Jewell v. Jewell
292 P. 616
Nev.
1930
Check Treatment

The testimony in this case does not justify a finding that the defendant failed, neglected and refused to support the plaintiff for one year prior to the commencement of the action, nor does it justify the entry of a decree of divorce upon such grounds. There is no evidence that the plaintiff ever asked the defendant for any money during the period, nor is it shown affirmatively that she was ever deprived of the necessaries of life. The husband had always supported her, and testified that he was willing to provide for her, to comply with any order that the court might feel reasonable, and give her any money that she needed for her support, regardless of court order. The mere failure of the defendant to give his wife money is not a failure to support. Donley v. Donley, 131 S.W. 356; 19 C.J. sec. 145, p. 72. See, also, Baker v. Baker (Cal.), 143 P. 607 and 608; Ann. Cas. 1916A, 854, note at 856; 19 C.J., sec. 148, p. 73.

Where the earnings of the husband and wife are community property and they are retained by the wife *Page 98 and are sufficient for her support, she may not secure a divorce upon the grounds of nonsupport. Baker v. Baker, supra; 19 C.J., sec. 148; Rycraft v. Rycraft, 42 Cal. 444; Washburn v. Washburn,9 Cal. 475; Hansen v. Hansen, 150 P. 70. Under all the evidence we find that the trial court was justified in the written decision which it filed and in adopting its findings of fact that the defendant had utterly failed, neglected and refused to support the plaintiff for more than the statutory period of one year prior to the commencement of the action, and was also justified in its conclusions of law upon which its judgment was based. The failure of the husband to give his wife any money or otherwise to provide for her support and maintenance for one year is a ground for a divorce.

The California statute is so widely at variance with the Nevada statute that a California decision upon the question of nonsupport could have no possible bearing upon the law in the instant case. Under a statute which requires the willful neglect of the husband, etc., a case of simple neglect or refusal to support is not sufficient to justify a decree. 14 Cyc. 624 (II); Holt v. Holt, 117 Mass. 202. The California statute requires that the failure to provide for his wife the common necessaries of life shall be willful, he having the ability so to do, etc. And, contrary to the weight of authority (14 Cyc. 624; State v. Witham, 35 N.W. 934), the California cases hold that the term "ability" has reference to the possession by the husband of the means in property to provide necessaries, and not to his capacity of acquiring such means by labor.

Based upon the testimony, we think the opinion rendered in the case of Swain v. Swain (Wash.), 87 P. 1126, is on all fours with the facts and is conclusive of the law to be applied in this case. The following cases are also applicable to plaintiff's contentions in this action: *Page 99 Merriman v. Merriman (Wash.), 134 P. 1058; Garland v. Garland (Wash.), 119 P. 386; Locke v. Locke, 94 P. 244; Wagner v. Wagner (Cal.), 37 P. 937.

OPINION
This is an appeal from a decree of divorce in favor of the wife and against the husband on the ground of nonsupport. The trial court found that the defendant, who is appealing here, although an able-bodied man, had failed, refused, and neglected for a period of more than one year to provide for the plaintiff the common necessities of life, and that such refusal, failure and neglect was not the result of poverty on the part of the defendant, which could not be avoided by ordinary industry.

1. It is claimed by appellant that the evidence is not sufficient to establish such nonsupport as is required by the statute to be a ground for divorce. We think that it is sufficient. The statute provides as the seventh ground for divorce in this state as follows:

"Neglect of the husband, for the period of one year, to provide the common necessaries of life, when such neglect is not the result of poverty on the part of the husband, which he could not avoid by ordinary industry." Rev. Laws, sec. 5838, subd. 7.

This action was commenced on October 19, 1926, and it appears from the testimony that appellant had not given her any money for her support for more than one year prior to the commencement of the action. He gave her $100 in July of the preceding year, and in October, 1925, before the suit was commenced, he gave her $100. She testified that she received nothing from him after that time, either in money, clothing, or provision for her support. During the eight years preceding the trial of the action her only income was $65 per month derived from property which the court found to be her separate property. During this time appellant was an able-bodied man, and was receiving a salary of $150 per *Page 100 month. These facts are undisputed, and support the finding of nonsupport. It appears from the testimony that respondent had not asked appellant for any money for her support during the year immediately preceding the commencement of the action, and he testified he was willing to support his wife; that she had never made any demand upon him for her support that he did not meet.

2, 3. From these circumstances, and the fact that during their married life and until a few years before the trial appellant always turned over to respondent a part of his wages for her support, it is urged that his failure to do so during the year preceding the commencement of the action was not willful, and consequently did not amount to nonsupport within the meaning of the statute. There is some evidence in this case from which it could be inferred that the neglect was willful, but, be that as it may, the statute does not prescribe willful neglect as an element of the seventh ground of divorce. Simple neglect is the conduct denounced by the statute. It may arise from shiftlessness as well as from intention. If the husband is able to provide and fails to do so, his good intentions are immaterial. It is his duty to do so unless he is otherwise legally excusable. Swain v. Swain, 45 Wash. 184, 87 P. 1126.

The judgment is affirmed. *Page 101