68 W. Va. 15 | W. Va. | 1910
Tlie plaintiff, for alleged desertion of her by defendant, sought a decree of divorce a merma et thoro, and, the custody of her infant daughter, and that the interest, being the one-fourth undivided interest of her husband, in a certain lot in the city of Parkersburg, be transferred to her as permanent alimony, and general relief. An attachment for $2,000.00, the approximate value of said lot, as alleged in the bill, was also sued out and levied by the sheriff thereon.
'The original decree pronounced December 20, 1907, in accordance with the prayer of the bill, adjudged that plaintiff and defendant be and they were thereby divorced from bed and
On April 25, 1908, at a special term of the circuit court, defendant appeared openly, and on his petition, subsequently amended, and bond for costs filed, as provided by section 14, chapter 124, and section 25, chapter 106, Code 1906, the cause was reinstated on the docket, and petitioner permitted to make defense.
On December 30, 1908, the cause was brought on again to be heard on the papers and proceedings filed at the date of the original decree, and upon the answer and cross bill of defendant, depositions and proofs taken, the demurrer of plaintiff to said answer and cross bill, previously overruled, the demurrer of Thomas Coleman thereto, previously sustained, but amended as to him and not demurred to as amended, and the court being of opinion that defendant was not entitled to the relief prayed for in his answer, it was thereupon again adjudged, ordered and decreed, in accordance with section 26, chapter 106, Code 1906, that the prayer of defendant’s cross-bill answer be denied, and that the decree entered in said cause, December 20, 1907, be ratified and confirmed, and that plaintiff and Thomas Coleman recover of defendant and John F. Laird, surety, their costs.
It is from the decree of December 30, 1908, so ratifying and confirming the original decree of December 20, 1907, that this appeal is prosecuted.
Three questions are presented for decision: First, was plaintiff, on the record as finally presented, entitled to a divorce ■ -<from bed and board? Second, and if divorce was properly decreed did the court err in decreeing that, the interest of defendant in said house and lot be conveyed to plaintiff as permanent alimony? And, third, if plaintiff was not entitled to the relief prayed for and decreed her, was defendant in his cross-bill answer entitled to a decree of divorce from bed and board as
Defendant denies the charge of willful abandonment. He does not deny that he absented himself from home at or about the times charged in the bill, but alleges as good cause therefor, cruel and inhuman treatment by plaintiff. The acts and conduct of plaintiff mainly relied on are, that in December, 1903, on going to his home, plaintiff assaulted him without cause, with a pair of scissors, and ordered him away; that in 1904, on returning home, she refused him a bed, and all martial rights; also prior neglect to visit him in the hospital, and to administer to his wants and necessities in time of sickness, and other causes, all of which are relied on and charged1 against her in his cross-bill answer as ground for affirmative relief.
The record shows that these parties were married in 1874; that three children were born to them, the oldest now about thirty years, and the youngest about ten years of age; that almost from the beginning their relations became strained, and have so continued to the present; then at one time after the birth of the first child, plaintiff absented herself from defendant, leaving the child, and was gone for several months, her excuse given being that nothing was furnished her to eat; that on several occasions defendant absented himself and was gone out of the State for months, the last time, before the institution of this suit, for about a year; that he had not cohabited with plaintiff since December, 1903, but continued to provide for her, to some extent at least, until he left the State in December, 1906, and thereafter ceased to make any provision for the maintenance of his wife or infant daughter.
To establish her right to the decree the burden was upon the plaintiff to show wilful desertion or abandonment- of her by defendant, without Justifiable-cause, and the evidence thereof must be full and clear. Tillis v. Tillis, 55 W. Va. 198 (46 S. E. 926); Burle v. Burle, 21 W. Va. 445; Bailey v. Bailey, 21 Grat. 43; Carr v. Carr, 22 Grat. 168. Desertion can not be inferred from the fact that the parties do not live together. Burk v. Burk and Bailey v. Bailey, supra. Defendant does not deny, but admits, absence from, but alleged continued' support of defendant and daughter after December, 1903, and absence
The first and foremost fact relied on by defendant is that in December, 1903, when he went to his home, or the place where his wife and child resided, she assaulted him, without cause, with a pair of scissors, and ordered him to get out. There were three witnesses to this transaction, the plaintiff, the defendant, and a nearby neighbor. This is a very important factor in the case, for here is where the final breaking off of all marriage relations appears to have begun. Referring to this time, defendant says: “I walked in the house and had begun to let the ashes out of the grate and my little daughter laid her breast across me and my wife jumped up with a pair of scissors and I backed out of the room- and she told me to go out of there, and I said Mrs. Reynolds, I will go out but it will be a long time before I come back and she went out and called the police. * * * * She did not strike me exactly, but she came at me holding the scissors in front of her and I backed out of the door in front of the scissors. * * * * She followed.” He further testified his belief that she would have struck him with the scissors if he had not backed out; that he never afterwards returned to his 'wife’s home to live; that he was unable thereafter to live or cohabit with her, because she was quarrelsome and abusive every time he went home; that she was a woman of very high temper, and when she exhibited her temper towards him, he would try to reason with her, and he would sometimes tell her that was no way for her to act, and would walk away and leave her, M. ,G. Neale, a neighbor, who witnessed, in part, the occurrence in December, 1903, testified that he walked out on the front porch and heard
To the facts connected with this incident, defendant would link some prior and subsequent conduct of plaintiff towards him, notably, that some tim'e prior, while residing at the same place, date not given, he was taken sick, and a doctor was called in; that he called for a drink of water, which he needed very much, and heard his wife say that she would not take him a drink of water if he was dying. This fact is denied by plaintiff, but defendant is corroborated by' the doctor, but the doctor fixes the time in May, 1900. At another time, in 1903, defendant broke his leg, and was taken to the City hospital, four or five blocks from his residence, where he remained about four weeks. He says, his wife never visited him there, or did anything towards nursing or earing for him. Plaintiff admits this, but says as a reason for it: “I did not think I ought to, the way he treated me.”
Another incident occurred at the home, in February, 1904 or 1905, and is much relied on. Defendant went there, apparently to renew cohabitation, but was not there more than
Plaintiff denies these charges; denies that she denied defendant a bed, says that there were plenty of beds in the house, but even if there were no beds, there was a lounge. She says the house was -always open for him to come in and stay at night, and live with her 'when he so desired; that when he would go out she would shut the door.
The only other fact of importance relied oh as cause for desertion was the treatment of defendant by his eldest son,' Frank. He frequently quarrelled with his father, as he says, because his father failed to provide properly for his mother and sister. At one time while defendant was delivering a load of coal at the house, he threatened if his father would come down off the wagon he would whip him. Defendant says this was in the presence of plaintiff and encouraged by her. She denies it, but on the contrary she says she always told him to treat his father right.
That there was indifference, if not positive neglect by .plaintiff of her martial duties and obligations to defendant for many years, the evidence, including her own admissions, leaves little room for doubt. Defendant is proven to have been a hard working, sober, industrious and peaceable man. He evidently did not have large earning capacities; but he seems to have struggled hard to get along, and although he evidently did not provide very bountifully for his family, he had little to encourage him to do so, but seems for the greater part of the time to have done the best he was capable of doing, particularly the last two 3rears before he left them. He was a common teamster, earning when driving teams for others, about nine dollars per week.
Eesponding now to the second question presented for decision, we are of opinion that the court below erred in decreeing that* the interest of defendant in said house and lot be conveyed to plaintiff as permanent alimony. It is undeniably true that in some states in the absence of statutory authority, in others where statutory power is given, the courts, on decreeing divorce, have asserted the right to vest title to the husband’s property in the wife as permanent alimony. A number of these cases are cited and relied on by counsel to sustain the decree here; notably the cases from Nevada. We will not take time to review these eases. They are all collated in a note to Cizek v. Cizek, a Nebraska case, reported in 5 Am. & Eng. Anno. Cases, 464, 469. In another ease note to Kerr v. Kerr, (Pa.) 9 Am. & Eng. Anno Cases, 89, 90, the cases upon the subject making a decree for alimony a lien on realty, under statutes, and in the absence of statutes, including our case of Goff v. Goff, 60 W. Va. 9 (53 S. E. 769), are reviewed and discussed. In the note to the first case,- the annotator says: “Though there is conflict of au
But the power of courts of equity -to decree alimony did not originate in any statute. It is a power inherent in them. Stewart v. Stewart, 27 W. Va. 167, 172-3, and cases cited; Carr v. Carr, 22 Grat. (Anno.) 168, and notes. It had its origin in the legal obligation of the husband, incident to the marriage state, to maintain his wife in a manner suited to his means and social position. Harris v. Harris, 31 Grat. 17. And the general rule is, without doubt, that the income of the husband, whether derived or to be derived from his personal exertions, or from permanent property, or from both, is the fund from which alimony is derived, and the amount will depend on the circumstances of eách case. Cralle v. Cralle, 84 Va. 202. Citing Harris v. Harris, and Carr v. Carr, supra, and Myers v. Myers, 83 Va. 806. The power given by our statute, above quoted, existed independently of the statute. The statute is little more than an affirmance of an old rule or principle of equity cognizance. The words "concerning the estate” of the parties, are evidently meant to give the court authority to protect each party in the possession and enjoyment of his or her respective estate, subject to such alimony as may be decreed, and not to authorize the transfer of the legal.title to the land by way of alimony. It was said by Judge Beannon, in Goff v. Goff, supra, that this statute is very broad, sufficient, as in that case, to justify the making of a money decree for alimony, a lien on the husband’s land, and to enforce the same by a sale of the property. Farther-than this we are not disposed by judicial interpretation to extend the statute.
In view of the history of the legislation in Virginia, and in this state on this subject, and the judicial decisions referred to, we are disposed to arraign ourselves on the side of the greater weight of authority, in denying the power of the Court, independently of statute, or of some special circumstances, not present in this case, to transfer to the wife, as permanent alimony, the fee simple title of the husband in his lands. Especially should this rule prevail in decreeing a divorce from bed and board. The parties may become reconciled and be restored to all their martial rights and relations, and it would be bad practice to lay down a different rule.
Affirmed in part. Reversed in part. Remanded.