Denny v. Denny , 118 Va. 79 ( 1915 )

By the court.

This is a suit by Imogen B. Denny for divorce from her husband, Victor L. Denny. The circuit court denied the prayer of the bill and dismissed the same. The evidence is of a character which in our opinion renders any published discussion of it improper. We have examined the record carefully and are of opinion that the appellant is entitled to a divorce from the bonds of matrimony, upon the ground of cruelty on the part of her husband, resulting in her enforced separation from his bed and board, tantamount to a desertion on his part. It appears that this condition has continued for more than three years prior to the rendering of the decree which will be entered by this court.

We are further of opinion, in view of the ages of the two children, who are boys and are now thirteen and eighteen years of age, respectively, the financial condition of the parties, and other facts and circumstances which need not be detailed, that there is no sufficient reason for departing from the general rule of law which entitles the father to the custody of his children, bnt the decree herein will provide that the appellant shall be allowed access to the children upon such reasonable terms and at such time and place as may be prescribed by the Circuit Court of Augusta county, to which the cause will be remanded. The question of alimony will be referred to the circuit court.

The court being of opinion that the decree of the circuit court aforesaid was in error in refusing the divorce, the same will be reversed and the cause remanded to b.e further proceeded with in accordance with the terms of the decree which will be entered in this court and with the'views expressed in this opinion.

Reversed.