55 W. Va. 198 | W. Va. | 1904
This is an appeal from a decree of the circuit court of Mason County granting an absolute divorce to Smith Tillis from his wife, Mary A. D. Tillis, upon a bill filed by him charging her with abandonment, from which decree she has appealed.
It is at once enough to reverse the decree to say that the' evidence fails to show a material element, that is, willful abandonment. It is-of the very core of such a case to show, not merely that the wife went away from home, as that is only one element or circumstance of the case, but it must be shown that she ceased cohabitation with willful design and intent to desert her hus
He says that they lived together in Mason County, but had not lived together for four years, and being asked why, he answered: “Because I considered it an utter impossibility on account of the disposition and temper of the woman to live together agreeably.” The question was then propounded, “Do I understand by your answer that she has abandoned and deserted you?” He answered, “Yes, sir. She left Mason County in November, 1898, and moved her goods and chattels to Jackson County.”
Now, this shows rather, from his own lips, that he abandoned her, than that she abandoned him. At any rate it utterly fails to show willful, intentional abandonment, giving it the most favorable construction for the plaintiff. His evidence shows merely his assertion that his wife had abandoned him, his mere opinion of the character of her actions, without facts or circumstances to explain why she went to Jackson County or give cast to her act in so doing. Why she left he does not say, nor for what cause. Perhaps his wrong caused her to leave. He ought to show that she did wrong in leaving, -and make her act unjustifiable and vindicate himself from blame. His failure as a witness to do so is significant. There is absolutely no evidence given by the plaintiff to show willful design to desert. His case signally fails to show this cardinal element. It does -show that she left home and moved to Jackson County and there resided; it does show a cessation of matrimonial cohabitation, but willful abandonment is not shown, and that is the very cause on which alone the statute grants the divorce. The law and moral and religious sentiment of the country do not favor divorce, and as Judge JOHNSON said in Burle v. Burle, “The bonds of matrimony should never be dissolved, unless for the most cogent legal reasons made clearly to appear.” Full proof is required. 2 Bishop
Reversed.