| Idaho | May 26, 1908
This action was brought to obtain a divorce on the ground of desertion and to have the appellant decreed to hold in trust certain real estate consisting of about 200 acres of land, situated near the city of Lewiston, Nez Perce county. It is alleged in the complaint that on or about the 1st day of March, 1903, the defendant, disregarding the solemnity of her marriage vow, wilfully and without cause, deserted and abandoned the plaintiff, and ever since has continued to wilfully and without cause desert and abandon the plaintiff and live separate and apart from him without sufficient cause and without any reason and against his will and without his consent.
The allegations of the complaint in regard to said real estate are that the plaintiff was owner in fee and possessed of said real estate, describing it, and also of said water right,
To this complaint the defendant filed her answer, admitting some of the allegations, denying others, and alleges some affirmative matter. She denies that she has ever deserted or abandoned plaintiff; denies that said real estate and water right was conveyed to her to be held in trust for plaintiff, and denies specifically each and every of the allegations of the
For a separate and further defense, defendant avers, among other things, that the issue of said marriage is one son, aged fourteen years, who has resided with the defendant continuously, and whom she has always had to maintain, educate and support and is now maintaining and educating him; that said real estate and water rights, for valuable consideration, was conveyed by plaintiff to defendant; that at the time of execution and delivery of said deed, defendant was in the quiet and
Upon the issues thus made, the cause was tried by the court and findings of fact and judgment were entered dissolving the bonds of matrimony and decreeing that the defendant holds the said real estate in trust for plaintiff; that the same is community property, and that the purported conveyance of 1902 reconveyed said real estate to the plaintiff and that said real estate be equally divided between the parties hereto.
A motion for a new trial was denied and this appeal is from the judgment and order denying a new trial. Numerous errors are assigned, among them the insufficiency of the evidence to sustain certain findings made by the court. At the outset it is contended by counsel for respondent that the specification of the insufficiency of the evidence to 'sustain certain findings does not specify the particulars in which the evidence is alleged to be insufficient, and for that reason such specification cannot be considered on this appeal. The first specification of insufficiency of the evidence is as follows: ‘1 The third finding of fact is contrary to and unsupported by the evidence, the evidence showing conclusively that the defendant never at any time or at all deserted the plaintiff.” The question of desertion was the main issue involved in the suit. All of the evidence in the case other than that relating to the property rights of the parties was directed to that issue.
By the third finding of fact the court found that more than one year before the commencement of this action the defendant wilfully and without cause deserted and abandoned plaintiff, and ever since has continued to live separate and apart from him without sufficient cause and without any reason, against his will and without his consent. The fact of ■desertion is particularly set out in said finding, and that is the fact referred to in said specification of the insufficiency of the ■evidence. This court has held that specifications of insuffi■ciency of the evidence, which designate some particular fact and aver that it is not justified by nor sustained by, or is contrary to the evidence, are sufficient. (Bernier v. Anderson,
The court will now consider the assignments of error going to the sufficiency of the evidence to sustain the findings of the court. The question of desertion is the main issue involved in the _ case. Sec. 2457 of the Revised Statutes defines the grounds on which divorces may be granted, and among them is that of wilful desertion. Sec. 2460, defines wilful desertion as follows: “Wilful desertion is the voluntary separation of one of the married parties from the other with the intent to desert.” Sec. 2463, provides that wilful desertion must continue for one year before it is a ground for divorce. In order to recover in this case, the appellant must show that such wilful desertion was voluntary and continued for a period of one year, with intent to desert, prior to the commencement of this action. The ultimate fact of wilful desertion must be established by probative facts. The first question presented is, whether the evidence establishes wilful desertion for a period of one year.
It appears from the record, first, that the respondent left his home at Lewiston and went to Old Mexico in July, 1901, and left his wife and son on the land referred to; that in the spring of 1902, his wife left- there and went to San Francisco, California; that he returned from Mexico in July, 1902, and met his wife in San Francisco. Before going to Mexico respondent conveyed to the appellant 200 acres of land near the town of Lewiston. After he met her in San Francisco, in July, 1902, he testifies that she reconveyed the land to him, and that the deed was thereafter lost. The appellant testified that she executed some kind of a paper, whether a deed or a power of attorney, she was not sure which, of said land, under the agreement with the respondent that he would return to Lewiston and procure her a loan of $500, giving said land as security. It appears that respondent returned from San Francisco to Lewiston and failed to negotiate the loan of $500; that the appellant thereafter returned to Lewiston
It is contended by counsel for respondent that the appellant left his home and remained away during those years, from the spring of 1903, until this suit was brought on February 27, 1906, without his consent and against his will. Referring to the second time that she went to San Francisco, the respondent testified as follows: “When she went to California the second time, she said the people down at the hotel where she had been working before, wanted her to take charge of the place again. I was here when she went.....At that time I was on the ranch. She didn’t go with my consent. Of course, I consented, in a way — I didn’t want her to go but she was determined to go and I had to consent. She did not take the boy with her. It was probably six months after she went that she wrote me to send the boy. She said the schools were better. I don’t remember whether she sent money for his fare; she might have sent $50 to pay the boy’s fare. If she did, it has slipped my memory. I consented that he should go to her. I sent the boy to her and he has been with her ever since. I have never asked the boy to come back to me. I wanted them both to come back. At that time everything was mutually agreed upon and the boy went there because it was a better school and better advantages..... There were no harsh words when she left. We had no trouble at all. The only harsh words we ever had was through our correspondence.....I have not contributed anything toward her support.....I did not send her any" money to come to Lewiston at any of the times I claimed I sent for her.....All this time while Mrs. Bell was in California it was perfectly agreeable to me, in fact, agreeable among us, that she should work and make money in order to take
It would appear from the above-quoted evidence that the respondent was quite contented to have the appellant work and earn her own living and that of her son, as it appears from the record that he never furnished her any money for the maintenance of herself and son, unless it was a part of the money for which he sold pieces or parcels of said real estate that had been divided up into lots and blocks.
Respondent testified: “Everything was harmonious between Mrs. Bell and I up to the commencement of the sale of these lots.....And when the sales of the lots commenced, the crisis came.” Although earnestly requested to prepare a home for her and secure employment whereby he could earn sufficient to support herself and boy, there is nothing in the record to show that he did so or ever made any effort to do so. Although in many of appellant’s letters to him she urged him most earnestly to secure employment whereby he could earn sufficient to give her and her son a home and support, the support of his wife and child seemed to have concerned him very little. As this condition of things existed for about two years, the appellant thereupon in 1904 wrote him, among other things, as follows: “As far as my coming home is concerned, I will come when you have a position of some sort so we can live, but I am' not coming to exist only.” And again she wrote him: “Very sorry you are so headstrong, for it means evidently the breaking up of our family. If you would go on and put in the grain and get a decent house to live in .... in time we could be all together again. . ... It would be out of the question for me to leave here by the 15th, for mother is coming, and anyhow, where would we go to — some lodging-house? No, sir; I won’t do it. You get a house for us, as I have said repeatedly, I will gladly come. ’ ’
About a year after writing said letters, he having made no provision for the support of herself and boy, she wrote him
We think the evidence considered as a whole sustains the truthfulness of her explanation as to why she wrote the letters referring to separation. A husband who fails, neglects or refuses to furnish his wife with a suitable home, according to his condition, and refuses to support her, is not in a position to successfully charge her with desertion if she leaves him and seeks employment whereby she may support herself.
. In commenting upon the necessity of the ease, Mr. Bishop, in his work on Marriage and Divorce,.sec. 1737, vol. 1, laid down the following rule:
“The withholding of necessaries from a wife, by a husband who could furnish them, would be cruelty authorizing her*18 to abandon the cohabitation; for it would endanger her physical well-being. If he was not able to supply them, the circumstances would confer on her the authority in law to go where she could get them. In this latter case, his unavoidable lack of doing would not be cruelty, so it would not justify her in an irrevocable breaking off of the cohabitation. If she went away, meaning the separation to be permanent, she would thereby desert him. If her going was intended to be temporary, yet afterwards she determined to make it permanent, the new resolution would convert it into desertion from the time when it was formed; but so long as she acted on the necessity, purposing to return on its ending, she would commit no desertion.”
If a husband is lazy and shiftless and will work only at employment that he fails or neglects to get, his wife is perfectly justified in seeking employment by which she can support herself, and if she is compelled to leave him in order to do so, she is justified in doing that. A mining expert without a job and without money and with a wife and son to support is not justified in refusing to work at anything except his chosen business and thus compel his wife to support herself and child. During the years from 1903 to 1906, the business conditions of the country were such that there was work at remunerative wages for everyone who desired to work, and it does appear that respondent utterly failed to supply the appellant with a home and support and failed to furnish. her any money, except that he sent her one-half of the proceeds of the sale of certain lots carved out of the real estate referred to in the complaint.
It is urged by counsel for respondent that when appellant returned to California in March, 1903, “it was because she put the accumulation of dirty dollars above family ties and domestic duties.” There is nothing in the record to warrant that statement, as the record clearly shows that she was ready and willing to return as soon as respondent would furnish her a home and support. It does show that she was willing to work to earn “honest dollars” with which to feed and educate the son. Respondent testified as follows: “It is a
Bishop further states: “A leaving of the cohabitation by one who does it as the natural return for the other’s ill-conduct cannot be relied on by the other, who has made no proper effort to prevent it, as desertion.” In see. 1741 that author lays down the following rule:
“It is a general principle of the law that one is estopped from complaining of what he suffers as to the natural and probable consequence of his own act. "We saw something of this under the title ‘cruelty.’ And within this doctrine, if a married party does what will naturally and probably — es*21 peeially what will properly and necessarily — drive away the other, he cannot make the going the foundation for a dissolution of the marriage. ‘To a husband seeking a divorce under such circumstances,’ observed Dewey, J., ‘it might well be said, your barbarity, your inhumanity, or your gross neglect (as the case might be) was the occasion of the separation of which you complain; your wife was only an involuntary actor in the scene, and you must be content to abide the consequences resulting from your own misconduct.’ ”
See, also, Pidge v. Pidge, 3 Met. 257, 261; Smith v. Smith, 12 N. H. 80; Stoneburner v. Stoneburner, 11 Idaho 603" court="Idaho" date_filed="1905-12-27" href="https://app.midpage.ai/document/stoneburner-v-stoneburner-5169168?utm_source=webapp" opinion_id="5169168">11 Ida. 603, 83 Pac. 938.
„ It is contended that under the provisions of sec. 2471, Rev. Stat., a divorce cannot be granted upon the uncorroborated statement, admission or testimony of the parties, and that therefore the letters and admissions of the respondent will not alone sufficiently corroborate the testimony of the plaintiff as to the facts of desertion. That section is as follows: “No divorce can be granted upon the default of the defendant or upon the uncorroborated statement, admission or testimony of the parties.....” The object and purpose of the provisions of that statute were to prevent collusive divorces and to guard against the dangers of conspiracy oh the part of the plaintiff, and false and colored testimony concerning the admissions and confessions of the defendant. In Baker v. Baker, 13 Cal. 88, we find a very exhaustive opinion by Justice Field, under a statute which provided that no divorce should be granted “on the admission or statement of either party.” It was there held that the provisions of that section did not prohibit the introduction of confessions in evidence, but simply prevent the granting of a decree on them, alone. The section of the statute there construed was different from the one under consideration in this: that it provided divorces should not be granted on the admission or statement of either party. See. 2471 provides that no divorce shall be granted upon the “statement, admission or testimony of the parties.” In the California statute there considered, there is no prohibition against one of the parties to the ac
In the California case of Baker v. Baker, supra, Justice Field said:
“The statute, as appears, does not in terms prohibit the introduction of confessions; but only provides that the decree shall not be granted on them. In this respect it is only affirmatory of the well-established rule of the common and of the English ecclesiastical law, which has been recognized from the earliest period, both in England and the several states of the Union. The object of the rule is to prevent collusion between the parties. Without some limitation of this kind, it would be in the power of the parties to obtain a divorce in all cases. The public is interested in the marriage relation and the maintenance of its integrity; as it is the' foundation of the social system, and the law wisely requires proof of the facts alleged as the ground for its dissolution.”
It is contended that corroborative evidence, consisting of the letters of the wife and her testimony, is sufficient. Cor'roborative evidence is certainly additional evidence of a different character to the same point. If the testimony of one of the parties was sufficiently corroborative of the testimony of the other, it will readily be seen that divorces could be had upon the testimony of the parties alone, one party being sufficient to corroborate the other. But that was not the intention of the law. It was to prevent collusion of the parties and require corroboration of the main fact, which in this case is desertion, by other evidence than that of the testimony or
In 2 Bishop on Marriage and Divorce, see. 762, the author lays down the following rule as to the proof required by plaintiff :
‘ ‘ The party charging the matrimonial offense must present more than equally balanced testimony, and he must affirmatively and satisfactorily prove it; he must overcome the presumption of innocence, and otherwise make out his case clearly, in proportion to the gravity of the accusation and its heavy consequences.”
It is contended that there is nothing contained in the evidence but the testimony of the parties in regard to desertion and that under that provision of the statute, one party to the action cannot corroborate the testimony of the other as to desertion, and if separation is by mutual consent, wilful desertion cannot be based on such separation.
In Kenniston v. Kenniston (6 Cal. App. 657" court="Cal. Ct. App." date_filed="1907-10-19" href="https://app.midpage.ai/document/kenniston-v-kenniston-3285578?utm_source=webapp" opinion_id="3285578">6 Cal. App. 657), 92 Pac. 1037, the court had under consideration the question of corroborative evidence, and said:
“But see. 130 of the Civil Code provides that ‘no divorce can be granted upon .... the uncorroborated statement, admission or testimony of the parties.’ The vital question here relates to the effect to be given to this provision of the statute. ‘Corroborative evidence is additional evidence of a different character to the same point.’ (Code Civ. Proc., sec. 1839.) It is difficult, of course, by a general rule to prescribe the extent of • the corroborative evidence required to satisfy the statute. But if it is clear that there is no such evidence, the duty of the court to deny the divorce is plain if regard is to be paid to the legislative will. The public is greatly interested in the maintenance of the marital rela*24 tion, and it should not be dissolved at the whim or caprice of the parties, nor without the complete sanction of the law. (Kuhl v. Kuhl, 124 Cal. 58, 56 P. 629" court="Cal." date_filed="1899-03-18" href="https://app.midpage.ai/document/kuhl-v-kuhl-5449645?utm_source=webapp" opinion_id="5449645">56 Pac. 629.) As an illustration of the application of the rule, we find the supreme court holding in Hayes v. Hayes, 144 Cal. 627, 78 P. 19" court="Cal." date_filed="1904-09-08" href="https://app.midpage.ai/document/hayes-v-hayes-3304049?utm_source=webapp" opinion_id="3304049">78 Pac. 19, that the testimony of the husband was not sufficiently corroborated by the testimony of another witness as to the confession of the wife; the. court, through Commissioner Chipman, stating: ‘But the confession of the wife, as well as the testimony of plaintiff, required corroboration, and there was none.’ ”
In Baker v. Baker, 13 Cal. 87" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/baker-v-baker-5434088?utm_source=webapp" opinion_id="5434088">13 Cal. 87, the court said:
“The object of the rule is to prevent collusion between the parties. Without some limitation of this kind, it would be in the power of the parties to obtain a divorce in all cases. The public is interested in the marriage relation and the maintenance of its integrity, as it is the foundation of the social system, and the law wisely requires proof of the facts, alleged as the ground for its dissolution.”
Great reliance is placed by counsel in the effect of defendant’s letters as corroborating the testimony of the respondent as to the facts and circumstances of desertion. There is no doubt but what such letters are competent evidence to be introduced as tending to prove desertion, but they are written statements or admissions of one of the parties, and under the-provisions of said sec. 2471 require some corroboration. The-wife appeared and defended in this action, and maintains that she has not deserted the husband and gives some explanation of why she wrote some of those letters in which she made, certain statements in regard to separation and that she had become a “man-hater.” In Vanzeke v. Vanzeke, 94 Cal. 227" court="Cal." date_filed="1892-03-31" href="https://app.midpage.ai/document/anderson-v-yoakum-5445916?utm_source=webapp" opinion_id="5445916">94 Cal. 227, 29 P. 499" court="Cal." date_filed="1892-03-31" href="https://app.midpage.ai/document/venzke-v-venzke-5445915?utm_source=webapp" opinion_id="5445915">29 Pac. 499, the court, in referring to the degree of corroboration required in such cases, said:
“The degree of corroboration required by see. 130 of the Civil Code has never been defined, and it has been said that, in the very nature of the case, it would be impossible to lay down a general rule as to the degree of corroboration which will be requisite; hence the statute only requires that there*25 shall be some corroborating evidence,” meaning, as we suppose, that there must be some evidence corroborating the plaintiff aside from the testimony or confession or admissions of the defendant made in her letters to the plaintiff, or in her testimony during the trial.
The allegations and prayer of the complaint are significant in that the son is not referred to therein. The prayer is that the bonds of matrimony between respondent and appellant be dissolved, and that the appellant be decreed to hold said real estate in trust for the respondent and that she reeonvey the same to respondent. This, to me, seems remarkable, inasmuch as it appears from the record that the appellant had been supporting the child all these years, and now respondent seeks to rid himself of both the appellant and his child, and to recover title to all of said real estate without making any provision for the support and maintenance of the son.
So far as the probative facts are concerned in regard to the issue of desertion, there is no substantial conflict in the evidence, and from a careful consideration of all of the evidence upon that issue, we are fully satisfied that the third finding of fact made by the trial court is not supported by the evidence. That finding is as follows: “That more than one year before the commencement of this action, the defendant wilfully and without cause, deserted and abandoned plaintiff, and ever since has continued to live separate and apart from him without sufficient cause and without any reason, against his will and without his consent.”
This conclusion makes it unnecessary for us to pass upon the issues raised in regard to the real estate, as in actions for divorce the question of the ownership of real estate will not be determined unless the divorce is granted. It is therefore unnecessary for us to determine the issues of law raised in regard to the introduction or rejection of evidence on the issues as to the ownership of said real estate.
A number of assignments of error are based on the admission of certain letters from the appellant to the respondent. There was no error in admitting those letters. "While there
We therefore conclude that the judgment granting the divorce, as well as the judgment in regard to the real estate, must be set aside, and it is so ordered. Costs of this appeal are awarded to the appellant.