Morse v. Morse

65 Vt. 112 | Vt. | 1893

ROWELL, J.

No. 33 of the Acts of 1890 provides that when a husband fails without just cause to furnish suitable support for his wife, or has deserted her, or when the wife, for a justifiable cause, is actually living apart from her husband, the county court may, on the application of either party, make such order as it deems expedient concerning the support of the wife. This statute introduces a new and an important element into the law of domestic relations in this State, and we do not purpose to give it construction beyond what is necessary to decide the case before us; there- - fore we do not undertake to say definitely what is a “just cause,” or a “justifiable cause,” within the meaning of the statute. It is enough for present purposes to say that in a case like this it must be the husband’s matrimonial fault that his wife is living apart from him. But how grave that fault must be, whether sufficient to afford the wife ground for a divorce, it is not now necessary to decide. But certainly he must be in some fault. But here the husband is in no fault, unless it be that he testified he was not willing his wife should cpme back, a!nd would not support her if she did. Up to the time she went away he had always supported her suitably; and he wanted her to stay, and offered to continue to support her if she would, but she would not. True, her physical condition rendered it very proper that she should be with her married daughter, who had long cared for her, and it was natural that she should desire to be with her; but she had been well cared for at home, and would have been, and it was, in the circumstances, her duty under the law and her marriage vows to remain with her husband, for they twain are one flesh, and it cannot be said that he was in fault for her going away. Neither is he in fault for her staying away, notwithstanding his testimony, which was, undoubtedly, drawn out by tentative questioning. He has not been put to the test of- an offer on her part to return, nor does it appear that she has ever harbored a thought of returning, and it is manifest that she does not intend to return, but to coerce support in continued separation. In these circumstances, saying inter arma,wh.en even the law is silent, that he was not willing she should come back, and would not support her if she did, does not make a case against him. If she should in good faith offer to return and he refuse, it would even then stand for consideration whether he was bound to overlook the past and receive her back.

Judgment reversed and ■petition dismissed.