Whittington v. Whittington

• Decision Date: 31 December 1836
• Citation: 19 N.C. 64
• Parties: ANDREW WHITTINGTON v. LUCY WHITTINGTON.
• Court: North Carolina Supreme Court

19 N.C. 64

ANDREW WHITTINGTON

v.LUCY WHITTINGTON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. A petition praying for a divorce a vinculo matrimonii only, will be dismissed, if the petitioner is not entitled to that relief, and upon being refused it, declines asking for any other; for a decree for a divorce a mensa et thora, even in a proper case for it, will never be made by the court, unless at the instance of the party.

2. Whether adultery committed by either party, during an agreed separation, would entitle the other to a divorce from bed and board, under the act of 1814. (Rev. ch. 869,) Quœre. But whether it would, or not, it is certain, that the adultery of the wife, after an abandonment of her by her husband, would not entitle him to that relief.

3. An unreasonable delay by one party, after a probable knowledge of the criminal conduct of the other, will, if unaccounted for, preclude such party from obtaining a decree for a separation from bed and board.

4. Every objection which can be urged against a decree for a separation from bed and board, will apply with still stronger force against a decree for a dissolution of the marriage; and though a divorce a mensa et thoro, may be allowed in some instances to a person who is not entirely impeccable, who may not have been exemplary in all the attentions and stipulated offices assumed in contracting the marriage relation, yet the policy of the law, the interest of the offspring, the tranquility and happiness of families in general, forbid the dissolution of marriage, at the suit of a person to whom default in any of the essential duties of married life can be fairly imputed.

5. A petition for a divorce ought, as far as possible, to charge specifically the facts to be given in evidence. When open and promiscuous prostitution is the foundation of the libel, it may be sufficient to allege it in more general terms, because the charge is of a nature to admit of very general evidence; but when the petitioner relies on adultery committed with a particular person, or at a particular time, such person, time, and place, ought to be specially and plainly charged.

This was a Petition for a divorce, filed by the plaintiff, as husband, against the defendant, his wife, on account of the adultery of the wife.

The petition was filed 11 March, 1833, and stated, that the marriage took place in 1823, the petitionerthen being in his eighteenth year, and his wife about twelve years older. It then alleged, that the parties cohabited for about thirty days, when the wife went away, upon the pretence that the plaintiff did not feed her cattle well; and remained absent for two or three years; and during that time had issue, which the plaintiff believed to be his own: That when the petitioner came to full age, feeling the ties of

paternal regard for his offspring, he prevailed on his wife to return to him and resume her duties—he promising to provide for her and her child to the utmost of his means, and to forgive her former offence of leaving him; and she engaging to discharge the duties of a wife and mother, and to treat her husband with tenderness and affection: that after the space of one month, or thereabout, the defendant disregarded her promises, and became so turbulent and neglectful of her domestic concerns, as to induce the plaintiff to fear, that she had no affection for him: that nevertheless, he being unwilling to destroy all anticipation of happiness, and to blight all the prospects of his child, bore with her negligence, contumely, and licentious course, using every means in his power to render her situation comfortable and respectable, until at length, he feared, and believed that his fear was well founded, that his wife had no attachment for him; and that she frequently left home for several days at a time, as the petitioner believed, for the express purpose of indulging in criminal intercourse.

The petition proceeded to state, that the petitioner, after learning the conduct of his wife, and from her unkind and cruel conduct towards him at home, could not reconcile it to himself longer to remain the companion and slave of a woman, who was so destitute of every virtue; and he discarded her from his embraces as a husband: and the petition then charged, that the petitioner had been informed, and so was the fact, that the defendant had indulged in criminal intercourse with both whites and mulattoes: that she acted in this abandoned character for some time before it came to the ears of the petitioner; and that she had three illegitimate children, one of which was a coloured child, as the petitioner was informed and believed: that a few months before the filing ofthis petition, she lived in a state of adultery with one —— Watson; and was then living in adultery with one Ned Goings ; and, finally, that these facts had existed for more than six months before the filing of the petition: upon which premises, the prayer was for a divorce of the petitioner and the defendant from the bonds of matrimony. To the petition was annexed the usual affidavit.

The answer admitted the marriage, about the time charged in the petition; and stated that the parties cohabited for several weeks thereafter, when the husband, without the

slightest reason, accused the defendant of having unlawful intercourse with a negro slave; and, indignant at the calumny, that she thereupon left him, and resided in the house of her mother: that in the course of two months, the petitioner prevailed on the defendant and her mother to let him live with them, and he did so for a short time; and that then the parties removed to a house of their own, and lived together for two or three months: that at that place, and when her first child was three weeks old, the plaintiff whipped the defendant cruelly; upon which she left him a second time, and returned to her mother: that during this residence with her mother, the plaintiff laid in wait for her, and beat her so severely, as to endanger her life: that as soon as she recovered sufficiently, she procured a small piece of land, and a house in which she lived by herself, striving to maintain herself and her child, by her own labour: that the petitioner, in a very short time after she got a house, visited her there, and professed great penitence for his previous conduct, and promised amendment; which induced her again to cohabit with him: that he acted kindly towards her as long as her stock of provisions lasted, but as soon as they were exhausted, and it became necessary for him to labour for a living, he became unkind and quarrelsome: and finally, that about six years before this suit was commenced, he abandoned her and her house, and had not returned since; and she had supported herself and her children.

The answer then admitted, that the defendant had had three children, since her husband abandoned herthe last time; but said, that two of them were twins, and were born within five months after he left her, and that the third, then—November, 1833—at the breast, was the offspring of intercourse between these parties; and that during their separation of six years, the petitioner had frequently called at her house, and staid all night with her. The answer then affirmed, that the charge made against her in the petition, of illicit and indiscriminate intercourse with whites and blacks, was untrue; and that there never had been any accusation of improper conduct, or illicit intercourse with any man, made against her by any person but one, and that was by the incitement of her husband.

Upon issues made up and submitted to a jury, a verdict

was found, that the petitioner was a citizen of this state for three years before the filing of the petition; that the defendant had not been guilty of adultery before the final separation from the petitioner; that she had been guilty of adultery six months before the filing of the petition; and that the petitioner had not been guilty of adultery, nor admitted his said wife into conjugal society since he knew of her adultery, nor had he allowed of her prostitution, nor exposed her to lewd company.

Upon these findings, the petitioner moved for a divorce a vinculo matrimonii, as prayed in the petition, but his Honor Judge Donnell, of Caswell, on the last Spring Circuit, pronounced against the same, upon the ground that no act of adultery was found to have been committed by the wife, until the husband, as stated in the petition, had ''discarded her from his embraces as a husband," and they had finally separated. The plaintiff thereupon declined asking any other decree, and the court dismissed the petition; upon which the plaintiff appealed.

RUFFIN, Chief Justice, having stated the case as above, proceeded: The decree in the Superior Court appears to us to have been required by our statutes concerningdivorces; and the particular ground on which it is placed to be in accordance with the principles of sound policy and public morals.

If the case were a proper one for relief of a different kind from that which the plaintiff asked, he cannot complain that it was not granted, but that his petition was dismissed. In the first place the prayer of the libel is specifically for a dissolution of the marriage, and for that only. In the next, he refused at the trial to accept any decree, but that deemed by himself, most favourable to him. A decree, even for a separation only, will never be made by the court, unless at the instance of the party, although the parties be in fact separated, and there be other matter apparent, on which a sentence of legal separation might be founded. If they can be reconciled, it may prevent further scandal—in

which the public is much concerned; and may also prevent further violations of moral duty by the offending party. Hence, though there is no jurisdiction here to decree a restitution of conjugal rights, the court reluctantly widens the breach between persons already separated, and cannot become active to that end by...