57 Wash. 639 | Wash. | 1910
This is an appeal from a judgment of the superior court of King county, granting the respondent a divorce from the appellant. In his complaint the respondent charged the appellant with personal indignities rendering his life burdensome. He alleged that he was a physician and surgeon, engaged in the general practice of his profession; that his wife was of a jealous nature, having a nervous tem
In her answer to the complaint the appellant denied generally all the allegations of misconduct on her part, and pleaded affirmatively that she had always demeaned herself as a dutiful and obedient wife.
The evidence of neither of the parties given at the trial quite sustained the allegations of their respective pleadings. The respondent did testify to constant bickerings and quarrels between himself and his wife, and to matters tending to> support his complaint in other respects. But in giving particulars he leaves a strong inference that some of the inquiries of the wife did not arise so much from jealousy or so much from a desire to know who his patients were and the several diseases as it did to know how the family was getting
The appellant in her testimony also supported in the main the allegations of her answer. She denies absolutely that she even quarreled with her husband. She testified that he would often become irritable and quarrelsome, when he would use towards her much profane language, but that she did not answer him back, but would often cry because of his treatment of her. She denies ever having inquired into matters relating to his practice, or that she ever desired to know who he was treating or the sex of his patients, or the diseases with which they were suffering. She testified, also, that she did not know why her husband quit his home and took up his residence elsewhere. She admits soliciting him to return and promising him to do better, yet she says that when making the promise she did not know in what way she had offended. In fact, she denies in detail all the allegations of wrongdoing the husband makes against her. There is, however, in the record some things that indicate that she
But the record does something more than this. It makes it plain that the appellant might have admitted all that she has seemingly improperly denied, and still not have forfeited her title to respect as a dutiful and faithful wife. Her’s has been the heroic part. The parties have two children, a daughter aged fifteen years, and a son aged thirteen. The daughter has been epileptic since her infancy, and requires the almost constant care of some one. The mother, since the birth of her son, has been afflicted with articular rheumatism, which at all times causes her more or less pain and sometimes renders her almost helpless. Yet, notwithstanding her infirmity, she has cared for her daughter, kept lodgers to help out the family income, performed her household duties,' all for the greater part of the time without domestic help. It would seem that if at times her burdens caused her to cry out for relief, common justice would forbid laying a penalty upon her for so doing.
The respondent’s conduct appears base and mean, when compared with that of the appellant. Doubtless his infirmity furnished him a measure of excuse, but it would hardly seem to justify his conduct in its entirety. By his own story, he is ill-tempered and profane, and the record convicts him of selfishness in the extreme. If a sacrifice was required to be made, it seemed to fall upon the wife, while the periods of recreation always fell to his share. Indeed, the only time he
The lower court granted the respondent a divorce on the ground that it was satisfied that the parties could no longer live together; but this is not a sufficient cause for divorce, under the statute. It is true that the statute, after enumerating certain causes for which divorces may be granted, provides : “And a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together.” [Rem. & Bal. Code, § 982.] But this does not authorize a divorce without some distinct cause found by the court which it shall deem sufficient. It is not enough that the record may convince the court that the parties can no longer live together. Some cause for that condition must be found, and the cause must not be brought about by the misconduct of the party seeking the divorce. As we said in Wheeler v. Wheeler, 38 Wash. 491, 80 Pac. 762:
“The trial judge evidently labored under an impression that he was authorized to grant a divorce upon the finding that the parties can no longer live together. But there is no such provision in the statute. Bal. Code, § 5716, provides, that the court may grant divorces for certain causes therein
See, also, Poler v. Poler, 32 Wash. 400, 73 Pac. 372; Stanley v. Stanley, 24 Wash. 460, 64 Pac. 732; Colvin v. Colvin, 15 Wash. 490, 46 Pac. 1029. If, therefore, we should take the respondent’s assertion to the effect that it is impossible for him and his wife to longer live together at its full value, it would not justify the decree of the lower court.
Counsel for respondent however well say that if a sufficient cause is shown by the record why the parties cannot longer live together this court will affirm the judgment notwithstanding the trial court made no finding in regard thereto. But we cannot follow them in their contention that a sufficient cause does appear in the record. We think the respondent’s abandonment of his home was wholly uncalled for, and unwarranted by any act on the part of his wife.
The decree appealed from is reversed, and the case remanded with instructions to dismiss the action.