Wand v. Wand

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

No questions arise in Courts of Justice more interesting or important than those which affect the domestic relations of society. The happiness of the community is deeply concerned in the right establishment and just understanding of the rules which govern these relations. The record in this case involves the question, whether the father or the mother is entitled to the custody of an infant child, under the circumstances hereinafter stated.

The plaintiff brought her bill for a divorce, a vinculo, from her then husband, the defendant, upon the ground of extreme cruelty. This cruelty consisted, as averred and proved on the trial, in an attempt to kill her, by snapping a loaded pistol at her breast. This effort failing, he shot himself, inflicting a dangerous wound. This conduct seems to have been the result of jealousy, but we look in vain into the record for anything to justify it. There is no allegation in the answer, impeaching the fidelity of the plaintiff, nor is there anything in the proofs which even throws suspicion upon the purity of her conduct, apart from these acts of the defendant, which seem to have been un[515]accompanied by explanation. The defendant appears to have been a man of peaceable general demeanor; and this act is charged as the sole deviation from a course of affectionate and becoming conduct in his marital relations. Nor is there anything in the record to show, as intimated before, improper conduct on the part of the wife; for the circumstances, as to which testimony has been given, are too trivial to merit any consideration.

The Judge below made a decree dissolving the marriage, and giving the custody of the child to the father. The child is an interesting girl of some six or seven years of age. The plaintiff, since the decree, has married—the defendant is single.

This appeal is taken from so much of the decree as fixes the custody of the child. Possibly, the plaintiff might have some difficulty in maintaining the decree of divorce upon the ground of extreme cruelty, founded upon this single act, under all the circumstances; 'although, as no appeal has been taken from that portion of the record, it is not necessary to consider the point, or intimate any opinion upon it.

The question of law raised by this statement is this: Is a husband, divorced from his wife, at her instance, for extreme cruelty, entitled to the custody of a female child of tender years— the conduct of the wife being without blame? This question has been discussed by the counsel with learning and ability.