Cooper v. Cooper

17 Mich. 205 | Mich. | 1868

Campbell J.

Complainant filed his bill to obtain a divorce on the ground of desertion. Defendant is shown, beyond dispute, to have left him in a somewhat clandestine manner in May, 1861, and to have remained away from him ever since, and it does not appear that 'there was at that time any immediate provocation which would, of itself, have explained or justified such a departure in the case of a wife, without some further reason lying back of it. Unexplained, such a desertion would come within the statute.

But the defendant resists the divorce on two grounds; First, Because she claims they had previously separated for good cause, and that their reconciliation had been conditional, and the conduct of her husband justified her leaving; and, Secondly, Because he had since been guilty of adultery, and had thereby debarred himself from claiming a divorce on any ground.

It appears that the parties had lived very unhappily together for several years, and that complainant’s conduct had been unkind and harsh, and, at times, violent. In 1859, they agreed on articles of separation, whereby certain property and the custody of a part of the children were secured to the wife, with the usual covenants on her behalf, by a third person, who was made a temporary trustee to effect the transfers. In December, 1860, she was induced to return and live with him, and continued to do so until the time she left in May, 1861. During most of this time it appears that their domestic relations were very much as they had been formerly.

It is claimed by complainant that this return amounted to a condonation of the former grievances, and that there had been no new cause of divorce which she could have relied on. "We do not think that, in the technical sense, there was any case for condonation. The rights of the parties depend on very different grounds than those to which the effect of a condonation is usually sought to be applied. If they had never separated, it is not clear that the wife would have had any ground for a divorce previous to 1859. The law does not permit courts to sever the marriage bond and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance of whatever kind must be of the most aggravated nature to justify a divorce. While the proof shows that these parties lived in very unpleasant relations, it is not clear that matters had proceeded to extremity.

But desertion can only be complained of when it is against the will of the party who is deserted, and constitutes a grievance which deprives him of the society of his wife without his consent or acquiescence. If there be a separation by consent, that consent shows that the parties deem it no grievance to be deprived of each other’s society, and nothing but an unconditional and entire resumption of their early relations can restore them to such a position as would make a new separation by the departure of the wife, as in this case, a criminal desertion.

In the case before us, although the wife returned, there was no cancellation of the articles'of separation, and no return of the property which had been divided, although there is some reason to believe that the husband had in view the purpose of getting her means away from her more than that of restoring’ the harmony of his household. It is very evident that the wife did not intend to remain with him unconditionally, and did not renounce her right under the articles. But she did not find the peace and harmony she desired, and he is estopped by the articles and by his conduct from now complaining of her desertion. It can not in law be regarded as a violation of his rights.

As we do not regard the defendant as having been guilty of desertion, it becomes needless to inquire whether she could, if guilty, rely on his subsequent adultery by way of recrimination. We shall, therefore, omit any discussion of the evidence on that subject.

The decree of the court below, granting a divorce, must be reversed, and the bill must be dismissed, with costs of both courts.

It is proper also to make complainant chargeable to some extent for tbe expenses of litigation, which should not he thrown entirely on the funds given for her separate maintenance. He must,- therefore, pay a further sum of one hundred and fifty dollars to the defendant, by way of allowance for such expenses.

The other Justices concurred.