In June, 1873, the petitioner brought a petition to the Superior Court asking for a decree divorcing her
From the report of the committee it appears that the petitioner and the respondent were married in October, 1863, with knowledge on her part that he had no property; that he was in the receipt of $1,200 per annum as a book-keeper; that they lived together in Philadelphia during the year following their marriage; that from October, 1861, to May, 1865, he was in Europe, and by his request she was at her father’s house in Now York, where she was delivered of a child, her husband contributing but $200 towards her support during his absence; that upon his return from Europe they lived together about two months in Philadelphia, when by reason of his inability to support her, and upon his request, she returned to her father’s house, where she remained during most of the time until the spring of 1867, the respondent contributing less than $300 towards her support during this last named period; that in the spring of 1867 he engaged in business and took her to Philadelphia, where they lived together until December, 1868, when in consequence of his inability to support her in a comfortable manner, and upon his request, she returned to her father’s house, and there remained until May, 1869, having meanwhile been delivered of a child,.her father bearing the expenses of her confinement; and that in May, 1869, she returned to Philadelphia, and lived with the respondent during two months, when, his business proving unsuccessful, she returned upon his request to her father’s house, where she remained until April, 1870, the respondent contributing less than $60 towards her support after her return. In February, 1870, the respondent’s mother hired a house in New Jersey, and was ready to furnish it for him and contribute $25 monthly towards his expenses. He then asked the petitioner to live with him in said house, and was very desirous that she should do so, but did not commu
By this report it is made certain that during a large part of the married life of these parties, the wife has lived separate from her husband at his i'cquest, because of his inability to furnish suppoi't for herself and their children in a satisfactory maxxxxer. But this docs not of itself constitute desertion on his paid. For the pxxi’pbses of this case it is sufficient to say that the offence of desex-tion consists in the cessation of cohabitation, coupled with a determixiatioix in the mind of the offending person not to renew it. This ixxtent is the decisive clxaractex’istic, aixd the question of ixxteixt is always a question of fact, aixd must bo proved either by direct evidence or as the necessary and certain consequence of other facts cleai’ly proved. Mere separation may x-esult from necessity or accident and be much against the will of both parties. The marriage contract does not furnish an absolute guarantee to the wife that the husband shall at all times bo able to relieve her from all efforts to support the family; inability upon his part to maintain his wife may result from his incapacity for busixiess, from losses, from sickness, from misfortune in any one of its manifold forms. If as a consequence she is compelled to suppoi't herself by her own efforts, or to rely temporarily' upon the assistance of relatives or friends, and the parties are thereby forced into a state of separation, there remaining
From the facts thus reported to the Superior Court that court has found that the respondent wilfully deserted the petitioner ; that is, that he ceased cohabitation with the determination not to renew it; thus, without hearing any testimony, finding a fact in addition to those found by the committee; a fact which it was the duty of the committee to find, if it existed; a fact which upon the evidence the committee refrained from finding; a fact which is made the basis of the decree of divorce.
Again, the report finds that the respondent is of good moral character, a member of Dr. Breed’s Presbyterian Church of Philadelphia; that while in the society of his children he manifests parental attachment to them; that he is a competent book-keeper, but is without means or regular employment; and that while he appears to have made exertions to get into employment, for some reason he has always been unsuccessful; that his mother and sister are both cultured ladies of the highest character morally and socially and of sufficient pecuniary ability to support and educate the children, and are willing to assume upon themselves such support and education. From this the court has found that the respondent is unfit to have the charge and custody of his children. But the finding discloses no want of moral qualifications; and, if food, clothing, and education are secured to the children in abundant meas
In the case of Brady v. Barnes, 42 Conn. R., 512, we have recently had occasion to determine that the court has no power to supplement reports of committees by finding additional facts without evidence.
The decree must be set aside.
In this opinion the other judges concurred; except Park, C. J., who dissented.