Bennett v. Bennett, 43 Conn. 313

Bennett v. Bennett

43 Conn. 313 | Conn. | 1876

Pardee, J.

In June, 1873, the petitioner brought a petition to the Superior Court asking for a decree divorcing her *317from the respondent. She alleged that he wilfully deserted her on the first day of January, 1868, and had ever since continued his desertion, with total neglect of all the duties of the marriage covenant on his part to he performed. The court appointed a committee to inquire and report as to the truth of this allegation.

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*318nicate to lier the offer of his mother to contribute towards his expenses. The petitioner refused to leave her father’s house without some additional guarantee or assurance of support. In May, 1870, she came to Bridgeport with her children, where she has ever since resided. The respondent came there in the following June, and asked for an interview, but she refused to see him; he came again in June, 1871, and asked to see the children, and was told that they were in New York; he saw them there, but did not ask to see the petitioner. He has contributed nothing towards her support during her residence in Bridgeport. The petitioner and the respondent kept up a correspondence with each other during all their mai’ried life, aixd he occasionally visited her at her father’s house uxxtil the winter of 1870; and she testified that he had never seexned unwilling to do what he could for her.

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 *319a desire and an intent on tlie part of both to resume cohabitation -whenever circumstances will permit, such separation is not desertion in the eye of the law. The report discloses repeated attempts on the part of the respondent to establish a homo for himself and family, followed, it is true, by repeated failures; it discloses persistent efforts to bring the petitioner back after her last departure toiler father’s house; efforts which ceased only after her refusal to see him, or read a letter from him, or make any answer to a suggestion of help from his mother. It does not disclose any intent on his part to live separate from his wife after he should become able to make a satisfactory home for both; and it does show affirmatively that he has always been willing to contribute towards her support to the extent of his ability.

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*320ure, tlie fact that the money by means of which this is accomplished is given to and not earned by the respondent, is of no legal significance. There are cases in which courts have assigned children of tender age to the care of the mother upon the breaking up of the family, preferring their good to the strict rights of a father who is either unable or unwilling to live with them and their mother; but this report presents no facts as a basis for such action. The committee has not found either moral or legal unfitness; without hearing any testimony the court has found this second fact in addition to those found by the committee; a fact which is made the basis of a decree depriving the respondent of the care and custody of his children until the further order of the court. Thus the decree is made to rest upon the finding by the court of two facts neither of which had been found by the committee ■and which the court had no power to find except from evidence presented upon a supplemental hearing.

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.