Byerly v. Byerly

Chichester, J., delivered the opinion of the court. This is an appeal by Marie Byerly from a final decree of the Circuit Court of Rockingham county, denying appellant a divorce a mensa et thoro upon a charge of desertion on the part of her husband, Franklin Lee Byerly, appellee. The cause was heard upon the bill and answer and depositions taken on behalf of the appellant. There was no evidence adduced on behalf of appellee nor was any effort made to deny any of the facts established by the evidence taken on behalf of the appellant. The trial court, of its own motion, apparently, excluded from consideration as privileged, all communications between the husband and wife, although they were all oral and made for the most part in the presence of third parties, but held that even though the excluded evidence be considered the charge of desertion was not established. We cannot agree with the conclusion of the learned chancellor either as to his action in excluding the evidence (Bailey v. Bailey, 21 Gratt. [62 Va.] 43; Grim v. Grim, 126 Va. 245, 101 S. E. 140; Ringgold v. Ringgold, 128 Va. 485, 104 S. E. 836, 12 A. L. R. 1383), or as to the sufficiency of the evidence to support the charge of desertion. The evidence discloses that the appellant was practically driven away from the husband’s abode, which was with his father and mother, and that he repulsed repeated attempts to return, and appeals to be taken back, on the part of appellant. Without detailing this evidence, it is sufficient to say that under such circumstances the desertion is clearly established [55] and this case is controlled by the decisions in Washington v. Washington, 111 Va. 524, 69 S. E. 322; Lee v. Lee, 112 Va. 719, 72 S. E. 689; Lamb v. Lamb, 126 Va. 256, 101 S. E. 223; Grim v. Grim, 126 Va. 245, 101 S. E. 140; Isgett v. Isgeit, 126 Va. 599, 101 S. E. 788. The decree of the circuit court is reversed, a decree will be entered here in accordance with the prayer of the bill, and the cause remanded to the circuit court for such future action with reference to enlargement of the divorce a mensa, here granted, into a divorce a vinculo as the facts may hereafter entitle appellant to. The right to a decree allowing alimony being waived, the appellee is adjudged to pay the costs of this proceeding and a fee of $200.00 to counsel for appellant. Reversed.