Myers v. Myers

• Decision Date: 15 September 1887
• Citation: 83 Va. 806,6 S.E. 630
• Parties: Myers v. Myers.
• Court: Virginia Supreme Court

6 S.E. 630

(83 Va. 806)

Myers

v.Myers.

Supreme Court of Appeals of Virginia.

September 15, 1887.

1. Husband and Wife—Divorce from Bed and Board—Cruelty.

Where it appears that for a series of years a husband has habitually abused and maltreated his wife, using coarse, vulgar, and insulting language towards her, kicking and beating her on trivial occasions, and threatening her with serious bodily injury, rendering it in the opinion of the neighbors and domestics of the family unsafe for her to live with him; although others, with inferior opportunities, give a contrary opinion, a divorce from bed and board should be decreed, under Code Va. 1873, c. 105, § 7, providing that such divorce "may be decreed for cruelty, reasonable apprehension of bodily harm, abandonment, or desertion."

2. Same—Custody of Child.

In such case the care and custody of a minor child of the marriage should, under Code Va. 1873, c. 105, § 12, providing that upon decreeing a divorce the court may make such further decree concerning the care, custody, and maintenance of the minor children, and may determine with which of the parents the children shall remain, be decreed to the wife, the character of the father being such that it would not be proper to intrust him with the charge.

8. Same—Alimony.

In such case, it appearing that the wife's separate property is larger than the husband's, and amply sufficient for the support of herself and child, the husband will not be compelled to contribute to their support.

Appeal from circuit court, Rockingham county.

Grattan & Stephenson, for appellant.

Chas. E. Haas, for appellee.

Richardson, J. This is an appeal from a decree of the circuit court of Rockingham county rendered January 19, 1886, in a chancery cause wherein Sarah J. Myers, by her next friend, Noah W. Berry, was complainant, and A. J. Myers was defendant. The object of the suit was to obtain a divorce a mensa et thoro, with a decree for perpetual separation from her husband, and recovery of the exclusive control of her infant son, and also of her real and personal property. The suit was instituted on the 30th of November, 1885, in said circuit court. The bill set out that the complainant, Sarah J. Myers, and the defendant, A. J. Myers, were married on the 30th of November, 1876. She had been a dutiful wife so long as she could safely intrust herself to her said husband's control and society; that in the summer of 1879 he treated her cruelly, and threatened her with more dangerous treatment; that, from apprehension that her person and life would not be safe with him, she returned with her infant child to her father's house; that before her departure his friends, aware of his conduct towards her, had him committed to the Western Lunatic Asylum, at Staunton, as insane, whence, however, he was in a very short time released; that while he was there she left his house, and returned to her father's, for the protection she needed, she having been left at her husband's home with her infant and only child without the necessary protection; that, on her husband's speedy return from the asylum, he manifested the same unrelenting and cruel treatment towards her, frequently speaking of her in a vulgar and abusive manner, and therefore she was at last compelled to ask the court to free her from one in whose association she could not but apprehend serious danger to herself and child; that she bad lived with her said husband from the time of their marriage until some time in August, 1879, during which period she was a constant, faithful, and dutiful wife, and bore to him one child, Michael 1L Myers, who at the institution of this suit was seven years old. But the bill charges that, notwithstanding the plaintiff's dutiful conduct towards her said husband, yet he, within a short time after their marriage, in shameful violation of his marriage vows, treated the complainant in the most cruel and brutal manner, indulging in the coarsest and most abusive language towards her, frequently striking, beating, and kicking her, thereby rendering her most miserable and unhappy, and made it extremely dangerous for herself and infant child to live with him; that he became so violent and intemperate in his language and conduct towards her that his neighbors had him arrested and committed to the Western Lunatic Asylum, as before stated, when complainant removed with her child to the home of her brother, where she has since resided; and that since her husband's return from the asylum he has continued to manifest the same cruel and relentless disposition; has frequently spoken in the most abusive manner of her, so that she has been and is now apprehensive of bodily injury, indeed is apprehensive of danger to her life and that of her child, were she to attempt to resume her former conjugal relations with him; and that he is constantly seeking to assert his marital rights as to complainant and her child, and therefore is a source of annoyance and danger to her. The defendant answered, and, though the bill waived an answer on oath, he denied every other allegation, but admitted that under provocations he had once slightly kicked her. Several depositions were taken. On the hearing the circuit court dismissed complainant's bill, with costs, and from that decree the case is here on appeal.

The facts disclosed by the evidence are that the defendant was possessed of a violent temper, which he seems to have made little effort to restrain, especially at home, and with respect to those subject to his control, and was arbitrary, coarse, and surly; that his habitual treatment of his wife was un-kindly, though she seems to have labored to please him; that on one occasion, when she and her white hired female help had retired to her room to put her child, then a very tender infant, to sleep, he came home, and forced his way into the room by the window, under pretense that the room door had been closed upon him, of which there is no evidence, and said to his wife, "I'll show you, for closing the door on me, " and declared that he was in his own house, and then jerked and kicked his wife around; that on another occasion, when she asked when they would go to the annual meeting, he got very angry, and told her "he would split her open;" that he told her she was "the beat-ingest woman to talk to other men he ever saw;" that he kept six cows to milk, but turned off the white hired girl not very long after his wife had borne him their first and only child, saying he would not hire a girl any longer, that his wife could do the work herself; that one day his wife was seen to run out of the house, pursued by him with a switch in his hand, he saying, as she fled, "You had better run;" that she ran on to the kitchen to get dinner, and explained to the hired girl that he had run her out of the house with a switch because she had sent a little boy to the store to sell a couple dozen eggs to get a little cotton cloth to make pockets for his pants; that his mind was not then out of sorts, though it was before he was sent to the lunatic asylum; and that in October, 1885, he admitted to his wife's brother that he had kicked her, using vulgar language to designate the part of her body kicked by him, not to be repeated here, and, after thus admitting that he had kicked her, said he did not care who knew it, and that he would kick her or any other woman under similar circumstances. The complainant's brother, the hired girl, a man who lived in defendant's house as an employe for months, and several near neighbors, all of whom had had ample opportunities to know of that whereof they gave evidence, deposed that it would not, in their opinion, be safe for Mrs. Myers and her child to live with her husband; and all of them say that his temper and feelings towards her had not improved, and that on his visits to her at her brother's house, where she has made her home for several years, he is never kind and pleasant to her. On the other hand, several persons of inferior opportunities testify to a different opinion. It also appears, both from the answer and from the evidence, that at the death of Mrs. Myers' father, about 1882, she inherited from him real estate of the value of $18,000 or $19,000, and about $5,000 of personalty; and that her father had, after her said marriage, paid $2,600, one-fourth of the purchase money of the farm purchased by the defendant near Mt. Crawford, and that the defendant's own estate was worth some $11,000. It was also stated in the answer of the defendant A. J. Myers, and proved, that in an interview between Mrs. Myers' brother, Samuel Bowman, and the defendant, which had been sought by the former, with the hope of amicably settling, by articles of separation, this unhappy family dissension, the defendant proposed to Bowman to settle it on these terms: Defendant would surrender his right of curtesy in the real estate of his wife, and all the interests he might have in her personalty, and the...