Farwell v. Farwell
133 P. 958
Mont.
1913
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to obtain a decree of divorce on the ground of adultery, and for the custody of the minor child, the issue of the marriage. The defendant answered; denied the allegations of the complaint and set forth affirmatively charges against the plaintiff of extreme cruelty, willful neglect, desertion and adultery, and asked for a decree of separate mainte*578nance and for the custody of the child. The affirmative allegations were put in issue by reply. The trial was had to the court without a jury and resulted in a judgment in favor of the plaintiff. From that judgment and from an order denying her a new trial, the defendant appealed.

1. There is complaint that the trial court failed to make [1] special findings as required by section 6763, Revised Codes, but this complaint is unavailing because appellant failed to request special findings as required by section 6766, Revised Codes. (Gans & Klein Invt. Co. v. Sanford, 35 Mont. 295, 88 Pac. 955.) In Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25, this court said: “A party failing to make such request cannot allege error because of the omission to obey the command of the statute. Every finding necessary to support the judgment will then be implied. ’ ’

2. It is contended that the prayer of plaintiff’s complaint [2] should have been denied because of his connivance; but aside from the fact that this defense is not pleaded, there is little, if any, evidence tending to support the charge. “Connivance” is defined by section 3659, Revised Codes, as “the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce.” It is little less than a crime generally,' and may constitute a crime under certain circumstances. The idea that a husband willingly submits to his wife’s illicit intercourse is so repulsive and so odious, that the law wisely requires that the consent to adultery must be established by clear and convincing proof. (2 Bishop on Marriage, Divorce and Separation, sec. 223.) The fact that the [3] plaintiff, suspecting his wife of adultery, laid a trap and caught her flagrante delicto, thereby securing evidence to be used by him in his divorce proceeding, is not sufficient to charge him with connivance so long as he was not in any respect responsible for her adulterous act. (14 Cyc. 646.)

In Robbins v. Robbins, 140 Mass. 528, 54 Am. Rep. 488, 5 N. E. 837, the court said: ‘ ‘ There is a manifest distinction between the desire and intent of a husband that his wife, whom he believes to be chaste, should commit adultery, and his desire and *579intent to obtain evidence- against his wife, whom he believes already to have committed adultery and to persist in her adulterous practices whenever she has opportunity.”

In Wilson v. Wilson, 154 Mass. 194, 26 Am. St. Rep. 237, 12 L. R. A. 524, 28 N. E. 167, the rale is stated as follows: “Merely suffering, in a single case, a wife, whom he already suspects of having been guilty of adultery, to avail herself to the full extent of an opportunity to indulge her adulterous disposition, which she has arranged without his knowledge, does not constitute a connivance on the part of the husband, even though he hopes he may obtain proof which will entitle him to a divorce, and purposely refrains from warning her for that reason. He may properly watch his wife, whom he suspects of adultery, in order to obtain proof of that fact. * * * The law does not compel a husband to remain always bound to a wife whom he suspects, and it allows him, as it does other parties who think they are being wronged, reasonable scope in their efforts to discover whether the suspected party is or is not guilty, without themselves being adjudged guilty of conniving at the crime which they are seeking to detect.” The same doctrine is announced by the Iowa court as follows: “It seems to be well settled that a husband may watch his wife whom he suspects, and may even leave open the opportunities which he finds, so long as he does not make new ones or invite the wrong.” (Puth v. Zimbleman, 99 Iowa, 641, 68 N. W. 895; see, also, Lee v. Hammond, 114 Wis. 550, 90 N. W. 1073.)

3. Upon the recriminatory charges of extreme cruelty and adultery, the evidence is sharply conflicting, consisting in the [4] main of the testimony of the wife in support, and of the husband in denial, of each of these charges. The trial court, having the advantage of seeing the witnesses upon the stand, hearing them testify and observing their demeanor, resolved the questions raised upon these charges in favor of the plaintiff, and with that conclusion we are not justified in interfering. The appellant has the burden of showing that the evidence preponderates against the trial court’s findings. (Reid v. Hennessy Merc. Co., 45 Mont. 383, 123 Pac. 397.)

*5804. With respect to the charges of willful desertion and willful neglect, there is not any substantial conflict in, the evidence. For a short time before the commencement of this action plaintiff contributed toward the support of his wife and eight year old son, forty-five or fifty dollars per month; thirty-five dollars per month for a short time, and thirty dollars per month for the remainder of the period during which the parties lived apart. There is also evidence that he paid some doctor bills and probably gave to his wife small sums in addition to the amounts named above. There is not any question of the husband’s ability. At the time of the trial he was earning $200 per month. In the December previous he was earning $175 per month. What his 'earnings were during the remainder of the time does not appear. “Willful neglect” is defined in section 3654, Revised Codes, as “the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so, or it is the failure to do so by reason of idleness, profligacy or dissipation.” At first blush it would seem that the amounts paid by this plaintiff to his wife for the support of herself and child were altogether inadequate for that purpose, and out of proportion to his earnings; but it is fairly inferable from the evidence that the amounts were either agreed upon by the parties or fixed by the court in a separate proceeding instituted for the purpose of compelling him to furnish support. In our consideration of this matter we are embarrassed somewhat by the meagerness of facts disclosed and by the attitude of counsel in proceeding upon assumptions not entirely warranted by the record. Apparently the cause was tried upon [5] a well-defined theory, and it is our duty to review alleged errors in the light of that theory so far as it is disclosed. With respect to this particular charge of willful neglect we are simply unable to say from the record before us whether or not it was made out. It was relied upon as an affirmative defense and the burden of proof was upon the defendant. The trial court determined the issue in favor of the plaintiff, and there is not sufficient in the record before us to warrant a reversal of that conclusion.

*581With respect to the charge of willful desertion, the evidence discloses that while these parties were living in Lincoln, [6, 7] Nebraska, the plaintiff left his wife, notifying her that he did not intend to live with her longer, and came to Montana with the intention that he would not resume the marital relation with her; that the defendant soon afterward followed him to this state, and that they resided in Butte but continued to live separate and apart. Assuming that these facts make out a prima facie case of desertion in the absence of any explanation, the question then arises: Has plaintiff brought himself within any well-recognized exception to the general rule which requires the husband to live with his wife and perform the duties imposed by the marital relation. In explanation of his conduct and as excusatory thereof, the plaintiff testified that while they were living together in Lincoln, Nebraska, his wife drank to excess, came home intoxicated, and spent the nights away from home; that he detected her visiting houses of bad repute and that she admitted to him that she was committing adultery. The wife did not deny any of these matters, and the trial court’s general finding is a finding that these statements are true. These facts constitute the plaintiff’s excuse for his failure to live and cohabit with his wife, and that they are sufficient to warrant him in leaving her, there is not any substantial disagreement in the authorities.

“Willful desertion” is defined by section 3646, Revised Codes, as “the voluntary separation of one of the married parties from the other with intent to desert.” The definition implies that the separation is without justification. (14 Cyc. 611; Luper v. Luper (Or.), 96 Pac. 1099.) In 1 Bishop on Marriage, Divorce and Separation, section 1742, a general rule is stated as follows : ‘ ‘ Where there is no consent, acquiescence or estoppel as just explained, no ills arising out of the marriage, or ill-conduct of one party to the other, will so justify a breaking off of the cohabitation as to prevent its being desertion, except ill-conduct of the sort and degree which the law has made foundation for divorce.” In Stocking v. Stocking, 76 Minn. 292, 79 N. W. 172, 668, the supreme court of Minnesota criticises the rule an*582nouneed by Bishop and says: “On principle, and what seems to be the weight of authority, we hold that the misconduct of one of the parties to the contract of marriage, which will so- far justify the injured party in leaving that the separation will not constitute willful desertion, need not necessarily be such as to entitle -the injured party to a divorce. It is sufficient if the party withdrawing from the cohabitation has reasonable grounds for believing, and does honestly believe, that by reason of the actual misconduct of the other it cannot be longer continued with health, safety, or self-respect.” "We are inclined to agree with the Minnesota court; but even if the more rigid rule announced by Bishop should govern, the excuse offered by this plaintiff is sufficient. At the time he left his wife he could have maintained an action against her for divorce for her misconduct, and therefore the' separation did not constitute desertion on his part.

There is not any reversible error in the record. The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.