29 Colo. 149 | Colo. | 1901
delivered the opinion of the court.
This is an action for divorce. The wife in her complaint charges her husband with desertion, which he denies in his answer, and therein and byway of cross-complaint, alleges cruelty and desertion by her,
A number of questions have been argued by counsel, but as we think that the judgment is wrong, the only assignment of error considered is that the verdict is not sustained by the evidence. In Johnson v. Johnson, 22 Colo. 20, it was said:' “Desertion consists in the actual ceasing of cohabitation, and the intent in the mind of the offending party to desert the other.” In i Bishop on Marriage and Divorce, § 1662, et seq., practically the same definition is given. It is clear under our statutes and under the authorities that there is no desertion unless there is an intent upon the part of the one charged therewith permanently to break off the marriage relation, or where there is a justification for the separation in the consent of the alleged wronged party.
The plaintiff and defendant were married in the state of Illinois in the year 1888, and soon afterwards removed to Denver in Colorado. The wife was in delicate health at the time of her marriage, and from time to time suffered from nervous hysteria. In 1893, acting on the advice of a physician, and with the consent of her husband, she returned to Illinois, where she visited her relatives until September, 1897. During this absence letters were exchanged, and the husband furnished some money for the wife’s support
After that period the defendant no longer wrote to his wife and made no provision for hersupport. InSeptember, 1897, the wife returned to Colorado and offered to resume- her former relations with her husband, but, as defendant himself admits, he refused to accept the offer, having before that time determined not to live with her. There is not sufficient direct evidence that the wife ever refused to return to the defendant, and it is only by reason. of her conduct that such claim can be made. About the time which the defendant designates as the beginning of the period of desertion by his wife, the latter, in answer to one of his letters and speaking to the question of a sufficient support which she claimed he had not given, and which he admitted and had assigned reasons therefor, she replied, according to his statement, that if he could not support her any better than he had, she would let some one else do it. Evidently this remark angered the defendant, he taking it as an intimation that she thereby desired to release him from further obligation and would get her support from some one whom she intended to marry when released from the tie that bound her to him.
Without going further into the details of this unfortunate separation it is sufficient to say that there was no intention on the part of the wife to desert when she left her home in Colorado and went to Illinois. Not only was it with the husband’s consent, but her prolonged absence far beyond the time when she herself wished to return,- was in accordance with his desire and earnest insistance. The utmost that
Our conclusion from the entire evidence is that there was no intent upon the part of the wife permanently to abandon her husband, and it is equally clear that their separation was with his consent, and that after the receipt of the objectionable letter, which was one if not the principal, cause of his ill feeling, he desired her to remain in Illinois with her relatives, and then determined no longer to live with her. Thereafter he did not do what a just man should do in the way of concession and making advances to his wife in order to induce her to return, but, on the contrary, everything he did with respect thereto was calculated, and in fact did tend, to prolong her absence. In other words, the separation between these parties, although it continued for more than the statutory period of one year, was not on the part of the wife intended to be permanent or wilful, and on the part of the husband it was in accordance with his own desire and its continuance was with his consent. In this sort of an action this was a sufficient justification for the separation, and the husband did wrong when his wife returned to Colorado not to renew the cohabitation.
We are mindful of the rule that where there is a substantial conflict in the evidence an appellate tribunal will not disturb the findings of a jury or a trial court, yet where in the most favorable light that can
The judgment is therefore reversed and the cause remanded with instructions to the trial court to dismiss the plaintiff’s action based upon her complaint and the defendant’s action under his cross-complaint. Reversed.