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