Thompson v. Thompson

| Wis. | Oct 18, 1881

Orton, J.

The only question in this case is one of fact: whether the parties, as husband and wife, had “voluntarily lived entirely separate for the space of five years immediately preceding the commencement of the action.” There are two requirements in this cause of divorce: first, that the parties should live entirely separate for five years; second, that such separation should be mutually voluntary. There is no question raised as to the proof of the first requirement; but as to the sepond, it is insisted that the proof shows that her living separate from her husband, was not voluntary on the part of the wife. This cause of divorce does not require proof that the parties intended that such separation should be final or for life, but only that for the five years immediately preceding the commencement of the action it should be voluntary on the part of both. Eor the purpose of ascertaining whether the separation was voluntary for the whole time, it is important to consider the circumstances of its commencement, and what took place at that time. The wife was keeping a boardinghouse, and the husband, was boarding with her, paying her therefor, and both occupied the same room and bed. Two or three times before, the husband had left, and lived .for several months each time separate from the wife. In the summer of 1874, the alleged beginning of the five years’ separation, the husband again left the marriage bed and family room, and took a room with the wife’s consent, agreeing to pay her rent therefor, in another part of the house. There does not seem to have been any particular cause for separation except incompatibility and want of affection.

The husband testified that when he expressed his intention to separate from her at this time, his wife said, “if I went, I. could stay;” “ If you go away, you can’t return to these rooms again;” and that he said: “Very well, I will go.” The wife, on her examination in ehief, contradicted this evidence as to what she said, and testified that she objected to her husband leaving her rodms and bed, and that she tried to induce him to remain. But on her cross examination, after testifying in relation to a proposition made by her husband in 1876 to return to her rooms and bed, and her refusal, in answer to the question, “ What object had you in view in refusing him to come back to these rooms, if it was not that you never intended to live with him again? ” she said: “ I had got tired of it, coming and going; and when he went away from me, he said he never was coming back again.” In answer to the question, “You didn’t propose to let.him ever come back again? ” she said: “It was so.” I could not have him back.My daughter was at home with me, and I had no room for him.” In answer to the question, “Wasn’t that your intention, after he had made the statement, that you did not pro-, pose to let him?” she said: “Well, I didn’t let him, did I?” “ He put himself in that place.” In answer to the further question, “ Isn’t that the fact, that that was the object you had in view, and the reason why you would not let him come back after taking that room?” she said: “I don’t know exactly what you mean. I did not let him come back after taking that room. I have never done anything to try to get him back.” These very pertinent admissions of the wife, together with the fact that the husband, in 1876, proposed to resume his conjugal relations, and that she rejected the proposition in a manner clearly indicating a settled purpose on her part never to live with’ him again after he left her in 1874, very strongly confirm the testimony of the husband as to what was said and took place at the time of such separation, and is quite conclusive that such separation on her part was voluntary, and has so continued until this action was commenced.

Where the separation in the first place on the part of both the husband and the wife was clearly voluntary, and their continued separation for five years was without any evidence of any change of purpose, and under such circumstances as to evince an intention that it should so continue, although nothing -was said to indicate such intention, a sufficient cause of divorce on this ground is made out; and such was the case of Phillips v. Phillips, 22 Wis., 256" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/phillips-v-phillips-6599862?utm_source=webapp" opinion_id="6599862">22 Wis., 256, and we see no ground for questioning the decision in that case. In that case, however, it may be remarked, there was sufficient ground for divorce by the wilful desertion of the husband for the term of one year and more before the commencement of the. action.

By the Court.— The judgment of the circuit court is affirmed. -