17 Or. 542 | Or. | 1889
This is a suit for a divorce. The amended complaint contains two causes of suit. Our attention will be directed only to the first cause specified.
The material part of the amended complaint is as follows: “That about five years ago plaintiff, with his said wife and children, moved from Jackson County to Crook County, in said state of Oregon, and that plaintiff ever since and now is a resident of Crook County; that in October, 1885, the defendant returned from Crook County to her former.home in Jackson County, and has ever since remained there; that ever since said last-mentioned date said defendant has willfully deserted the plaintiff, and has willfully remained away from him and their said home, and, though often requested by the plaintiff, has ever since said last-mentioned date persistently refused to return to the plaintiff or their said- home, or to longer cohabit with plaintiff thereat.”
These allegations were met by denials, the cause was referred, and much evidence taken on both, sides. Upon a trial in the court below, the suit was dismissed, and costs adjudged against the plaintiff from which decree this appeal was taken.
I. It appears from the evidence that these parties were
On this occasion, the plaintiff .told the defendant that she did not treat him,as a wife ought.to treat a husband, but she informed him that she treated -him better than •¡he deserved. The,plaintiff then returned to,his home in Crook County, the defendant remaining on her farm in .Sam’s Valley. Afterwards, the plaintiff came down again, and by this time it seems the estrangement between the parties was known outside of the family circle. A protracted meeting was in.progress at Grant’s Pass.conducted by Bevs.-Jones and Sails. Mr. Jones sent.for the plaintiff to come to church, who went without his wife. Jones told , him to go back , and bring her, as he thought he could assist them in getting together. -Plaintiff did .so. ■ Before going, however, plaintiff asked the defendant Jf she would not bo willing to go back up home .to Crook County. She said no;' she had a gp.od homeland she had no assurance if she .went but that she would have to come back, and the boys might not. want to take her-in. It was about this time that defendant said to plaintiff: “■We all have lost all confidence in you.” The plaintiff came down again,.and. asked the defendant to return to Crook County with him, which she did not do, but told him she had a good home where she. was, and that the society was very bad up in Crook. The next - time the -plaintiff came down he remained from October till March. By this time, serious business complications had arisen between the plaintiff and Horace Pelton, a son of the dp
Other evidence tends to prove that the defendant withdrew from the plaintiff, and ceased to cohabit with him, without any cause or reason so far as appears. Nor is there any satisfactory excuse in this record for the failure and refusal of the defendant to return with her husband, and reside with him in Crook County where he had established the home of the family. It is true she did not directly refuse in words, but she did it by acts, which were far more decisive, and she always treated the matter evasively when approached on the subject by the plaintiff.
Do these facts, so very briefly outlined, constitute willful desertion within the meaning of the statute making it a cause for a divorce ?
1 Bishop on Marriage and Divorce, section 776, says: “Desertion in divorce law is the voluntary separación of one of the married parties from the other, or the voluntary refusal to renew a suspended Cohabitation, without justification, either in the consent or wrongful conduct of the other.” In section 782 the same learned author says: “This question, as one of principle, is not without difficulty. Still if a party to the marriage should refuse to the other party whatever lawfully belongs in marriage alone, — refuse not from consideration of health, not from any other temporary considerations, but from alienation of affection, from perverted religious notions, or from any other cause resting permanently in the will, and not in physical inability, — the refusing party would thereby withdraw from whatever relation of marriage, distinguished from every other relation subsisting between
I think enough is shown by the plaintiff to constitute willful desertion within the statute, and for that reason the decree of the court below must be reversed, and a decree entered in this court allowing the plaintiff a divorce from the defendant, but upon the express condition that the plaintiff first release all claim.and interest in the wife*s lands by reason of said decree, and neither party to reeoyer cost against the other.
At this time no order will be made as to the custody qf the children., other than which ever party has their custody shall make no claim on the other for their support.
The court below will have power to make orders in relation to their care and custody as ■ occasion may require.