Carr v. Carr

Decision Date10 April 1872
Citation63 Va. 168
PartiesCARR v. CARR.
CourtVirginia Supreme Court

1. The construction of §7, ch. 109, Code of 1860, in relation to divorces a mensa et thoro, given in Bailey v Bailey, 21 Gratt. 43, approved and acted on.

2. That 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. A wife having left her husband without good legal grounds is not entitled to alimony.

4. 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 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 Loudoun 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 to them on the 7th of April 1868; and on the 12th of July she left her husband, taking her child with her, and went to her father's house, where she has since lived.

Thomas E. 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 25th, 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. From this decree Mrs. Carr obtained an appeal to this court.

Harrison, for the appellants.

Hunton, for the appellee.

OPINION

BOULDIN J.

This is an appeal from a decree of the Circuit court of Loudoun county, at its April term, 1871, in a chancery suit instituted in sad 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.

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

" 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.

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; but 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...

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2 cases
  • Mullen v. Mullen
    • United States
    • Virginia Supreme Court
    • September 8, 1948
    ...which favored the right of the father to the custody of his child. In numerous decisions we have modified the rule stated in Carr v. Carr, 22 Grat. 168, 63 Va. 168, decided in 1872, and in Latham v. Latham, 30 Grat. 307, 71 Va. 307, decided in 1878. This modification has been recognized by ......
  • Williams v. Williams
    • United States
    • Arkansas Supreme Court
    • October 31, 1921
    ... ... Reynolds [150 ... Ark. 325] v. Reynolds, 68 W.Va. 15, 69 S.E. 381; ... Ann. Cases, 1912-A 889; Stewart v. Stewart, ... 27 W.Va. 167; Carr ... ...

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