circuit court of Wood Coiinty against her husband, William S. Cariens, asking a divorce from bed and board, and to be given the separate custody of her two children, and alimony for the support of herself and the children. Slip charged in'her bill that for a time she and her husband lived happy together, but that after a while he became dissatisfied, and informed her that he intended to leave her, giving as his reason that she would not do her own housework, but required him to hire it done, and that she was bearing him children too rapidly, she then having a female child a little over a year old named Ruby, and then being within a few weeks of the delivery of another child, which was afterwards born, a boy, and named Walter; that she besought him not to leave her, but
We do not think the evidence convicts Mrs. Cariens of the grave charge of adultery, and therefore the-husband was not entitled to a, decree of dissolution of the marriage; but she was entitled to such a decree because of continued abandonment. This, however, is immaterial as the decree of divorce is general, and we may say it was granted to her as well as to him, and is proper. As to that provision of the decree releasing the husband from further payment of alimony. Our statute, Code 1899, chapter 64, section 11, gives the court in a divorce case continued power after decree to make further decree as to the custody and maintenance of the children; but it does not do so as to the alimony fixed in the decree, and we must look elsewhere for authority to do this. Divorce jurisdiction is the creature of the statute, and
We think too that Mrs. Cariens is entitled to the custody of both children. Wiry? There is no showing that she is not a proper person to have their custody. She has a home derived from her father, while he is a railroad engineer boarding at Parkeisburg, and can be very little with the boy, who must depend on his father’s mother in Mason County for woman care. This would separate the two little children. The evidence shows that the mother of these two children has deep love for them, whereas, as to the father just the reverse is shown, because, though of tender years, he never visited or cared for them through months and years. She swears that he declared that he had had a great deal of trouble with the little girl, and never wanted to see the coming child when it should be born. He dicl not vouchsafe his oath to deny this ice-cold declaration. The mother will need the help of this boy when he shall become older; the father does not. The boy is but seven years of age. The law as to the custody of children has been greatly modified. Formerly, the right of the father to its custody was almost an inflexible rule. That rule forgot that a' mother had a heart. The real owner of the child, be it even a baby, must give it up. But civilization, advanced thought and human kindness have beat this iron rule and opened the ears of the courts to the pleading, of the true friend and owner of the child. The courts do not these days inexorably take from mothers their children of tender years even for the father, if the mother is a fit person, and has a home for them, but look at all the circumstances. The welfare of the child is the test. The welfare of a' tender child is with the mother generally. 9 Am. & Eng. Ency. L. (2 Ed.) 867; Cunningham v. Barnes, 37 W. Va. 746; Green v. Campbell, 35 Id. 698. The law leans in this matter to the innocent parent, the one without fault. 2 Bishop, Mar. Div. & Sep., ss. 1190, 1191, 1196. Considerations just stated would justify us in saying that the mother is entitled to the custody of Walter Cariens; but they are by no means all that is to be considered; for there stands the first decree adjudging to the mother his custody, which must remain strong'between the mother and father. If the question were for the first time before us we might give his custody to the father; I hardly think we ought; but that question has been litigated, and the second decree is only a reversal of the first
So far as the decree of the circuit court of date March 8, 1900, dissolves the marriage between William S. Cariens and Emma M. Cariens and gives to her the custody of Ruby Cariens, it is affirmed; but in all other respects it is reversed, with costs to the 'appellant in this Court and in the circuit court.
Modified.