106 Va. 736 | Va. | 1907
delivered the opinion of the Court.
Appellant moved to reverse and annul the decrees entered on the bill of review, which motion was overruled, and on the 18th of May, 1904, the decree under review here was rendered, setting aside the decree entered at the November term, 1903, in the first cause, and granting to appellee a divorce from appellant a vinculo, in accordance with the prayer of his cross-bill.
In the view we take of the case, it is immaterial whether or not the Circuit Court rightly entertained the bill.of review, as practically the same result must follow whether the decision of that question be the one way or the other.
TTpon the refusal of the court to dismiss the bill of review, or to set aside the decrees entered thereon, appellant, as stated, amended her original bill, and by the amendment met fully the objection made that the statement of the case in her original bill was not a sufficient statement to give the court jurisdiction of the cause. The demurrer of appellee to the amended bill was overruled, and appellant took again the deposition read in
In this view of the merits of the case we are unable to concur. It appears that these parties intermarried in 1886, and lived, until their separation in November, 1899, upon a farm of 60 or 70 acres situated in Campbell county, which was bought after the marriage and paid for by their joint efforts; that two children were born of the marriage, but one of them only, 'the boy, was surviving when this litigation was begun, then of the age of thirteen years; and that the parties, from their marriage, lived together comparatively harmoniously until a short while before their separation, when discord and dissension came, growing mainly, if not altogether, out of appellee’s disagreement with appellant as to her religious views and preference for the Baptist Church—he about that time becoming infatuated with the Seventh Day Adventists. It further appears that in November, 1899, appellee occupied and slept in one part of the house, and required appellant, with her child, to occupy a different part of the home, their home consisting of two small houses situated a few feet apart, one a frame and the other a log house. Appellee claims that he slept in a different room on the lower floor of the log house, while appellant occupied the upper room in the frame house, because of the interruption of his rest at night by the noise caused by the entertainment by the lady teacher boarding in the house, in
“Q. Please state that if at any time you were put in fear of him or in danger of personal danger, other than the times you have mentioned?” “A. Yes, I was afraid of him from that time on. I had no protection. He had threatened to Mil me, and I kept my' doors locked from that time as long as I stayed there night and dáy.”
The son, of the age of about fifteen years when he gave his deposition in this cause, of more than ordinary intelligence for one of his . age, as shown by the responsive and intelligent answers he made to the questions propounded to him, not only substantially but in almost every detail corroborates the statements made by his mother in her bill and in her deposition. He testifies that appellee cursed and abused his mother in his-presence a number of times, and a number of times called her a damn bitch. This witness was in the best position of all who-testified either for or against appellant to know and appreciate the truth of her statements as to the "treatment she received at the hands of appellee. Those statements are also borne out by other facts and circumstances proven in the record. J. B. Snow,, a witness for appellee, proves that the separation of appellee from appellant occurred in November, 1899, by his moving into, or continuing from that time to occupy, a room on the-ground floor of the log house, while appellant occupied an upper room in the other house.
To overcome the evidence in behalf of appellant appellee has only his own deposition given in the case as to the charges of cruelty and the desertion of appellant, and that of others as to-“his general reputation as an industrious, sober and peaceful man in the neighborhood,” or as a “hard-working, honest man.”' None of these witnesses lived nearer to appellee than one or two-
There is not one word of evidence in this record, except from the mouth of appellee himself, tending to prove that appellant was not to him at all times and under all circumstances, to the time that he abandoned her, a faithful, kind, considerate and helpful wife.
The lady teacher,, a Miss Kively, wlio boarded at the home of the parties to this suit during the winter of 1898-’99, was professedly a very warm and cordial friend of appellant, but when asked to come and testify in her behalf she declined, skying she “did not want to be in a divorce suit, and be picked and quizzed by lawyers”; and when-pressed by letter to come, she declined in a letter considered insulting, saying that if forced to come she would not tell what she knew, etc.; yet she afterwards appeared and gave her deposition in behalf of appellee. While this wit
The boy, Alex. Davenport, and Mrs. Howell, the mother of appellant, testify in rebuttal as to conversations of Miss Rively in Avhich she spoke of the ill treatment of appellant by appellee; that she should leave appellee; and that it Avas not safe for her to remain with him, etc.
When a husband withholds from his wife, who has been faithful, hind, considerate and diligent in the discharge of her duties to him, efficient and helpful in securing the means with which to pay for a home, however humble, that affectionate regard for her feelings due to her, adding to this wrong, abusive language, calling her vile names, seizing her person with violence and threatening her with greater violence, he is, in morals and in law, guilty of cruelty of a gross and brutal character. To so treat a wife as to render it impossible for her to live with her husband in safety and in that peace and concord evidenced in every home where both the husband and wife bear the one to the other that affectionate regard and considerations which their relations to each other demand, is on the part of the offending husband desertion and abandonment of the other as fully and completely as if he himself had left the home with intent never to return to it. In this twofold attitude stood appellee towards appellant when, from no fault of hers, she had to leave his home and take refuge for herself and child in the home of her parents; and his desertion and abandonment of her, beginning in November, 1899, continued for more than three years before the institution of this suit.
We are, therefore, of opinion to reverse and annul the decree appealed from, with costs to appellant, to dismiss the cross-bill of appellee, and to grant appellant a divorce from appellee a vinculo matrimonii; but as the Circuit Court is in a much better position to determine as to the alimony that should be decreed to appellant, and has entire control over the estate of appellee under sections 2261 and 2263 of the Code, the cause will be remanded to that court, with direction to make its own decree requiring appellee to pay to appellant such alimony and allowance for services of her counsel as to the court may seem
Reversed.