Mullen v. Mullen
| Citation | 188 Va. 259 |
| Decision Date | 08 September 1948 |
| Docket Number | Record No. 3402. |
| Court | Virginia Supreme Court |
| Parties | ELIZABETH WANGLER MULLEN v. JAMES W. MULLEN, II. |
Present, Hudgins, C.J., and Gregory, Eggleston, Spratley, Buchanan and Staples, JJ.
1. HUSBAND AND WIFE — Duty of Husband to Support Wife - Right of Wife to Separate Home. - A husband, consistent with his financial ability should provide his wife a home in which she shall be the mistress, free from interference from members of her husband's family. But this rule is dependent upon the facts of the particular case and the peculiar circumstances existing.
2. DIVORCE — Desertion — Provocation and Excuse - Case at Bar. — The instant case was an action by a husband for divorce on the ground of desertion. The wife filed an answer and cross-bill denying her desertion of complainant and charging him with cruelty and constructive desertion of her. The evidence disclosed that their married life had gone smoothly until the defendant expressed her desire for a home separate and apart from that of her husband's parents. The husband made an honest effort to accord with defendant's desires and did not wilfully fail in the performance of this duty and on at least two occasions defendant declined to move to available quarters. The husband did provide her a home with comfortable quarters at the residence of his parents, where she assisted her husband's mother in doing the cooking and housework owing to the lack of domestic servants. The services rendered were voluntary and she was not abused or ill-treated by her husband's parents but expressed herself as rather devoted to them for their kindness to her. They were fond of her and evidenced their devotion by financial aid from time to time and by other services rendered to make her social life happy. While on a month's visit to her mother defendant wrote normal, affectionate letters to her husband but at the end of the month telephoned him that she did not intend to return to him. Neither the husband nor his parents were able to get defendant to change her plans although they earnestly sought an adjustment of the marital disagreement. Subsequent efforts for a reconcilation were fruitless. There was no evidence of cruelty or reasonable apprehension of bodily hurt. The trial court granted the husband a divorce from bed and board. Held: The trial court did not err. The evidence supported the finding of the chancellor that the complainant's conduct did not justify defendant's wilful desertion of him nor amount to a constructive desertion on his part. There was an actual breach and breaking off of the marital cohabitation by the defendant and she fully expressed her intent to desert complainant. This constitutes desertion as defined in Virginia.
3. PARENT AND CHILD — Custody and Control of Child — As Between Father and Mother — Child's Welfare Paramount Consideration. — The Supreme Court of Appeals has departed from the common law rule which favored the right of the father to custody of his child, and established the rule that the welfare of the infant is the primary, paramount and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.
4. PARENT AND CHILD — Custody and Control of Child — As Between Father and Mother — Ties of Affection to Be Considered. — In controversies between parents over the custody of their minor children the rule that the welfare of the infant is the paramount consideration is to be administered with as much consideration for the tender ties of affection of the parents as possible under the circumstances and especially where each parent is shown to be a fit and proper custodian of the child.
5. PARENT AND CHILD — Custody and Control of Child — As Between Father and Mother — Factors Considered in Determining Award. — Where controversies arise between parents over the custody of their minor children, in considering the qualifications and fitness of the parents, their adaptability to the task of caring for the child, their adaptability to control and direct it, the age, sex and health of the child, its temporal and moral wellbeing, as well as the environment and circumstances of its proposed home and the influences likely to be exerted upon the child, must be looked to.
6. PARENT AND CHILD — Custody and Control of Child — Mother Preferred as Natural Guardian When Child of Tender Years. — The mother is the natural custodian of her child of tender years, and if she is a fit and proper person, other things being equal, she should be given the custody in order that the child may receive the attention, care, supervision, and kindly advice which arise from a mother's love and devotion, for which no substitute has ever been found. Human experience supports the policy that young children should not be deprived of the care of their mothers and of their love and tenderness, which may be counted upon most unfailingly. Accordingly, children of tender age, especially girls, will be awarded to their mothers, if fit and suitable; and where no injury or disadvantage will result to the child, the feelings of the maternal parent must be given consideration.
7. DIVORCE — Custody of Child — Effect of Financial Status of Parents — Case at Bar. — In the instant case, an action by a husband for divorce and custody of the parties' infant child, there was no serious attack upon the character and basic fitness of either parent to have custody of their child and nothing inherently wrong in their character and aim. The evidence disclosed that the father was well-to-do but intensely occupied with his business, with little opportunity during the day to give the child supervision and control, while the mother, although she had no independent funds and might be required to obtain employment to support herself, was a good mother and would provide the child a comfortable and attractive home in which its maternal grandmother lived.
Held: The question was not which of the parents could surround the infant with greater luxury or which would be able to give or bequeath the greater amount of money or property, but with which of them she would be likely to be reared so as to be better prepared for life.
8. DIVORCE — Party at Fault — Case at Bar. — In the instant case, an action by a husband for divorce on the ground of desertion and custody of the parties' infant child, the evidence showed that the mother was a good, patient, unselfish and understanding mother, although at fault in deserting her husband.
Held: The fault of the mother was not based on any moral delinquency and was not committed against the child and the custody should not be ordered with a view of heaping punishment upon the defendant by reason of her responsibility for the severance of the marriage ties when the substantial evidence showed her to be a fit person to share custody.
9. DIVORCE — Custody of Child — Division of Custody — Case at Bar. — In the instant case, an action by a husband for divorce and custody of the parties' infant child there was no serious attack upon the character or basic fitness of either parent to have the custody of their child and nothing inherently wrong in their character and aim.
Held: While there were disadvantages in division of custody, there were also important advantages and benefits. It would give the child the experience of two separate homes. The child was entitled to the love, advice and training of both parents. Frequent association, contact, and friendly relations with both her parents would protect her future welfare if one should die. It would recognize the rights of parents who had performed all their obligations as such.
10. DIVORCE — Custody of Child — Party at Fault — Case at Bar. — In the instant case, an action by a husband for divorce on the ground of desertion and custody of the infant child, the evidence disclosed that the defendant deserted complainant after he had made a bona fide effort, but had failed to provide defendant, a home at her request separate and apart from that of his parents. Complainant contended that defendant had shown herself by this action to be so emotionally unstable as to be unfit to be entrusted with the raising of a child.
Held: That firmness on the part of a wife in her insistence on a separate home was not sufficient to establish emotional instability. Her claim to such a home would be understandable in most circumstances and her rights in that respect uniformly recognized, depend upon the facts of the case and circumstances existing.
11. DIVORCE — Custody of Child — Division of Custody — Case at Bar. — The instant case was an action by a husband for divorce on the ground of desertion and custody of the parties' infant child. The evidence disclosed that complainant was well-to-do but intensely occupied with his business, with little opportunity during the day to give the child supervision and control and no training for such a task; that his parents with whom he lived were excellent people, greatly interested in the welfare of the child; that the mother, while she had no independent funds and might be required to obtain employment to support herself, was a good mother although the party at fault; and that she would provide the child a comfortable, attractive home in which its maternal grandmother lived.
Held: The welfare of the child demanded that during the period of the year in which she was required to attend school and during a portion of the summer months she should be in the custody of her mother, the father to have custody for a portion of the summer months, with the right of visitation in either parent at reasonable times during the calendar year.
12. ALIMONY — When Recovered — Within Discretion of Court — Case at Bar. — In the instant case, an action by a husband for divorce on the ground of desertion, the husband was properly awarded a divorce from bed and board by the trial court,...
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