81 Neb. 627 | Neb. | 1908
The parties to this action were united in marriage in 1901,' and lived together as husband and wife until December, 1903, when, so far as the record discloses, without any cause the wife took her clothing and left the home of her husband and went to the home of her sister. In less than a year she was adjudged insane and committed to the hospital for the insane at Lincoln, Nebraska, where she has since remained, except that she was released on parole for a period of two months in the summer of 1905. In September, 1906, Robert Kirkpatrick, the husband, brought this action for a divorce upon the ground of Avilful abandonment for two years. A guardian ad litem Avas appointed, and answered for the defendant. The ansAver was a general denial, coupled with an averment of the facts as to her insanity and commitment to the asylum. .Upon a trial of the issues thus joined, the district court found in favor of the defendant, and denied plaintiff a divorce,
The appeal presents but a single question for determination: Can abandonment be a ground for a divorce when the offending party has been sane for less than two years after the abandonment? The determination of this question rests upon the construction to be given to the fourth subdivision of section 5328, Ann. St. 1907. This section states the grounds for which a divorce from the bonds of matrimony may be granted. The ground .stated in the fourth subdivision is: “When either party shall wilfully abandon the other without just cause for a period of two years.” Appellant contends that the facts that while of sound mind the appellee abandoned her home and husband with the intention of not returning and that she had not returned to him for more than two years are sufficient to entitle him to a divorce, and that it is immaterial that she was of unsound mind during a portion of the two years. Upon the other hand, it is contended by the guardian ad litem of the appellee that not only must the act of abandonment be wilful, but the continuation of it for two years must be wilful; that appellee, having become insane within less than a year, was incapable of being wilfully absent or of wilfully continuing the abandonment of her husband; and that therefore no right of action for divorce accrued to the appellant. The precise question does not appear to have been frequently before the courts, and but few precedents can be found. The supreme court of Iowa, in Douglass v. Douglass, 31 Ia. 421, construed a statute somewhat similar to ours, and held that it was immaterial that the offending party became insane after the abandonment and before the expiration of the period requisite to constitute a ground for divorce. The Iowa statute reads as follows: “When he wilfully deserts his wife and absents himself without a reasonable cause for the space of
We are of the opinion that the statute means and contemplates that the abandonment should be Avilfully continued by the offending party for the full period of two years. If this wore not true, we can see no reason why any definite time should be fixed in the statute for the abandonment to exist. The statute does not contemplate that the act of abandonment alone shall be sufficient ground for divorce. It must be continued for a period of two years. The cause of action does not accrue until that time. If tlie one of sound mind is entitled to have the door of repentance held open to him for two years, we think that the same opportunity should be afforded to one who is mentally incompetent; and it cannot be said that she is afforded such opportunity so long as her intellect is so clouded that she is incapable of forming the intent to return. A spouse who is insanse cannot, under our statute, be guilty of conduct that will constitute a cause for divorce in favor of the other, for the reason that she is incapable of intentionally doing or committing an act that will constitute a ground for divorce. The ground for divorce did not exist in favor of the appellant in this case at the time that appellee became insane. The cause of
The judgment of the district court is right, and should be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.