Marshak v. Marshak

115 Ark. 51 | Ark. | 1914

Hart, J.,

(after stating the facts). The sole ground upon which the plaintiff relied to obtain a divorce was desertion. The second subdivision of section 2672 of Kirby’s Digest provides that the courts shall have power to dissolve a marriage contract where either party wilfully deserts and absents himself or herself from the other for a space of one year without reasonable cause. The record shows that the defendant has been absent from the home of the plaintiff for more than one year before the institution of this action. It is the contention of the plaintiff that the husband, because he is legally responsible for the support o-f his family, has an absolute right to choose and establish the domicile; it is also the contention of the plaintiff that the preponderance of the evidence shows that the parents of the plaintiff did not abuse and mistreat the defendant, and that her refusal to live with the plaintiff at the home of his parents was without reasonable cause, and amounted to. desertion within the meaning of the statute.

On the other hand, it is contended by counsel for the defendant, as held by the Supreme Court of Nebraska in the case of Brewer v. Brewer, 13 L. R. A. (N. S.) 222, that every wife is entitled to a home corresponding with the circumstances and condition of her husband, over which she shall be permitted to preside as mistress; and that she is not guilty of desertion within the meaning of the statute where she refuses to live in the home of her husband’s parents which is under their domination and control. To the same effect see Powell v. Powell, 29 Vt. 148; Hall v. Hall, 34 L. R. A. (N. S.) 758.

(1) We have reached the conclusion that the chancellor did not err in refusing to grant a divorce to the plaintiff, but, in doing so, we do not deem it necessary to adopt in its entirety the contention of either party to this suit. It is apparent from the record that, while the parties to this suit may not have lived in perfect harmony, the principal subject of difference between them 'at any time was as to living with the mother .and father of the plaintiff. The plaintiff testified that before the marriage the wife agreed to live with him at the home of his parents. This was an ante-nuptial contract and has no binding force. It was terminated by and merged into their marriage contract which bound them to live together as husband and wife.

(2) The principal question for us to determine is whether or not the wife wilfully remained .away from the home of her spouse for a year without reasonable cause. We do not deem it necessary to determine whether or not under any circumstances the husband could establish his domicile at the home of his parents and compel his wife to live there or (be guilty of desertion within the meaning of the statute. It is true the parents of the plaintiff testified that they did not abuse or mistreat the ' defendant while she lived with them. In this respect they are corroborated by the plaintiff, but we do not deem that to be decisive of the rights of the parties in this case. The undisputed facts show that the parents had ample means of their own to support them, that they were not feeble in body or weak in mind, and that they did not need the services of their son to wait upon them. Besides, the record shows that they had two other sons, married and residing in the neighborhood, to whom they had deeded a part of their property and with whom they were on affectionate terms. .

If it be conceded that the parents of the plaintiff did not call the defendant vile names or abuse and mistreat her to the extent that she claims they did, still it is apparent from the record that the defendant could not get along with the plaintiff’s parents and that their relations were unfriendly and unpleasant. The plaintiff’s mother says that she did not quarrel 'with the defendant but admits that she did tell her that she was away from home too much. The defendant testified that after she left the plaintiff and before this suit was instituted that she told him she could not get along with his parents and live happily in their home, and that she was perfectly willing to live with him at any other home he might provide. We do not think the defendant left her husband because she 'did not desire to live with him, but, on the contrary, she left him because she was not able to live happily in the home of 'his parents. There was no necessity for her to live there. The plaintiff was a strong, able-bodied young man, and was able to provide her a home at another place. Under the circumstances, we think a just and affectionate husband should have listened to the pleadings of his wife and should not have arbitrarily 'Confronted her with a decision of either living unhappily with him at his parents’ home or living separate and apart from Mm at another place.

■ We do not regard the letters of the parties to each other written after the institution of the' suit as of any importance in the case. It seems that these letters were written by each one simply for the purpose of obtaining an advantage over the ¡other in the trial of the case. If the parties were sincere in the statements they made in their letters, there seems to be no reasonable cause why they should not again live together. They are both young, and of good moral character. It is true, the evidence shows that the defendant was seen in the company of some neighbor girls who bore a bad reputation, but there is nothing whatever in the record from which it might be inferred that the defendant herself has been guilty of any improper conduct. Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason, the State has an interest in every divorce suit, and the marital relation, once established, ¡continues until the marriage contract is dissolved upon some ground prescribed by the statute. The law presumes that when parties enter into the banns of matrimony they do so with a full realization ¡of the frailties of human nature and with full recognition of their duty ¡of mutual forbearance of the faults of each other.

The decree will be ¡affirmed.