Harris v. Harris

• Citation: 72 Va. 13
• Parties: HARRIS v. HARRIS.
• Decision Date: 14 November 1878
• Court: Supreme Court of Virginia

72 Va. 13

HARRIS v. HARRIS.

Supreme Court of Appeals of Virginia.

November 14, 1878

1. Alimony had its origin in the legal obligations of the husband, incident to the marriage state, to maintain his wife in a manner suited to his means and social position, and although it is her right, she may by her misconduct forfeit it; and when she is the offender, she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty, he is under no obligation to provide her a separate maintenance, for she cannot claim it on the ground of her own misconduct.

2. According to the ecclesiastical law no alimony was allowable on a decree a vinculo matrimonii. And if under the Virginia statute the court has a discretion, upon decreeing such a divorce, to allow alimony to the wife, that discretion should be exercised upon the same principles which govern in a case of divorce from bed and board.

3. The circumstances must be very peculiar indeed, if any such case there could be, which justifying 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 that he should out of his own estate maintain her as long as she lived, although after the divorce she should become the wife of another.

4. The wife having left her husband in 1863, upon the ground that he would not control his servants and maintain her rightful authority as his wife, the husband is entitled to a decree for a divorce a vinculo matrimonii on the ground of desertion, on a bill filed by him in 1877. And the wife having left her husband without any sufficient cause, the court upon decreeing the divorce cannot allow her alimony out of the husband's estate.

This case was heard at Staunton, but was decided at Richmond. It was a suit in equity in the circuit cout of Nelson county brought in July, 1877, by Daniel M. Harris against his wife Sarah C. Harris, for a divorce a vinculo matrimonii, on account of desertion. There was no doubt that Mrs. Harris had left her husband's house some fourteen years before the suit was instituted, and had not returned.

The court below made a decree divorcing the parties and dissolving the marriage; and decreed that the plaintiff Daniel M. Harris, should pay to Mrs. Harris an annuity of $75 during her natural life, commencing on the 1st of May, 1878, the said annuity to be a continuing charge and lien upon his real estate; and that said annuity should be in lieu of all dower right which Mrs. Harris might otherwise have in his real estate; and liberty was given to Mrs. Harris to sue out her execution of fieri facias to enforce the collection of her annuity under the provisions of the decree, at any time on default of payment for thirty days by said Daniel M. Harris. And liberty was reserved to Mrs. Harris to apply to the court to subject the real estate, & c. Daniel M. Harris thereupon applied to a judge of this court for an appeal; which was awarded. The case is stated by Judge Burks in his opinion.

Robert Whitehead, for the appellant.

Fitzpatrick, for the appellee.

BURKS J.

The bill in this case was filed by a husband against his wife, praying a divorce from the bond of matrimony on the ground of alleged desertion by the wife for a period exceeding five years. What purports to be an answer to the bill by the wife was filed, depositions were taken by both parties, and at the hearing of the cause there was a decree of divorce according to the prayer of the bill, and further of an allowance to the wife of an annuity during her life, the payment of which was secured by a charge on the real estate of the husband. The husband is the appellant here, and complains of so much of the decree as makes the allowance to the wife.

By the Code of 1873, ch. 105, jurisdiction of suits for annulling and affirming marriages, and for divorces from the bond of matrimony and from bed and board for causes specified, is vested in the circuit courts and (by subsequent statute) in the corporation courts, on the chancery side thereof.

Section 9 provides, " that such suits shall be instituted and conducted as other suits in equity, except that the bill shall not be taken for confessed; and whether the defendant answer or not, the case shall be heard independently of the admissions of either party in the pleadings or otherwise," and that " costs may be awarded to either party, as equity and justice may require."

Section 12 is in the following words: " Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further order as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody, and maintenance of their minor children, and may determine with which of the parents the children shall remain; and the court may from time to time afterwards, on petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require."

It will be observed that the court, in the exercise of its jurisdiction over the persons and subjects mentioned in this last-named section, is invested with a very large discretion. We have to consider the nature and extent of that discretion and the exercise of it, so far only as it concerns " the estate and maintenance of the parties." On this branch of the case I do not propose to extend my inquiries beyond this limit.

The exercise of discretionary power by a judge to whom it is confided is always more or less embarrassing, and what is said by an English writer, speaking of the British constitution and jurisprudence, applies as well to ours, that it is a principle consonant to the spirit of our constitution, and which may be traced as pervading the whole body of our jurisprudence, that optima est lex quae minimum relinquit arbitrio judicis, optimus judex qui minimum sibi --that system of law is best which confides as little as possible to the discretion of the judge--that judge is the best who relies as little as possible on his own opinion. Broom's Leg. Max. 84.

Discretio est discernere per legem quid sit justum, says my Lord Coke, 4 Ins. 41, and " discretion," says Lord Mansfield, " when applied to a court of justice, means sound discretion guided by law. It must be governed by rule: it must not be arbitrary, vague and fanciful, but legal and regular." Rex v. Wilkes, 2 Burr. R. 25, 39.

It is not an unlimited power, but in all cases, where by law, whether statute or common law, a subject is referred to the discretion of the court, that must be regarded as a sound discretion, to be exercised according to the circumstances of each particular case. Daniel, J., in Commonwealth v?? Wyatt, 6 Rand. 694, 700. And Judge Christian, speaking of the allotment of alimony, citing Bishop on Mar. & Div. and other authorities, says, " that 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 subject, and upon an equitable view of all the circumstances of the particular case." Bailey v. Bailey, 21 Gratt. 43, 57.

These principles must guide us in the inquiry we are about to make, whether the learned judge of the circuit court, in the exercise of the discretion with which the law invested him, has erred in decreeing maintenance to the appellee during her life out of her husband's estate, after decreeing on his behalf a divorce from the bond of matrimony. Under the English ecclesiastical law as a part of the common law, the court, independently of the section (12) copied from the Code, could not have decreed any such allowance. Alimony, or an allowance for the maintenance of the wife, was never decreed on a divorce a vinculo matrimonii. It was confined to divorces from bed and board, and was an incident of decrees of that character. It is plain, however, from the language of the section of the Code referred to, that the court may, in the exercise of its discretion, extend it to a decree of divorce from the bond of matrimony.

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, and although it is her right, she may by her misconduct forfeit it; and where she is the offender, she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty, he is under no obligation to provide her a separate maintenance, for she cannot claim it on the ground of her own misconduct. 2 Bish. on Marriage & Divorce, § 377; Carr v?? Carr, 22 Gratt. 168, 173.

By analogy, this rule should be applied to a case of a decree a vinculo matrimonii. In such case, maintenance should not be allowed her for the same reason that alimony would be denied to her under the same circumstances in a decree from bed and board. This principle would seem to apply strongly to cases under our statutes, by authority of which a decree for divorce from the bond of matrimony may be granted for causes for which under the ecclesiastical law a decree from bed and board only could be granted.

Assuming that the court in this case did not err in decreeing the divorce, it would seem to follow, on principle, that there should have been no allowance of maintenance to the wife; or if principle must be made to bend to circumstances, those circumstances must be very peculiar indeed, if any such there could be, which, justifying a decree for...