Bailey v. Bailey

• Decision Date: 30 June 1871
• Citation: 62 Va. 43
• Parties: BAILEY v. BAILEY.
• Court: Virginia Supreme Court

62 Va. 43

BAILEY v. BAILEY.

Supreme Court of Appeals of Virginia.

June 30, 1871

1. Abandonment and desertion which entitles a husband or wife to a divorce a mensa et thoro, consists in the actual breaking off of matrimonial cohabitation with the intent to abandon and desert in the mind of the party so acting. And the intent to desert being once shown, the same intent will be presumed to continue until the contrary appears.

2. The statute, Code, ch. 109, fixes no period for which the desertion must have continued to entitle a party to a divorce a mensa et thoro. Desertion for less than five years may be good cause, and the question is to be determined by the court exercising a sound discretion, according to the facts and circumstances of each case, and the principles of law applicable thereto.

3. The act, Code, ch, 109, § 9, is not intended to change the rules of evidence in divorce cases; and the letters of the parties are admissible in evidence for the plaintiff to show the intention of the defendant to abandon and desert her.

4. B leaves his home and family in November 1865, and returns in November 1866. He remains at home two weeks, and then leaves it, and had not returned in September 1867, when Mrs. B files a bill for a divorce. B's intention to desert his wife being clearly proved, she is entitled to a decree for a divorce a mensa et thoro.

5. For the principles on which the amount of alimony will be fixed see opinion.

6. Where a wife is compelled to seek a divorce from her husband on account of his misconduct, in fixing the amount of her alimony, the earnings of the husband may be taken into the account, if necessary, as well as his property.

7. In such a case, in fixing the amount of alimony, the court will not seek to find how light the burden may possibly be made but what, under all the circumstances, will be a fair and just allotment.

This was a suit instituted in September 1867, in the Circuit court of Washington county, and afterwards removed to the Circuit court of Wythe, by Georgiana F. Bailey against her husband James A. Bailey, for a divorce. The grounds for a divorce stated in the bill are adultery, cruelty and abandonment, by her husband. The first two of these grounds are not sustained.

It appears that the parties were married in June 1865, in the county of Washington. Bailey was a widower with nine children, some of them nearly or quite of age, and others quite young. The wife was young. He lived on his farm in that county, and the father of Mrs. Bailey lived about a mile or a mile and a half from him. Bailey, who was a professional gambler, made a visit some weeks after his marriage to Richmond, where he stayed less than a month, when he returned home; and the parties seem to have lived happily together whilst he remained at home. In November 1865 he left home on a professional tour, went first to Memphis, from thence to St. Louis, and then to New York, and he did not return to his home until November 1866. During this period Mrs. Bailey seems to have stayed for the most part at her father's and to have gone over occasionally to Mr. Bailey's house; and she, during his absence, became the mother of a boy. Bailey stayed at home on this visit about two weeks, and then returned to New York, and had not returned to his home in Washington when the bill was filed in this case.

During this last visit to his home, he seems to have treated his wife with coldness and reserve, and he left without bidding her farewell, though it appears he enquired for her to do so.

The plaintiff filed with her bill copies of several letters which she alleges she wrote to her husband after he left home on his last visit; and she filed with an amended bill other letters of hers, and also four letters of his. The character of these letters are given by Judge Christian, in delivering the opinion of the court. In one written by him, and dated New York, January 22, '67, he says: " I have received two or three letters from you since I saw you, and concluded I would drop you a line. You wish to know whether I wish you to go up home and stay. As to that question, you can use your own discretion about. If you choose to go there and stay, you can do so, and I will support you and your child; but as for ever living together as husband and wife, that is played out. Your treatment, and your conduct towards me during my short stay at home, and your remarks about me after I left, and that beautiful letter you wrote me, have entirely alienated my feelings from you. I have no love for you, nor never will again, for the simple reason that you are not what I believed you to be."

The other letters need not be inserted; one dated June 16th, 1867, could leave no doubt that he had determined not to live with his wife as such; nor does he deny this in his answer, but he says he had made sufficient provision for her support at his house. The other important facts in the case are stated in the opinion.

The cause came on to be heard on the 14th of October 1869, when the court held that the conduct of the defendant amounted to abandonment and desertion of the plaintiff, and made a decree that she be divorced from the bed and board of the defendant. The care and custody of the child of the marriage was given to the mother; and the sum of thirty dollars per month, the sum reported as proper by the commissioner, was allowed to her for the support of herself and her child, which allowance was to commence from the 1st of December 1868; it appearing that nothing had been paid since that time. And this sum was to continue to be paid monthly so long as the parties remain in their present condition, and until by death or other change of circumstances the same may become improper. From this decree James A. Bailey applied to a judge of this court for an appeal; which was allowed.

John T. Campbell and B. R. Johnston, for the appellant.

John W. Johnston, for the appellee.

OPINION

CHRISTIAN, J.

This is an appeal from the Circuit court of Wythe county. The bill is filed by Georgiana F. Bailey against her husband, James A. Bailey, seeking a divorce. The court below decreed a divorce a mense et thoro, and from this decree an appeal has been allowed to this court.

Happily for the interests of society, and the sanctity of marital rights and relations, suits of this character are not of frequent occurrence in this State. And in these modern days of so-called social progress and social reform, it is a fact worthy of record, and one which fitly illustrates the purity of social life, and the inviolable sanctity of the marriage bond in this State, that there can be found but two reported cases, in all its judicial history from the foundation of the Commonwealth down to the present time, touching questions arising out of the separation of husband and wife. And the two cases referred to were not suits for divorce, but for alimony, brought by the wife after desertion by the husband.

These facts speak volumes in favor of the morality, purity and chastity of that social life, which recognizes marriage as the very basis of the whole fabric of civilized society, and seeks to preserve its sanctity inviolable. We regret that this first case must be put upon the record of reported cases in Virginia.

The plaintiff's bill charges the defendant with adultery, cruelty, and abandonment, or desertion, and prays " to be divorced from her said husband so far as facts upon final hearing may justify," and asks the court for a decree for so much of his estate " as may be necessary to support her and her child so long as she and the said James A. Bailey may both live." The charge of adultery is not proved; nor is there evidence sufficient to support the charge of cruelty. Indeed, both charges are abandoned by the learned counsel for the appellee (Mrs. Bailey) in his argument of the case here; and the whole case rests upon the charge of abandonment or desertion.

According to the provisions of the Code, ch. 109, §7, " a divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt and abandonment or desertion." Before considering the facts of the case, it becomes necessary to enquire, what in its legal sense, is that desertion, for which a court may decree a divorce a mensa et thoro? Upon this question, we have no express adjudication in this State. But desertion is well defined by the decisions of the English ecclesiastical courts and of the courts of the other States in the Union.

Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. Bishop on Marriage and Divorce, § 506. The intent to desert is usually the principle thing to be considered. Obviously, a mere separation by mutual consent, is not desertion in either, nor as a matter of proof can desertion be inferred against either from the mere unaided fact that they do not live together, though protracted absence, with other circumstances, may establish the original intent. Gray v Gray, 15 Alab. R. 779; 1 Harris' Pa. R. 211; Bishop on Marriage and Divorce, § 511; 9 B. Mon. R. 295, 303; 3 Metc. R. 257. But it is equally obvious, and it follows from well settled principles of law, that when a separation and intent to desert are once shown, the same intent will be presumed to continue until the contrary appears. 1 Greenl. Ev. § 41, 42; Gray v. Gray, 15 Alab. 779. Under our statute, no particular period is prescribed in which the desertion shall continue to entitle a party to a divorce a mense et thoro. By the § 6, of ch. 109, Code, it is provided that a divorce from the bond of matrimony, among other...