90 Va. 271 | Va. | 1893
delivered the opinion of the court.
This was a suit for a divorce from bed and board, on the ground of cruelty on the part of the husband, the defendant below and appellant here. The circuit court decreed a divorce, and gave the custody of the five infant children to the wife. It also by a subsequent decree ordered the defendant to provide for them a suitable home, and to pay, for permanent alimony and the support and education of the children, until the further order of the court, a thousand dollars a year, in two equal semi-annual instalments.
The evidence in support of the charges of cruelty is ample and conclusive, and there is no doubt that a divorce and the custody of the children were rightly granted to the wife. The defence set up in the answer that the complainant was persuaded by certain of her relatives hostile to the defendant to
Unfortunately, however, the record, while full enough on these points, does not contain sufficient to enable us to satisfactorily determine what is a proper allowance for permanent alimony and the support and benefit of the children.
The appellant is a farmer and the owner of two tracts of land — one containing 596 acres, the other 2,700 acres — situate in Tazewell, only a comparatively small portion of which is cleared. The residue is unimproved, much of it being u wild mountain land.” The cleared portion, however, is valuable; but what is its value, or what ought to be taken as a fair estimate of the appellant’s income, is not shown with any degree of certainty or precision.
One of the complainant’s most intelligent witnesses, a farmer, who lives in. the immediate neighborhood, estimates the annual value of both tracts at $1,100, from which sum he deducts $300 for taxes, repairs, etc., leaving $800 as, in his judgment, the net annual value. Other witnesses put it lower, the estimate of one or more of them not exceeding five or six hundred dollars. It appears that shortly before the commencement of the suit the appellant sold the greater part of his personalty for the purpose, as he says, of paying his debts. The value of the residue does not appear. The commissioner, who was directed to make certain inquiries in the cause, reported, in general terms, that “ the property now owned ” by the appellant is worth $30,000; but he says nothing, specifically, as to the income. In 1890, before the suit was commenced, the appellant contracted to sell the land for $45,000, but the purchaser has refused to take it, and the matters in-controversy between them in regard to the sale have not yet been settled. The case has been argued for the appellee largely on the assumption that the appellant is worth $60,000, and that the annual value of his estate ought to be put at
Ill respect to alimony, the general rule is that the income of the husband, however derived or derivable, is the fund from which the. allowance is made. 2 Bish., Mar. & Div. (5th ed.), see. 447; Bailey v. Bailey, 21 Gratt., 43; Cralle v. Cralle, 84 Va., 198. In his recent work on Marriage, Divorce and Separation, section 1006, Bishop, in treating of the facts upon which the amount of permanent alimony is determined, amplifies the rule, thus: “In exercising,” he says, “the judicial discretion which regulates the amount of the permanent alimony, the judge should take into contemplation the past conduct of the parties, respectively, the source of the husband’s property, what persons, if any, each is under a legal duty to support, the earnings and- acquiring capabilities of each, the wife’s pecuniary means equally with the husband’s, the health of each, and their respective ages; and" especially, but not exclusively, he should consider what sum, chargeable upon the faculties of the erring husband,, will leave the financial condition of the innocent wife not inferior to what it would be if his conduct had been correct.” And he adds that as every injury is, in law, entitled to its pecuniary compensation, the wife should have, in addition to the maintenance thus appearing, something for her physical and mental sufferings, and the loss of the husband’s society.
So, also, the amount for maintenance of the minor children,, when, as in the present case, they are assigned to the wife, depends, not only on their needs, but on the husband’s fortune and station in life, and all the circumstances of the particular case. As to this matter, as in the case of alimony, the court, with all the attainable lights before it, must exercise a sound discretion. Harris v. Harris, 31 Gratt., 13; Bailey v. Bailey, supra.
The same considerations apply in regard to the education of the children. This, however, is denied by the appellant, on
It would be strange, then, if the effect of a decree, granting a divorce, and assigning the custody of the infant children to a suitable person, were held to relieve the offending parent of a duty he owes both to his offspring and to society, when he has the means to fulfill it. If this, were the effect of the decree, the offender would make advantage of his own wrong, and the interference of the law, intended for the benefit of the children, might work an entirely different result.
The statute, now carried into section 3263 of the Code, authorizes the court granting a divorce to make “ such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody, and maintenance of their minor children”; and while nothing is said in express terms about education, yet the evident purpose of the legislature was to give to the court the largest discretion in respect to the estate of the parties, and not to relieve the offending parent of any duty, moral, social, or otherwise. Under a statute authorizing the court to “make such disposition of and provision for the children as shall appear most expedient,” the jurisdiction of the court to provide for their education, in a manner suitable to the parent’s means and station in life has been held to be unquestionable; and the language of our statute is little, if any, less comprehensive. 2 Bish., Mar. Div. & Sep., sec. 1214.
The appellant will pay the costs of this appeal.
AEEIRMED IN PART AND REVERSED IN PART.