122 Va. 32 | Va. | 1917
delivered the opinion of the court.
Peter Gum obtained a divorse a mensa et thoro from his wife, Mary Etta Gum, by a decree of the Circuit Court of Highland county, on November 26, 1914, which decree, so far as it is necessary to recite it, is as follows:
“This cause came on this day to be again and finally heard in vacation upon the papers formerly read and upon the depositions of witnesses taken on behalf of both the plaintiff and defendant—the cause having been submitted to the court for decision at the last term upon the whole record, and was argued by counsel.
“Upon consideration whereof, it appearing to the court*35 from the evidence in this cause, independently of any admissions in the pleadings or otherwise, that the defendant on the 18th day of August, 1911, wilfully and without any just cause therefor deserted and abandoned the plaintiff, it is adjudged, ordered and decreed that the plaintiff be granted a divorce «• mensa et thoro from the defendant.
“The court doth further adjudge, order and decree that the marital rights of each party to this suit' in and to any property owned by the other party be and the same are hereby extinguished.”
Peter Gum subsequently died on the 13th day of April, 1916. At the time of the decree above mentioned he was the owner of valuable real and personal property, which he continued to own until the time of his death. In July, 1916, the said Mary Etta Gum instituted this suit claiming dower in the real estate of the said Peter Gum, and a distributive share of his personal estate. The bill alleges that he owned no other real and personal estate at the time of his death except that which he owned at the time of. the divorce. She files as exhibits with her bill a copy of the bill filed in the divorce suit, and also a copy of the final decree granting the divorce an extract from which has been hereinbefore set forth. No other portions of the record in the divorce suit are filed or introduced into the cause. In referring to the divorce suit in the present bill she avers that “the cause was much litigated,” and the decree aforesaid shows that depositions were taken “on behalf of both the plaintiff and defendant.” There was a demurrer to the bill in the instant case which was sustained, and from the decree sustaining said demurrer this appeal was allowed.
The complainant in her bill avers and charges “that provision in the aforesaid decree of divorce a mensa et thoro, that the marital rights of the parties to the said suit are extinguished, does not operate and is void as to property
If the court had jurisdiction of the parties and of the subject matter, and the matter decided was within the issues, then there, can be no question as to the conclusiveness of the judgment. That the court had jurisdiction of the parties in this case cannot be doubted, as it appears from the decree in the divorce suit that depositions were taken on behalf of the wife, and as she.says in her bill, the cause was much litigated. Chapter 101 of the Code gives to circuit courts the most complete and ample jurisdiction over the whole subject of divorce, and section 2263 expressly provides that the court may not only grant decrees for divorces but “may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties or either of them.” It cannot be doubted from an examination of the various sections contained in chapter 101 of the Code that the court had complete jurisdiction of the suit for divorce, and to make such orders concerning the property and estate of either as it might deem expedient. It is said by counsel, however, that the question of her rights in the property of her husband were not put in issue by the divorce suit, and hence that the decree extinguishing her marital rights was to that extent a void decree. It must be borne in mind that we have before us nothing of the proceedings in the divorce suit except a cony of the bill and the final decree. The final decree indicates that the cause had been previously heard, as it begins by saying: “This cause came on this day to be again
Jurisdiction then having been acquired over the parties and the subject matter, every presumption is made in favor of the legality of the judgment when collaterally assailed. We have no means of ascertaining what proceedings were had in the divorce suit, except as shown by the exhibits filed with the bill in this suit, and as they do not disclose any defects in the decree which would render it void, it is presumed to be valid.
Whether or not it is necessary, in a suit for divorce, for the rights of either party in the property of .the other to be put in issue by the pleadings in the cause, before the court can “make such further decree as it shall deem expedient concerning the estate and maintenance of the parties or either of them.” it is unnecessary to decide. Upon this question we express no opinion.
It is further objected, however, that the decree in the
At common law, a divorce a vinculo could only be granted by the courts for a cause existing at the time of the marriage, and when the divorce was granted for such cause it avoided ab initio the property rights of the parties, so that there was neither dower nor curtesy in property then existing or thereafter acquired, and divorces for supervening causes could only be granted by act of parliament, which then became the law in the case. In Virginia, where the divorce a vinculo determines the marriage ab
We have no difficulty in arriving at the conclusion that the decree in the divorce suit, “that the marital rights of each party to this suit in and to any property owned by the other party be and the same are hereby extinguished,” were intended to exclude the wife’s right to claim dower upon the death of the husband, or an interest in his personal estate, and that the language used is adequate to that purpose, and, as the subject was within the jurisdictional power of the Circuit Court of Highland county and the parties were before the court, the decree in the divorce suit which has never been reversed or annulled is conclusively presumed to be correct, and it cannot be collaterally assailed in the instant suit. For these reasons the decree of the Circuit Court of Highland county should be affirmed.
Affirmed.