59 Fla. 529 | Fla. | 1910
The appellant filed his bill of complaint praying for a decree dissolving the bonds of matrimony then existing- between him and his wife, the appellee, upon two grounds: wilful, obstinate and continued desertion for more than one year, and for extreme cruelty.
A decree pro confesso was duly entered against the defendant for her failure to plead, answer or' demur to the bill of complaint on the rule day succeeding that to which process of subpoena was returnable. The cause was referred to Hon. C. H. Laney, as special master, who made a report of the testimony with recommendation that the relief prayed be granted. Upon consideration of same, the chancellor dismissed the bill and complainant appealed.
There is no conflict in the testimony. The facts are not denied or disputed. It appears that ever since these parties were married the complaining husband was without fault, but, during the last few years of their married life, the defendant was very quarrelsome and would fuss and curse the complainant almost every day. Upon one occasion the defendant tried to induce one Jane Thompson, daughter by a former husband, to put poison in the bread intended for the complainant to eat. Jane refused to do so and told Moses Hudson about it. Upon another occasion the defendant tried to hire a man to kill the complainant, and again about three months before the final separation of the parties, the defendant tried to get one C. O. Thompson to go hunting with complainant and shoot him,
We think the testimony sustains the ground of a wilful, obstinate and continued desertion for more than one year.
First, as to desertion. Mr. Bishop, in the second volume
The testimony shows that the defendant was the one who intended to bring the cohabitation to an end. After years of cursing and abusing her husband, endeavoring to take even his life, and with violent language and epithet most opprobious she drove this patient, non-offending man from the marital home. There is no doubt about the meaning of her declaration: “Moses Hudson, you God damn son-of-a-bitch, you can’t call me wife any more, and I will never live with you another day. The wife was the deserter.
Was the desertion wilful? Wilful means on purpose, intentional. As we have seen, the defendant intentionally and on purpose and wilfully brought the cohabitation to an end. Crawford v. Crawford 17 Fla. 180.
Was the desertion obstinate? Obstinate means determined, fixed, persistent. During all the years of the separation, the deserting wife was determined, fixed and persistent in putting an end to the cohabitation, in her desertion, although her husband lived near by in his boat “the best he could.” All that time, she made no effort to bring about a reconciliation or a restoration of the marital relations, which she had terminated.
In New Jersey, where the desertion must be, like here, “wilful, continued and obstinate,” in Jerolamon v. Jerolamon, .. N. J. Eq. .., 54 Atl. Rep. 166, where the husband being in fault was the deserter, the court said: “The question in the case is whether the separation was continued
We are not unmindful that the marital relation is recognized, both legally and morally, as imposing obligations pre-eminently on the husband. As the husband generally does the courting before marriage he may well continue it afterwards. As pointed out in Sargent v. Sargent, 36 N. J. Eq. (9 Stewart) 644, society, so far at least, has regarded his duty in maintaining and preserving those relations as of the superior order. “Not that the tie is more sacred or less binding on the part of the wife, but where the act of desertion occurs without reason on his part and without fault on her side, the same efforts to restore harmonious relations are not expected from her as would be from him, if the case were reversed.” The principle that the integrity of the matrimonial tie requires this of the husband is stated by the chancellor in Schanck v. Schanck, 33 N. J. Eq. (6 Stewart) 363. That was a case where a wife in anger told her husband that he
In Trall v. Trall, 32 N. J. Eq. 231, this rule is correctly stated: “Even if a wife deserts without cause, and after-wards realizes that she has acted hastily or foolishly, and would return if the way was opened for her, but the hus
And so, as decided in Lammertz v. Lammertz, 59 N. J. Eq. 649, 45 Atl. Rep. 271, “Where the wife absented herself from her husband’s home for more than two years, and such absence is not justified by her husband’s
Recognizing the general rule that the husband, being the head of the household, is bound to do what he may, as a just man, to bring about his wife’s return or a restoration of the marital relations even where the original separation was wrongful on her part, yet we think, under the peculiar circumstances of the instant case, the wife’s conduct was such as to make clear to any one that any further effort by the complainant to induce his wife to return to him would have been unavailing; and that his right to a decree is not dependent upon his having done any more than was done by him in that direction. Indeed, as was said in Trall v. Trall, supra, “any effort on the part of her husband to induce her to return would most probably have resulted in strengthening her determination to remain away.” And the evidence justifies us in adding that, perhaps, any further effort on his part to have continued the marriage relation would have caused her to end it by taking his life.
Was the desertion continued for one year? Yes, for nearly four years prior to the filing of this bill the wife’s desertion continued, as we have seen. From the time the defendant put an end to the cohabitation, she did not live with her husband another day, as she declared would be the case when she drove him away.
We think the defendant’s desertion was wilful, obstinate and continued by the wife for more than one year, and that under the facts of this case, as we gather them from the record, we are constrained to hold that the complain
The decree is reversed.