179 Ind. 8 | Ind. | 1912
Action by appellee against appellant, her husband, for support, by reason of alleged desertion, under the provisions of §7869 et seq. Burns 1908, §5132 R. S. 1881.
There was a judgment for appellee, from which appellant appealed to the Appellate Court, which has transferred the cause to this court under the provisions of §1394 Burns 1908, Acts 1901 p. 565, with the recommendation that the case of Stanbrough v. Stanbrough (1878), 60 Ind. 275, be overruled. From the opinion of the Appellate Court, in
The record shows that appellee actually left appellant, but the Appellate Court is of the opinion that the husband’s misconduct compelled appellee to leave him, and concludes that if the doctrine of constructive desertion be invoked appellant was guilty of deserting his wife, within the meaning of the statute.
The statute provides that “A married woman may obtain provision for the support of herself * * * : Where the husband shall have deserted his wife, * * without cause, not leaving her * * * sufficient provision for her * * * support.” §7869 Burns 1908, §5132 R. S. 1881.
In Stanbrough v. Stanbrough, supra, this court construed the act of 1857 (Acts 1857 p. 94, §§7876-7878 Burns 1908, §§5139-5141 R. S. 1881), which, in so far as the question of desertion or abandonment is concerned, is similar to the statute under which this action is prosecuted. In its opinion in that case the court used the following language: “Abandonment, in the sense in which it is used in the statute under which this proceeding was commenced, may be defined to be the act of wilfully leaving the wife, with the intention of causing a palpable separation between the parties, and implies an actual desertion of the wife by the husband. To show, therefore, that a wife had to leave her husband for cause, does not make out a case of abandonment by the husband, under this statute.”
It is held in many jurisdictions that such misconduct, however, must be such as, in itself, constitutes a ground for divorce. Lynch v. Lynch (1870), 33 Md. 328; Weigand v. Weigand (1887), 42 N. J. Eq. 699, 11 Atl. 113; Sowers’s Appeal (1879), 89 Pa. St. 173; 14 Cyc. 614.
Judgment reversed, with instructions to sustain appellant’s motion "for a new trial.
Note.—Reported in 100 N. E. 71. See, also, under (1) 21 Cyc., 1599; (2) 14 Cyc. 616; (6) 2 Cyc. 691. As to desertion as ground for a divorce, see 119 Am. St. 617. As to desertion by forcing spouse to leave marital home, see note in 29 L. R. A. (N. S.) 614. Upon the question of effect by one spouse to induce the other to return home as a condition of desertion by the latter, see note in 39 L. R. A. (N. S.) 1118. For a discussion of driving an innocent spouse from home as desertion warranting a divorce, see note in 21 Ann. Cas. 280.