Levering v. Levering

Bartol, J.,

delivered the opinion of this court:

There is no inore painful and delicate duty devolved on a court of justice, than that of pronouncing upon the causes which justify a severance of the marriage relation. Public policy and public morals, alike, require that a relation so intimate and tender should nor be broken for slight or trivial causes, and impose on us the duty of carefully weighing and considering the grounds upon which we are called on to affirm a decree dissolving the bonds of matrimony, between parties who respectively claim and resist the exercise of the power conferred on us by law.

*218 The Act of Assembly of 1841, ch. 262, and its supplements, which confer jurisdiction, in such cases, on the chancery courts, limit and define the causes for which they are authorized to decree a divorce a vinculo matrimonii, 'and our plain duty is to decide whether, under the proof in this case, such cause has been shown. One of these causes mentioned in the law, is an abandonment of the party complaining by the party complained against; for that cause the decree in this case was passed, and on that ground alone are we asked to affirm it. By the Act of 1841, ch. 262, sec. 2, it is provided, that the court may decree a divorce a vinciclo “where the party complained against has abandoned the party complaining, and has remained absent from the State for five years.” By the Act of 1844, ch. 306, absence from the State for five years is dispensed with, and it is provided that the Chancellor, &c., “shall, in no case, decree a divorce a vinculo matrimonii on account of abandonment on the part of the party complained against, unless they shall be satisfied, by competent testimony, that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation.” The Act of 1849, ch. 245, gives power to the court to decree a divorce a vinculo, as provided for in the Acts of 1841 and 1844, “as well where the parties have lived separate and apart, without any reasonable expectation of reconciliation, in the State, as where the party complained against has lived out of the State.”

We cannot agree with the late learned Judge of the Superior court, who passed this decree, that under these Acts of Assembly, the complainant was entitled to ask, or the court authorized to grant, the decree from which this appeal was taken. Here the complainant was not abandoned by the defendant; she left, his home and society and returned to her father’s house, and had been living separated from him for a period of three years. The argument of the appellee is, that the appellant’s failure to support her, his intemperate habits and violence committed upon her person, justified her in leaving him, and was, in law, an abandonment of her by him. *219 We can very well imagine a case in which this argument would apply. If a man fails to supply his wife with such necessaries and comforts of life as are within his reach, and by cruelty compels her to quit him, and seek shelter and protection elsewhere, we should have no hesitation in saying it would be as much an abandonment of Iter by him, as if he had deserted her and gone away himself. In this case, the evidence does not sustain the charge that, Levering failed, or was unwilling, to support his wife, or share with her the fruits of his scanty and meager earnings. There is evidence to prove that, on one occasion, forgetful .of his duty and obligation to cherish and protect her, or, what is more probable, impelled by the madness of intoxication, he inflicted violence upon her person. Such conduct, when taken in connection with other facts and circumstances of the case, showing his ill-treatment of his wife, in the eye both of humanity and the law, would justify her in leaving his society; but it does not warrant a court to pronounce a decree of final separation between them. The statute requires that the abandonment shall continue uninterruptedly for at least three years. The proof in this case is, that the appellant has earnestly and anxiously sought to have his wife restored to him, and to renew their marital relations. Jn such a case, we think, it would bo a perversion of the meaning of the law, to declare that there exists cause for a divorce a vinculo matrimonii. It does not come within either the letter or. the spirit of the Acts of Assembly.

By the Act of 1841, tiie court, is authorized to decree a divorce a mensa et thoro for cruelty of treatment. We have said that in this case there is evidence of such cruelty as justified the complainant in leaving the society of her husband. Such evidence, under the law, authorizes us to sanction that separation by pronouncing a decree of divorce a mensa et thoro, and this relief we are warranted in granting by the evidence in this cause, under the 3rd section of the Act of 1841. The same section authorizes the court “to order and direct who shall have the guardianship and custody of the children.” In this case, there is one child, a daughter of *220 tender years, whom we think it our duty to confide to the custody and guardianship of her mother, the appellee. There is no evidence in the cause, nor any intimation, of any unfitness, or want of qualification on her part, to take proper care of the child.

(Decided June 28th, 1860.)

A decree will be signed, reversing the decree below, and divorcing the complainant and defendant a me?isa et thoro.

Decree reversed and decree for a divorce a mensa.