125 Va. 526 | Va. | 1919
delivered the opinion of the court.
The complainant, Mrs. Robert W. Wright (Minnie A. Denton Wright), appeals from a final decree sustaining a demurrer to her bill for divorce, filed against her husband, Robert W. Wright, which alleges as the ground therefor that he willfully deserted her on January 27, 1914, and that such desertion has continued for more than three years. The bill also alleges that on May 26, 1914, her said husband was adjudged a lunatic, and was thereupon confined in the Western State Hospital; that he had been permitted since then to come to Louisa county on a furlough, and while there seemed perfectly natural and sane, though he is still confined as a lunatic. The court appointed a guardian ad litem for the defendant, who filed a general demurrer to the bill, and for cause of demurrer relied upon the insanity of the defendant, occurring within less than three years from the date of the alleged desertion.
Under the Virginia statute, at any time during the three years succeeding the abandonment the offending party has the undoubted right to return to the other, and if that right is exercised there is no ground for divorce. For three years, in Virginia, such offender may repent and return. The ground for an absolute divorce does not accrue from the mere abandonment. It must be willfully continued for the period fixed by the statute, and the cause of action does not accrue until that time has elapsed. Of course, an insane
In Blandy v. Blandy, 20 App. D. C. 535, this is said: “For the continued desertion must depend upon the continued intention, and, as has been well said, but for the insanity of the wife she may have repented and returned to her husband before the expiration of the statutory period.”
In Storrs v. Storrs, 68 N. H. 118, 34 Atl. 672, it is held that the time during which the defendant was insane could not be included in computing the 'statutory period. The authorities are collected in 9 R. C. L. 357, 129 Am. St. Rep. 708, and 138 Am. St. Rep. 160, 34 L. R. A. 161.
So that while in some cases there may be undue hardship, we cannot amplify the grounds of divorce fixed by the statute, or adjudge an insane person to be capable of determining whether to seek a reconciliation or to persist in the willful intent to abandon for the period prescribed by the statute. If there be hardship, the question is one of public policy for the consideration of the General Assembly.
Affirmed.