162 P. 142 | Cal. Ct. App. | 1916
Plaintiff brought this action to obtain a decree of divorce upon the ground of desertion. Defendant answered, denying the alleged desertion, and as a further defense, and by way of recrimination, set forth a cause of action against plaintiff based upon his alleged willful neglect and extreme cruelty.
Upon trial of the action the court found the allegations of the complaint true, and that the matters affirmatively pleaded in defendant's answer as a bar to plaintiff's cause of action were untrue. An interlocutory decree for plaintiff followed. The appeal is prosecuted by defendant from an order of court denying her motion for a new trial.
Among other grounds upon which appellant asks for a reversal is the contention that the evidence is insufficient to support the finding to the effect that on October 15, 1911, defendant willfully and without cause deserted and abandoned plaintiff against his will and without his consent, and ever since saiddate has lived and still continues to live separate and apart from plaintiff, against his will and without his consent.
It may be conceded that the separation of defendant from plaintiff on October 15, 1911, was with the intent to desert him without just cause and against his consent. Such fact, however, does not entitle plaintiff to a decree of divorce, since as provided in section 107 of the Civil Code, the status existing at the time of the desertion must continue for a period of one whole year. Separation by consent is not sufficient to constitute desertion. (Civ. Code, sec. 99) During the entire period the status must be without the consent of the deserted spouse. "It continues only so long as there is a want of consent to the separation on the part of the deserted party." (McMullin v. McMullin,
Respondent insists that the formal written agreement, duly executed by the parties, should be deemed invalid as an agreement of separation, for the reason that defendant did not *118 intend to sign a contract of separation and did not understand its terms when she executed the same; and likewise insists that plaintiff did not understand its purport when he executed it, and therefore since the minds of the parties never met, the document constituted no valid contract between them. No claim is made that the signature of either party to the instrument was obtained by fraud, duress, or undue influence; nor is reformation thereof sought for mutual mistake. So far as appears from the record, they signed it freely and voluntarily, and it is unnecessary to cite authorities in support of the doctrine that under such circumstances the parties to an instrument must be deemed bound by the plain import of the language used.
For the reasons given, the order denying defendant's motion for a new trial is reversed.
Conrey, P. J., and James, J., concurred.