
    *Carr v. Carr.
    March Term, 1872,
    Richmond.
    1. The construction of § 7, ch. 109, Code of 1860, in relation to divorces a mensa et tJioro, given in Bailey v. Bailey, 21 Gratt. 43, approved and acted on.
    2. Husband and Wife—Legal Grounds for Wife’s Desertion.—Thai, a husband is rude and dictatorial in his speech to his wife, exacting in his demands upon her, and sometimes unkind and negligent in his treatment of her, even when she was sick, and worn and weary, in watching and nursing their sick child, is no legal grounds for her leaving him.
    3. Same—Same—Alimony.—A wife having left her husband without good legal grounds is not entitled to alimony.
    
      4. Same—Same—Custody of Children.—A wife having left her husband, without good legal grounds,and taken their child with her, though there is no other imputation upon her conduct, upon a decree for a divorce a mensa et thoro at the suit of the husband, on the ground of desertion, the child will be restored to the husband, though it is a female and but three years old; and though the husband’s treatment of his wife has been coarse, rude, petulant, close, exacting, and penurious, leaving her to bear alone burdens and trials which it should have been his highest pleasure to share and to relieve,
    This was a suit in equity, brought in July 1869, in the Circuit court of Eoudotm county, by Thomas E. Carr, against his wife, Ascenith Ann Carr, for a divorce a mensa et thoro, and the recovery of the child of the marriage. The only ground on which the divorce was asked was desertion. This was admitted in the answer, and proved in the cause. The defendant insisted that she went with his consent. The parties, who seem to have been raised within a half mile of each other, were married on the 20th of May 1867. A female child was born 'x'to them on the 7th of April 1868; and on the 12th of Juljr she left her husband, taking her child with her, and went to her father’s house, where she has since lived.
    Thomas I). Carr was the only son of his mother, and she was a widow, and he had three sisters. At the time of his marriage he lived with his mother, and, probably, one sister, on a farm in which the mother was entitled to dower, which had not been laid off to her; and subject to her dower, it was the property of Thomas E- Carr and his sisters. He took his wife to this house, where they continued to live until she left him.
    Thomas E. Carr was honest, industrious, sober, and correct in his dealings; but he was penurious, selfish, illtempered, and unsocial. His wife, who seems to have been quite young, was virtuous, correct, of affectionate temper, fond of her friends, social in her nature, and withal spirited, and quick to feel. It is easy to imagine that the lives of two persons so unlike in disposition, and yet so closely united, would not glide on without a ripple. Their collisions seem to have been frequent. He was sometimes rude and dictatorial in his speech to her, and exacting in his demands, and sometimes unkind and negligent in his treatment of her, even when she was sick, or worn and weary with watching and nursing their sick child. She, on the other hand, was quick to feel his treatment, not very patient to bear it, nor with the self-denial to endeavor to accommodate herself to his disposition and wishes. The consequence of these disagreements was, that she twice left him. The first time she returned after a day or two, upon his request. The second time she has remained away.
    There are letters from the husband to the wife, filed by him, urging her to return to him, and assuring her of his continued affection. The first is dated November 3d, 1868, and to this he received no answer. The second is dated March 2Sth, 1869, and to this he received a'reply, with a very decided refusal to return, *and which evinces that she was still smarting under the ill treatment she at least considered she had received. The third is dated March 20th, ’71. In this he tells her that from the day she left him—then nearly three years—to the present time, there had been no hour in which he would not gladly have taken her back to his home and his heart. He says the time is near at hand for the hearing of their case, and he beseeches her to come back and let him prove to her that he can and will be her loving and devoted husband.
    The cause came on to be heard on the 24th of April 1871, when the court made a decree giving to the plaintiff a divorce a mensa et thoro from the defendant, and giving to him the custody of the child, and refusing alimony to the wife. And leave was granted to either party to come into the court and apply for any further relief in the cause. Erom this decree Mrs. Carr obtained an appeal to this court.
    Harrison, for the appellants.
    Hunton, for the appellee.
    
      
      Husband and Wife—Legal Grounds for Wife’s Desertion.—Desertion is a breach of matrimonial duty, and is composed, first, of the breaking off of matrimonial co-habitation; and, secondly, an intent to desert in the mind of the offender. Both, must combine to make the desertion complete, and a mere separation by mutual consent is not a desertion by either party. Latham v. Latham, 30 Gratt. 307, and note. In Harris v. Harris, 31 Gratt. 13, it was held that the circumstances must be very peculiar indeed, if any such case there could be, which j ustifying a decree for an absolute divorce in behalf of the husband for wilful desertion of the wife, would at the same time warrant a decree in her behalf. See also, Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. Rep. 289.
    
    
      
      Same Same—Custody of Children.—As to the custody of the children when the wife has deserted the husband without good legal grounds, see Latham v. Latham, 30 Gratt. 307. and note.
      
      ALiriONY.
      Definition. - Alimony is an allowance made to the wife out of the husband’s estate or income upon a decree of separation. Latham v. Latham, 30 Gratt. 338.
      Origin of Alimony.—“Alimony 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 Gratt. 17.
      Amount of Alimony—Discretion of Court—General Rule.—Says the court, in Bailey v. Bailey, 21 G ratt. 57. "In regard to allotment for alimony, there is no fixed rule, it is a matter within the discretion of the court. Yet. it is not an arbitrary but a judicial discretion, to be exercised in reference to established principles of law relating to the subj ect, and upon an equitable view of all the circumstances of the particular case. The general rule in respect to alimony is, that the wife is entitled to a support corresponding to her condition in life and the fortune of her husband. And in the language of Nelsok, O. X, in Burr v. Burr. 7 Hill (N. Y.) 307: 'When the delinquency of the husband has been established, and the wile is the injured party driven by his cruelty or other wrongful conduct, from the comfort of domestic enjoyments, she should be liberally supported.’
      “But while alimony is commonly defined a proportion of the husband's estate, yet the duty of a husband to maintain his wife does not depend alone upon his having visible tangible property. While the parties are living together, they are bound to contribute by their several personal exertions to a common fund, which in law is the husband’s, but from which the wife may claim support. If she is compelled to seek a divorce on account of his misconduct, she loses none of her rights in this respect, only she is to draw her maintenance in a different way; that is under a decree for alimony, based, if he has no property, upon his earnings or ability to earn money.” Cited and approved in Miller v. Miller, 92 Va. 200, 23 S. E. Rep. 232; Harris v. Harris, 31 Gratt. 17; Cralle v. Cralle, 84 Va. 202, 6 S. E. Rep. 12.
      income of Husband, the Fund from Which Alimony is Granted.—In respect to alimony the general rule is that the income of the husband, however derived or derivable, is the fnnd from which the allowance is made. Heninger v. Heninger, 90 Va. 274, 18 S. E. Rep. 193, citing Bailey v. Bailey, 21 Gratt. 43; Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12.
      “The general rule undoubtedly is, 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 fnnd from which alimony is decreed, and the amount, as already said, will depend upon the particnlar circumstances of each case.” The court, in Cralle v. Cralle, 84 Va. 202, 6 S. E. Rep. 12, citing Harris v. Harris, 31 Gratt. 13; Carr v. Carr, 22 Gratt. 168; Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 630.
      Instances of Amount Allowed.-—Twenty dollars a month is not too much, where husband owns a farm ! of the value of $2,500, personalty of $500 value, is strong and in good Health, between 40 and 45 years of age, and the wife is delicate with five young children. Owens v. Owens, 96 Va. 191, 31 S. E. Rep. 72.
      One hundred and fifty dollars per annum Is reasonable alimony, where it is shown that the husband is of good business habits and owns property of $3,500 value. Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12.
      Six dollars a month to the wife who has an infant child is little enough, where the husband owns a farm of the value of about $1,250, two horses, and other personal property of no great value, and is an able-bodied man of 35 years. Trimble v. Trimble, 97 Va. 217, 33 S. E. Rep. 531.
      Alimony Hay Be Granted Independently of a Suit for Divorce.—“In Virginia the statutes allow alimony as incident to a decree for a divorce. But this court has gone farther, and held that equity has jurisdiction in an independent suit to decree in favor of the wife in proper cases—as, for example, when she has heen abandoned by the husband, or driven from his house by ill treatment, and compelled to seek an asylum elsewhere.” The court, In Latham v. Latham, 30 Gratt. 338.
      Alimony may be granted independently of any divorce or application for one, as where the misconduct of the husband drives the wife from her home, or he turns her out of doors, or perhaps for any cause for which a divorce a mensa would he granted if asked for. 1 Minor’s Inst. (4th Ed.) 308; Purcell v. Purcell, 4 H. & M. 507; Almond v. Almond, 4 Rand. 662; Spencer v. Ford, 1 Rob. 648.
      In Almond v. Almond, 4 Rand. 662, Judge Cabb, delivering the opinion of the court, said: “Suppose the husband turns his wife out of doors, or treats her so cruelly that she cannot live with him; suppose him to persevere In refusing to take her back, or to provide a cent to feed and clothe her. Surely, In a civilized country, there must be some tribunal to which she may resort. In such a case a court of equity would unquestionably stretch out its arms to save and protect her.”
      Alimony Pendente Lite.—The court in term or the judge in vacation may at any time pending the suit, in the discretion of such court or judge, make any order to compel the husband to pay any sums necessary for the maintenance of the wife and to enable her to carry on such suit. Va. Code, § 2261.
      Pending Appeal—Lower Court Allowing Wife Counsel Fees to Prosecute Appeal.—In Cralle v. Cralle, 81 Va. 773, Hinton, J., in delivering the opinion of the court, intimates that after an appeal is taken to a decree, the lower court has no right to allow the wife money to defend such appeal or for maintenance pending the appeal, saying, “Thenceforth (». e. after supersedeas is allowed) the cause is regarded as pending in the appellate court, and any order or decree that is made by the subordinate court must be simply null and void.” The case however was dis" missed for want of jurisdiction, so the action of the lower court in allowing the alimony was not passed on.
      Alimony Allowed—Husband Dies Pending Appeal— The Rule.—A certain sum monthly having been allowed as alimony to the wife, the husband appeals from the decree, and pending the appeal dies. The appellate court affirming the decree, the wife is entitled to the allowance up to the time of his death. Francis v. Francis, 31 Gratt. 283.
      Estimating Alimony—What Hay Be Considered—Instance.—In estimating the husband’s property in reference to the amount of alimony to be allowed tbe wife, it is proper to admit evidence of a decree for a legacy in favor of tbe husband. Cralle v. Cralle. 84 Va. 198. 6 S. E. Rep. 12.
      Capacity of Wife to Earn Money Not to Be Considered. —In considering the amount of alimony to be allowed tbe wife, tbe capacity of the wife to earn money, is not a question, and therefore not a proper subject of inquiry by tbe commissioner. Cralle v. Cralle, 84 Va. 198, 200, 6 S. E. Rep. 12.
      Wife Not Entitled to, When Her Suit Fails — Where tbe wife sues for divorce, and such a suit fails, she is not entitled to alimony. Latham v. Latham, 30 Gratt. 307, 339, although In this case Staples, J., intimates that there may be cases where the court would grant to the "wife alimony, and yet not allow her a divorce.
      Wife May Forfeit by Her Misconduct.—Although alimony is the right of the wife she may by her misconduct forfeit it: and where she is the offender she cannot have alimony on a divorce decree in favor of her husband. Harris v. Harris, 31 Gratt. 17.
      The wife is entitled to no alimony if she leaves the home her husband has provided for her. vithont sufficient cause. Carr v. Carr, 22 Gratt. 168. Mr. Minor defines such sufficient cause, as any cause for which a divorce a mema would be granted, if asked for. 1 Minor’s Inst. (4th Ed.) 308.
      Where a wife leaves her husband without good legal cause, she is not entitled to alimony. The reasonable or justifiable cause which villwarraut a willful separation and refusal to return to the home of her husband, must be such as would authorize a suit for divorce a mensa et thoro. Martin v. Martin, 33 W. Va. 695. 11 S. E. Rep. 12.
      Court Will Not Allow Alimony Where Wife is Well Off.—Where tbe wife owns an estate amply sufficient for tbe support of berself and children and of much greater value than that of the husband, the court should not decree that the husband shall contribute to their support. Myers v. Myers. 83 Va. 806, 815, 6 S. E. Rep. 630.
      Deed in Lieu of Alimony No Bar to Costs of Suit.- - Where the wife by deed for an adequate consideration releases all her claims for alimony for the husband, such deed does not preclude her from asking the court to decree her all costs and expenses in a suit for divorce against her by her husband, where such suit has failed. Engleman v. Engleman, 97 Va. 487, 34 S. E. Rep. 50.
      Allowing the Wife Counsel Fees—Instance.—The appellate court will not allow counsel of the wife an additional fee for representing her. in the appellate court, where the record does not show the ability of tbe husband to meet and pay such fee. Engleman v. Engleman, 97 Va. 494. 34 S. E. Rep. 50.
      Wife Has No Right to Any Specific Property of f fus hand.—A claim for alimony on the part of the wife does not give her a right to any specific property of the husband. Almond v. Almond, 4 Band. 662.
      flarriage a Prerequisite.—Marriage is of course a prerequisite to alimony, but It may be proven from circumstances, such as co-habitation, name, and reputation. Purcell v. Purcell, 4 H. & M. 507.
      After Decree Court Should Not Enjoin Husband from Disposing of His Property.—Where the court allows the wife alimony it Is improper to enjoin the husband from disposing of or encumbering his real estate. Such conditions are harsh and impressive. The sums decreed to be paid the wife from time to time should have been made a charge upon such real estate. Trimble v. Trimble, 97 Va. 217, 33 S. E. Rep. 531.
      Wife Summoned by Publication, Appears, Shows Injustice Has Been Done Her—Asks for Alimony Not That Decree Be Set Aside.—In 1874, H. (the husband) obtained a decree of divorce upon an order of publication, a copy of the decree not having been served on W. (the wife), she after two years appears and asks that the cause be reheard and alimony granted her, but does notask to have the decree set aside; the evidence shows that injustice was done her, and her case fully established. Held, there is no reason why she should be refused the relief (alimony) she seeks for, because less is asked than might have been claimed (decree of divorce set aside). But in estimating the proper amount of alimony it is improper to consider property acquired by H. after the decree of divorce. Cralle v. Cralle, 79 Va. 182.
      Alimony as a Provable Debt in Bankruptcy Proceedings.—See article in 5 Va. Law Reg. 365, b3r W. G. Mathews of the Charleston (W. Va.) Bar.
      Foreign Judgments.—A decree for alimony not in a divorce suit, rendered by an Ohio court having jurisdiction will at the suit of the wife against the husband be enforced in this state. Stewart v. Stewart, 27 W. Va. 167.
    
   BOUEDIN, J.,

delivered the opinion of the court:

This is an appeal from a decree of the Circuit court of Noudoun county, at its April term, 1871, in a chancery suit instituted in said court by Thomas E. Carr, against Ascenith A. Carr, his wife, seeking a divorce a mensa et thoro, on the ground of abandonment or desertion by the wife; and seeking also to obtain the custody of his infant daughter, the only child of the marriage, who had been taken from her father’s home by the mother.

The divorce as prayed for was granted by the court; the child was remanded to the custody of the father, and alimony was denied to the wife.

Erom this decree an appeal was allowed to this court, and the following errors are assigned by the appellant:

1 ‘1st, It was error to grant a divorce a mensa et thoro *upon the pleadings and proofs in this cause, it appearing therefrom that the petitioner had cause for leaving, and that she left her husband with his consent and concurrence.

1 ‘2nd, It was error not to grant something for maintenance to the petitioner, under the circumstance of the case.

“3rd, It was error to take from the petitioner, and give to the complainant, the custody of the child.

“4th, There was no provision for the mother to have access to her child.”

The questions thus presented for our consideration have been discussed with much learning and ability by counsel on both sides, and numerous authorities have been cited; hut as their solution depends on the construction of a statute of this State of comparatively recent date, and as that statute has received judicial interpretation by this court in the case of Bailey v. Bailey, decided at Wytheville, June term, 1871, and reported 21st Gratt. 43, the court deems it unnecessary to comment in detail on the previous authorities.

The 7th section of chapter 109, Code of 1860, p. 630, authorizing the chancery courts to decree divorces from bed and board, is as follows:

“§ 7. A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, abandonment or desertion. ’ ’

Sections 12 and 13, of same chapter, confer on the courts full power, on granting a divorce, to make such orders as may seem just and proper under the circumstances, in relation to alimony to the wife, the custody and maintenance of the minor children, and the property of the parties.

The case of Bailey v. Bailey, 21 Gratt. 43, above cited, in which this statute was considered and construed by the court, was just the converse of the case under consideration. It was a suit by the wife against the husband, ^seeking a divorce a mensa et thoro, for abandonment and desertion by the latter. The fact of desertion by the husband, proved almost exclusively by the letters of the parties, was considered by the court as satisfactorily established, and the divorce was decreed. Alimony was allowed the wife; and the custody of her only child, an infant of very tender age, was given to her.

In considering that case the court say that “under our statute no particular period is prescribed in which the desertion shall continue, to entitle a party to a divorce a mensa et thoro;” that the courts had not laid down “any particular rules of evidence for determining whether a separation does or does not, as a matter of proof, amount to desertion. ’ ’ And they go on, very property to say, that “the question does not admit of such rules, but each case must rest on its own circumstances.” But the following proposition is affirmed by the court, as the result of the English and American cases on the subject: “We think it may be safely asserted, as a general principle of law, to be extracted from the English and American cases on the subject, that wherever there is an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, in such case desertion is established, and the party is entitled to a divorce a mensa et thoro. ’ ’ 21 Gratt. 48-9.

Such being the law, there can be but little difficulty in applying it to the facts of this case. Without recapitulating those facts, which we deem wholly unnecessary, it is enough to say, that the pleadings and proofs in the cause abundantly establish “an actual breaking off of matrimonial cohabitation, combined with the intent to desert,” on the part of the wife, without legal cause or excuse—an intent deliberately formed, and unreasonably and persistently adhered to, down to the rendition of the decree, in the face of repeated and earnest appeals and entreaties to her by the husband to return. Without *just cause she has violated her marriage vow, by thus breaking off matrimonial cohabitation with her husband, and has deserted him and his home with the declared purpose of never returning. Under such circumstances, we are of opinion, in the language of this court in Bailey v. Bailey, that “desertion is established, and the party deserted is entitled to a divorce a mensa et thoro.” There was no error, then, in granting the divorce.

2. We are further of opinion that the Circuit court did not err in refusing to allow alimony to the wife under the circumstances of this case. She was in the eye of the law, and in fact, the offending party. She has, without sufficient cause, deserted her husband and his home, and established herself elsewhere, thus disregarding his comfort and happiness, her own duty, .and the decencies of society. To concede to her, under such circumstances, the right to demand of her husband a separate support in her new establishment, would not only be a reward to misconduct, immoral and corrupting in its tendency, but would give a rude shock to the sanctity of the marriage contract. Happily, the law does not require it, and policy and propriety alike forbid it.

Alimony is a right of the wife, and a duty of the husband, growing out of matrimonial cohabitation. When the .wife, without cause, and against the wish .of her husband, breaks off cohabitation with intent to desert him, her right to alimony ceases. Bishop on Mar. & Div. 564, and cases there cited. So long as the husband has committed no breach of matrimonial duty, he is under no obligation to provide the wife a separate maintenance; and she cannot claim it on the ground of her own misconduct. Bishop, ibid.

In Boggess v. Boggess, 4 Dana’s R. 307, C. J. Robertson, delivering the opinion of the court, says: “a wife who has voluntarily abandoned her husband should not have a decree for her separate maintenance, unless her abandonment of him was, without her fault, rendered 'x'necessary for her safety or happiness, and was consistent with social order and public policy.” We think the above ought to be, and is the law; and we have already said, that in our opinion the desertion of the husband by the wife in this case was not otily without sufficient cause, but was in violation alike of “social order and public policy.” There was no error, therefore, in denying alimony to the appellant'.

3. Nor did the court err in remanding the infant daughter to the custody of her father.

The child was three years old at the date of the decree of the Circuit court, and is now four. The tender nursing period has passed by, and the time for moral training and impressions has arrived; and the court must decide whether there is anything in the circumstances of this case which, having in view the good of the child, renders it necessary and proper that it should remain longer with the mother. We think not, but the reverse. We concur with the learned judge of the Circuit court when he says, that she ‘ ‘has too lightly abandoned duties which she was bound by religion, morals, and the laws of society conscientiously to perform. ” Ror matters which, however painful and annoying at the time, are not of infrequent-occurrence in early married life, and are, at most, of comparatively small importance, she has undertaken, of her own accord, to disregard and sever the sacred bond of marriage—“the prop and bulwark of the social system”-—and to throw herself upon society, as was said by this court in Bailey v. Bailey, “in the undefined character of a wife without a husband, burdened with disgrace” ; and we are asked to compel the .father and deserted husband to allow his innocent and unoffending daughter to share with the mother this undefined, ambiguous position, this burden of disgrace, during the critical period of moral training and education, when the mother has neither a home to ' which to take her (except at sufferance) nor means whereby to ^maintain her. We are of opinion . that this should not be done, and that the Circuit court did not err in remanding the child to the custody of its father.

4. We are further of opinion that there was no error in failing to provide that the mother should have access to the child. It does not appear to have been asked, and was in fact unnecessary; first, because the decree provides that either party may apply at any time for such further order as may be desired; and secondly, because the record shows that the heart and home of the husband are ever open to receive his misguided wife.

Upon the whole, we are of opinion that there is no error in the record of which the appellant can complain. But in holding, as we do, that there was no sufficient cause for the desertion of the husband by the wife in this case, we must add that we are very far from holding the husband blameless. On the contrary, his conduct towards his young and inexperienced wife has in many respects been in the highest degree reprehensible. He has treated her with too little tenderness and consideration in the new and trying position in which she was placed. He has at times been coarse, rude, and petulant, when -he should have been gentle, soothing, and affectionate. He has left her to bear alone burdens and trials which it should have been his highest pleasure to share and relieve; and he has been close, exacting and penurious with her, when he should have been, to the extent of his means, open handed, liberal, and generous. We think he has much, very much, for which to reproach himself. Both parties have been to blame. A proper spirit of forbearance and conciliation on each side would have saved much trouble. But we believe that neither contemplated or desired the sad consequences which have resulted from their unhappy dissentions. Believing this, and believing also that there is no good and substantial reason why the parties should not be reunited, and lead for the future respectable and *happy lives, we are reluctant, by an unconditional decree of divorce a mensa et thoro and perpetual separation, to close the door apparently against reconciliation. The decree will be so modified, therefore, as to give the appellant the option, within six months from this day, of returning voluntarily, with her child, to the home of her husband, to his bed and board; and should she fail to avail herself of this invitation, the decree of the Circuit court will stand affirmed as an act of this day. Should she return, the Circuit court will be instructed, on her motion, to set aside the decree, and dismiss the bill.

In ordinary cases this affirmance would be with costs to the appellee, as the party substantially prevailing; but this being a suit between husband and wife, and the latter being without estate, the husband must pay the legal costs in both cottrts.

The decree is as follows:

The court is of opinion that there is no error in the record of which the appellant can complain. Brit for reasons assigned in the written opinion of the court, it is adjudged, ordered and decreed, that the appellant, Ascenith A. Carr, be allowed the period of six months from this day, within which she is invited to return with her child to the bed and board of her husband, Thomas 13. Carr; and unless she shall voluntarily so return within the period aforesaid, then the decree of the Circuit court of Uoudoun county of April term, 1871, shall stand affirmed as an act of this day. Should she elect so to return, she shall be received and treated by the appellee as his wife; and in that event, the said Circuit court is directed, on her motion, to set aside and annul the decree of April term aforesaid, and dismiss the bill.

It is further ordered, that the appellee, Thomas 13. Carr, do pay the legal costs of suit in both courts.

Decree amended and affirmed.  