293 N.W. 94 | Minn. | 1940
A divorce was denied upon the ground that the separation did not constitute a desertion, since it was under the court order and judgment. The court did not pass on the question whether defendant's conduct constituted cruel and inhuman treatment of plaintiff for the reason that the action was brought exclusively on the grounds of desertion. Cruelty as a ground for divorce was not in the case.
On the appeal it is contended that the order and judgment are void as granting a limited divorce without jurisdiction, since limited divorces have been abolished by statute, and that the evidence required a finding of desertion.
1. The equitable power of the court to grant separate maintenance was not abolished by L. 1933, c. 165, repealing 2 Mason Minn. St. 1927, §§ 8608-8615, which authorized the granting of limited divorces. Barich v. Barich,
2. The statute authorizes a divorce for willful desertion for one year next preceding the commencement of the action. 2 Mason Minn. St. 1927, § 8585 (5). This means that the separation must be without sufficient cause or excuse.
Where a wife is living apart from her husband under an order or judgment of the court, the separation is neither wrongful nor unlawful for the reason that such order or judgment determines that there is legal cause for the separation and thus gives it legal sanction. Such a separation is for legal cause and with legal excuse. Lewis v. Lewis,
In 1933 our divorce statute was amended by L. 1933, c. 262, § 2, 3 Mason Minn. St. 1940 Supp. § 8585 (8), so as to authorize a divorce upon the ground of "continuous separation under a decree of limited divorce for more than 5 years next preceding the commencement of the action." In Gerdts v. Gerdts,
Defendant is allowed an attorney's fee of $100 in this court in addition to regular taxable costs and disbursements.
Affirmed.