107 Ark. 262 | Ark. | 1913
(after stating the facts). After the statement of facts, hut little more need be said. It may be conceded that according to the decided weight of authority, a refusal by one spouse to have sexual intercourse with the other is not willful desertion and does not generally, under statutes like ours, constitute grounds of divorce. But that is not the question for our consideration. Appellee is not seeking a divorce from .appellant upon such grounds. The question presented by this record is whether or not appellant has established a right to divorce upon the ground that appellee has willfully deserted her, or offered her. such indignities as to render her condition in life intolerable. The chancellor found that “neither the leaving nor absence was willful upon the part of the defendant;” that “it was not only provoked by plaintiff, but consented to by her.” The chancellor was correct in these findings. The burden of proof was upon appellant, and any conflicts between her testimony and appellee’s must be resolved in favor of the latter. Rie v. Rie, 34 Ark. 37.
The principles announced by this court in Rigsby v. Rigsby, 82 Ark. 278, when applied to the facts of this record, show that there was no willful desertion of appellant by appellee. See 9 Am. & Eng. Enc. of Law, 223. WThere the separation is by consent, there can not be willful desertion. Reed v. Reed, 62 Ark. 611. It is held in Hankinson v. Hankinson, 33 N. J. Eq. 66, that “the separation of a husband and wife, acquiesced in by the wife, and which she did much to bring about, however long continued, does not constitute desertion to authorize a divorce” on the wife’s petition. “Desertion must be without the consent and against the will of complainant.” Sergent v. Sergent, 33 N. J. Eq. 204. The separation here was plainly not against the will of appellant as shown by her letter 6f August 3, 1910.
The opinion might be extended at length (arguendo) in discussing the facts. But inasmuch as the divorce can not be granted, and as nothing could be said in commendation, justification, or even extenuation of the conduct of appellant towards appellee, the least said the better.
Affirmed.
