4 Wis. 64 | Wis. | 1856
By the Gourt,
This court, in the case of Hubbell vs. Hubbell (8 Wis. Rep. 662), felt bound to follow the case of Manly vs. Manly, decided by the Supreme Court under its former organization (4 Chandler Rep. 96).
By these cases it was decided, that in cases of divorce our Circuit Courts have jurisdiction under our Revised Statutes to make a decree divorcing the parties from the bands of matrimony, although the guilty party has never resided in the state, and although the acts which constituted the cause for the divorce were committed in a foreign jurisdiction. We do not feel inclined, while our statutes remain unchanged, to disturb the authority of these cases. The testimony, therefore, which was taken to show a violation of the marriage contract on the part of the respondent in the state of Massachusetts, was pertinent and proper. But we are of opinion that it is insufficient to establish the desertion set up in the bill. The only witness examined (Margaret Mul-dam), the sister of the complainant, testifies that the complainant requested the respondent to emigrate with him to Wisconsin,
We suppose that the husband must be regarded as the head of the family, and as such is clothed with authority to decide where the family shall reside; and if the wife unreasonably refuse to change her residence, when requested to ■ do so by the husband, and the husband in consequence is deprived of the society of the wife in the new home which he has selected, such conduct on the part of the wife will amount to wilful .desertion under our statute. . But when the husband seeks a divorce for such cause, the testimony should show that the refusal of the wife is unreasonable. It should show, at least, that the bodily health is sufficient to withstand the fatigues and hardships of the journey to the new home. A journey from' the state of Massachusetts to Wisconsin, in the year 1837, when the complainant changed his residence, could not be performed in safety by a female in feeble health; and as there is no testimony on the subject of her health, nor in regard to any other facts which would tend to show whether her refusal to emigrate with her husband was reasonable or unreasonable, we think that this refusal does not prove wilful desertion under the statute.'
We do not think that the fact that the defendant refused to live with the complainant in the state of Massachusetts, of itself shows wilful desertion. It may have been very proper for her to refuse; the conduct of the husband may have been such as to make the course which she adopted the only one compatible with her personal safety.
To make her refusal to live with the husband amount to desertion, the husband should have shown that his conduct was such as, at least, to make it safe for his wife to live with him; but no testimony of this kind appears in the case. All that appears as a cause for divorce is, that the wife refused to live with her husband in Massachusetts, and to emigrate with him to Wisconsin, and these facts may all be true and the defendant have violated no duty. The decree of the court below must therefore be affirmed. • ■ ■
