16 Mo. App. 422 | Mo. Ct. App. | 1885
Lead Opinion
delivered the opinion of the court.
The plaiutiff brought this action, for divorce on the ground of abandonment. The answer is a general denial, and also a count in the nature of a cross-bill averring that “ for more than one year prior to the filing hereof, the plaintiff, without any reasonable cause, has deserted, and absented himself from defendant, and has utterly failed, neglected, and refused to provide for defendant’s support, wherefore defendant prays to be divorced,” etc.
The evidence shows that the parties intermarried on the 26th of August, 1873, and that they lived together as husband and wife a little over three months, until December 4, 1873, when the defendant left the plaintiff’s house and has never since returned ; that four days after thus leaving she brought an action for divorce on the ground of ill-treatment, in which action the circuit court at special term rendered a judment for the defendant (now plaintiff) ; that on appeal to the general term this judgment was reversed ; that on appeal from the general term to this court the judg
It also appeared that, since the rendition of the judgment of this court in the former case, which was in the year 1876, the plaintiff and defendant have continued to live apart from each other and to hold no communication whatever with each other. The plaintiff, has made no effort or solicitation, either directly or through friends, to induce the defendant to return to his bed and board; nor has the defendant offered to return, or made the slightest attempt at reconciliation. The plaintiff, in his testimony, gives as his reason for not making any attempt at reconciliation, that the defendant had brought the former suit for divorce against him, and had made charges therein which were false; and the defendant gives no substantial reason for refusing to return to him, except the ill-treatment which induced her original departure.
1. It is perceived that the present action is grounded upon the allegation that the defendant has absented herself from the plaintiff without a reasonable cause for the space of one year, within the meaning of section 2174, Revised Statutes. It is urged on behalf of the plaintiff that the reasonable cause mentioned in this statute, which will justify a permanent separation of a wife from her husband, or husband from his wife, must be such a cause as would, under some other clause of the same section, constitute a ground of divorce. In Gillinwaters v. Gillinwaters (28 Mo. 61), it was said by Scott, J., in giving the opinion of the court: “The conduct of a husband towards his wife may be such as would warrant her in leaving him, al
2. The remaining question is, whether the defendant was entitled to a divorce upon her cross petition. It is clear that she was not. The only ground of divorce which she sets up is, that “ for more than one year prior to the filing thereof the plaintiff, without any reasonable cause, has deserted and absented himself from defendant, and has utterly failed, neglected, and refused to provide for defendant’s support.” The defendant’s evidence fails to sustain any of these allegations. She, and not he, left the family residence, and has ever since remained away from it. She left under grievous provocation, but it was conclusively adjudicated by this court in the former action that this provocation did not render her condition intolerable and was hence not a ground for divorce. It may, as already suggested, have excused a temporary withdrawal; but before she can turn it into a desertion on his part, — if she could do it at all, which we do not decide, — she must at least show that she has offered to return to him and has been repulsed. It is argued, on the authority of decisions in other states, that where a husband repels his wife from him by intolerable indignities, he, and not she, is guilty of desertion. Whether this is a correct view or not, we do not feel called upon to decide; but we are clear that, where the indignities are not of themselves a sufficient cause for divorce, it would be absurd to hold that the wife can, by remaining away in consequence of such indignities, create for herself
The case then lies in a small compass: These spouses have quarreled and separated. They remain absent from each other, and hold no communication with each other, by mutual consent. Both voluntarily agree to the separation ; therefore neither can charge it as a wrong against the other, and neither can make it a ground for claiming a divorce.
The judgment of the circuit court is reversed; and the court here proceeding to give the judgment which the circuit court should have given, renders its judgment .that the plaintiff take nothing by his petition, and that the defendant take nothing by her answer. It is so ordered.
Concurrence Opinion
I concur in the result reached in the foregoing opinion, and believe the decree now rendered by this court is proper, and warranted by the record. In doing so, however, I desire to place myself strictly on the ground that the record warrants the conclusion that the separation of the wife from the husband continued with his consent. This brings the case within the rule of Simpson v. Simpson, (31 Mo. 24), which has never been denied.
The position taken in Gillinwaters v. Gillinwaters (28 Mo. 61), that “ the conduct of a husband towards his wife may be such as would warrant her in leaving him, although it would not entitle her to a divorce, is unquestionably adapted to ensure that mutual forbearance between husband anS wife which is best designed to foster domestic peace and happiness, and it is to be deplored that the court did not adhere to it. But I can not reconcile that position with the subsequent decision of Hoffman v. Hoffman (43 Mo. 547), where the same court, in substance, held that husband or wife do not cease to be the injured party, by conduct however reprehensible, unless it be such as entitles the other party to a divorce. I can not therefore assent to that part of the opinion of my associates which attempts to reconcile the two cases above cited.