Black v. Black

Prentis, J.,

delivered the opinion of the court.

The appellant filed his bill for an sbsolute divorce from his wife, the appellee, alleging her wilful abandonment of him without just cause or excuse for more than six years prior to the institution of his suit.

The defendant, the appellee, has made no appearance either here or in the trial court.

The cause was heard upon depositions duly taken, as well as on oral testimony; whereupon the trial court entered the decree complained of which denied the relief prayed for and dismissed the bill.

The record discloses that after the depositions had been taken, the court, under Code, section 5109, required the testimony to be given orally in open court. Several of the witnesses were thus examined in the presence of the judge, and the testimony of certain of the witness which had been previously taken was not required to be repeated. It is notable that the testimony of the complainant husband, given in open court, differs materially from that which he had given by deposition. The fair inference to be drawn from what he testified to in his deposition is that there was an actual desertion of him by his wife, whereas in open court a constructive desertion is relied upon, to the effect that because she had previously severed all intimate relations with him and occupied a separate room; expressed her contempt for him and became neglectful of him in his sickness; refused to prepare his meals for him; frequently went to Washington to see some of her children who lived there, over his protest and against his consent; and that he was afraid she would poison, him; therefore he left his home in which they had long lived together, and that by her reprehensible conduct she forced him to leave their joint residence. He admits, however, in the examination before the court, that she remained in this home for two years thereafter. This inconsistency discredits his ease. While in his original deposition he does admit that she remained in the county, he forgot or suppressed the fact that it. was he who actually left home, and that she continued to reside in his home for two years after he had moved away. He testifies to facts which, if true, doubtless entitle him to a divorce for her constructive desertion, but the policy of the law is against divorce, and Code, section 5106, in terms provides that “the bill shall not be taken for confessed, nor shall a divorce be granted on the uncorroborated testimony of the parties or either of them.”

There is no convincing corroboration of the more serious charges made by the complainant, and a fair consideration of the printed record leaves the mind in doubt as to whether or not the plaintiff has established the allegations of his bill. Under these circumstances, the trial judge having heard and seen the complainant and several of his other witnesses when they testified, was in a better position than we are to judge of the credibility of their testimony.

The complainant has failed to carry the burden of showing with fair certainty that his wife has wilfully deserted or abandoned him, and in this state of the record the case is controlled by the rule stated in Walker v. Walker, 120 Va. 410, 91 S. E. 180. No two cases are precisely similar. The general principles governing such eases have been recently stated in Dinsmore v. Dinsmore, 128 Va. 403, 104 S. E. 785, and Ringgold v. Ringgold, 128 Va. 485, 104 S. E. 836, 12 A. L. R. 1383.

For the reasons indicated we will resolve our doubts in favor of the decree of the trial court which denied the divorce.

Affirmed.