133 S.E. 756 (Va. 1926), Butler v. Butler

Citation:133 S.E. 756, 145 Va. 85
Opinion Judge:CHICHESTER, J.
Attorney:Jno. S. Barbour, Hugh Reid and Ball & Douglas, for the appellant. J. K. M. Norton, for the appellee.
Case Date:June 17, 1926
Court:Supreme Court of Virginia

Page 756

133 S.E. 756 (Va. 1926)

145 Va. 85




Supreme Court of Virginia

June 17, 1926

Appeal from a decree of the Circuit Court of the city of Alexandria. Decree for respondent. Complainant appeals.



The opinion states the case.

Jno. S. Barbour, Hugh Reid and Ball & Douglas, for the appellant.

J. K. M. Norton, for the appellee.


Page 757

[145 Va. 87] CHICHESTER, J.

Alice Loving Butler, hereafter referred to as complainant, filed her bill for divorce against her husband, J. Jarvis Butler, on the ground of cruelty. Respondent, J. Jarvis Butler, filed his answer and cross-bill, denying the charges of cruelty and charging wilful desertion without just cause, praying for a divorce on account of the alleged desertion, and for the custody of two minor children, Harriet F. Butler, aged eight years, and J. Jarvis Butler, aged three years, born of the marriage.

Voluminous depositions were taken on the issues thus joined, and on the 30th of March, 1925, the court decreed a divorce to respondent on the ground of desertion, and the custody of the minor children, with provision that complainant should have the right to see her children "and associate with them at all reasonable times." From this decree an appeal was awarded.

The question as to whether respondent was cruel to that extent which would justify desertion by complainant was passed upon by the learned chancellor of the trial court upon a conflict of evidence with the preponderance in favor of respondent's contention.

The evidence as a whole clearly justified the conclusion that the parties, at intervals during the ten years they were married, lived very unhappily together; that the wife was erratic and very uncertain in temperament, gushingly affectionate at times and unreasonable and violent at others, her violence taking the form of the most vicious and apparently uncalled for [145 Va. 88] assaults upon her husband, during which it was necessary to restrain her by force. The final desertion by the wife took place on March 23, 1923, after one of these scenes, during which complainant kicked and scratched respondent and respondent slapped complainant on the thigh.

The husband was probably not always as long-suffering as he might have been, but that he was provoked beyond endurance at times is shown beyond a doubt. Under all the circumstances, in view of his wife's conduct, he was not guilty of such cruelty as would justify desertion by her.

The law does not permit courts to sever marriage bonds and to break up households merely because husband and wife, through unruly tempers, lack of patience and uncongenial natures, live unhappily together. It requires them to submit to the ordinary...

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