Wright v. Wright

• Decision Date: 12 June 1919
• Citation: 99 S.E. 515
• Parties: WRIGHT v. WRIGHT.
• Court: Virginia Supreme Court

99 S.E. 515

WRIGHT

v.WRIGHT.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Appeal from Circuit Court, Louisa County.

Suit for divorce by Minnie A. D. Wright against Robert W. Wright. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Gordon & Gordon, of Louisa, for appellant.

W. O. Bibb, of Louisa, for appellee.

PRENTIS, J. The complainant, Mrs. Robert W. Wright (Minnie A. Denton Wright), appeals from a final decree sustaining a demurrer to her bill for divorce, filed against her husband, Robert W. Wright, which alleges as the ground therefor that he willfully deserted her on January 27, 1914, and that such desertion has continued for more than three years. The bill also alleges that on May 26, 1914, her said husband was adjudged a lunatic, and was thereupon confined in the Western State Hospital; that he had been permitted since then to come to Louisa county on a furlough, and while there seemed perfectly natural and sane, though he is still confined as a lunatic.. The court appointed a guardian ad litem for the defendant, who filed a general demurrer to the bill, and for cause of demurrer relied upon the insanity of the defendant, occurring within less than three years from the date of the alleged desertion.

While it may be regarded as settled by the great weight of authority that the insanity of the defendant is no bar to the prosecution of a suit for divorce for a cause which accrued before such insanity began, yet the precise question presented by this record appears to have arisen in very few cases. If the desertion had continued for three years before the insanity of the defendant intervened, then the cause of action would have been complete, and the insanity would have been no defense. This was determined in Fisher v. Fisher, 54 W. Va. 146, 46 S. E. 118, 1 Ann. Cas. 251. Here, however, within three months after the alleged desertion, the defendant became insane. While the cases have been few, the prevailing view is that in such a case the insanity of the defendant is a bar to the suit.

Kirkpatrick v. Kirkpatrick, 81 Neb. 627, 116 N. W. 499, 16 L, R. A. (N. S.) 1071, 129 Am. St. Rep. 70S, presents a question precisely similar to the one here raised. The Nebraska statute there construed provided that a divorce may be granted "where either party willfully abandons the other without just cause for a period of two years." The Virginia statute (Code, § 2257) provides that a divorce from the bonds of matrimony may be decreed to the party abandoned "where either party willfully deserts or abandons the other for three years." In that case this is said:

"It is a universal rule that, where one spouse abandons or deserts the other and returns to the unoffending party before the expiration of the statutory period, a ground of divorce does not arise or accrue. Our statute lias fixed the period of two years, and the offending party could return at any time prior to the expiration of two years, and thus prevent a cause of action...