Sanders v. Sanders

135 Wis. 613 | Wis. | 1908

SiebeckeR, J.

The court awarded judgment of divorce upon the ground that the evidence established that the parties had voluntarily lived entirely separate for the space of five years next preceding the commencement, of the action. To constitute such a voluntary separation it must appear that the separation was mutually voluntary in its inception and so continued throughout the statutory period. Appellant challenges the court’s finding of fact that the evidence established such a voluntary separation. The plaintiff’s evidence is clearly and explicitly to this effect, but it is claimed that it was successfully impeached and that it stands uncorroborated in the case. An examination of the evidence of the parties shows that from January, 1901, they lived en-' tirely separate. Their conduct from this time is clearly indicative of a mutual understanding to live separate. This, is not only manifested by their actually living so separated, but also by their mutual treatment of one another, and by their conduct showing that neither party made any effort to perform their reciprocal marital obligations.

The defendant asserts that his letters to the plaintiff show that he did not voluntarily consent to live separate, as plaintiff claims. True, parts of these letters express the wish that they live together as husband and wife, but other, parts as clearly refute such a desire. We are of opinion that the trial court was justified in the inference that “While some of the letters of the defendant seem to indicate a desire that the plaintiff resume marital relations, and thus that the living apart was not mutually voluntary, tailing the communications as a whole they seem to be of a nature to repel rather than to invite the resumption of those relations; and to indicate that if the plaintiff desired to stay away from him, that defendant would be willing that she should do so.” We axe persuaded that the plaintiff’s evidence is sufficiently corroborated by the defendant’s evidence and his conduct to. sustain the court’s conclusion that the parties voluntarily lived entirely separate as asserted by the plaintiff, and that the judgment was properly awarded.

By the Court. — Judgment affirmed.