159 Ga. 332 | Ga. | 1924
Lead Opinion
Charles G-. Wilkinson filed a libel for divorce against Irene S. Wilkinson, alleging that she was a non-resident of the State, and basing his petition upon two grounds, desertion for over the term of three years, and cruel treatment. The allegations of the petition as to desertion were as follows: “That petitioner and the said defendant lived together as husband and wife until on or about the 15th day of September, 1918, when on said last named date, and more than three years before the filing of this petition, the said defendant without just cause wilfully deserted your petitioner and from the time of said desertion continuously persisted in the same and resided separate and apart from him; that the desertion aforesaid consists in the following acts of omission and commission: while petitioner and his said wife resided under the same roof, from said last-mentioned date, to wit, on or about September 15, 1918, they occupied separate bedrooms, and said defendant has persistently and continuously declined to accord to petitioner his conjugal rights; that during the period aforesaid, to wit, for more than three years prior to the filing of this petition, the said defendant has wilfully and persistently and without justification denied to petitioner his conjugal rights, so that while petitioner and the said defendant had resided up until about the 4th day of January, 1922, under the same roof, they have in fact and in truth been absolutely separated, owing to the desertion of petitioner by said defendant, as herein set out. That for the past twenty months, to wit, since the 4th day of January, 1922, petitioner and defendant have not resided under the same roof, defendant having removed to and being at the present time making her home in Jacksonville, Florida. That plaintiff has been without fault in the premises, has been ready and willing and able at all times to perform all his duties towards his said wife, and has given her no just cause for said desertion.”
The Civil Code of 1910, § 2945 (7), provides that “Wilful and continued desertion by either of the parties for the term of three years” shall be sufficient to authorize the granting of a total divorce. It is insisted by the plaintiff in error that the allegations in the petition do not constitute desertion within the meaning of the code section above cited, as they do not contain any allegation to the-
We are of the opinion that where the petition alleges that the defendant has persistently and continuously declined to accord plaintiff his conjugal rights, and that for more than, three years prior to the filing of the petition the defendant wilfully and persistently and without justification denied to petitioner his conjugal rights, etc., these allegations are sufficient to withstand a demurrer which attacks the petition on the ground that it is not alleged that the denial to plaintiff of his conjugal rights was “with
Again, in Lloyd’s Law of Divorce, 170, it is said: “Bhere must be a wilful and deliberate intention, on the part of the party leaving the other, not only to leave, but to cease cohabitation permanently” (citing 43 Conn. 313; 58 How. Pr. 278; 27 N. J. Eq. 328); “and this intent must be followed by actual cessation of
In 4 Field’s Briefs, §§ 218, 221, also cited in the Whitfield case, it is said: “Desertion or abandonment is usually a ground for divorce, either total or partial, if continued for a period usually fixed by statute. It is an entire and absolute breaking-off of matrimonial cohabitation, and an intention by one party to desert the other, without the consent of the injured party, and for just cause” (citing Bailey v. Bailey, 21 Gratt. (Va.), 43; Morrison v. Morrison, 20 Cal. 431). “The mere refusal of sexual or matrimonial intercourse is not a legal desertion; but a refusal to cohabit, or a refusal to live together, although the offending party may live in the same neighborhood or even in the same house, would usually be legal desertion.” Authorities cited. “If the personal security or respect of either party requires a separation, and a departure of the other, that might constitute a desertion of the party in fault, making such separation necessary on the part of the other. Thus, if the wife leaves her husband by reason of actual or threatened violence of her person, or even by his introduction to his home of a paramour, this would justify the wife in departing and refusing cohabitation; and it has been held that this would be a legal desertion on the part of the husband, at least in an action for necessaries furnished the wife under such circumstances: . . If the husband wilfully refuses the right of the wife to his companionship, the enjoyment and protection of his home, and especially if he abandons all matrimonial intercourse without her consent, and against her express desire, this is legal desertion for which she would be entitled to a decree of divorce, where this constitutes a ground for it.” In Brown on Div. & Alimony, 142, it is said:
It will be observed from the quotations made from the authorities cited in the Whitfield case, which are supported by authorities from a number of outside jurisdictions, that they are practically uniform in holding that the allegations of the petition must conform to the requirements of the statute, where there is one. It will also be observed that there is nothing in these quotations to authorize the use of the identical language in the Whitfield case, viz., “to deny her husband all his conjugal rights with the intention to cast him off as a husband completely and forever.” It'will be further observed that in the Whitfield case the husband testified: “I was married to the libelee in 1869, lived with her up to 1876. We had four children. She never lived with me afterwards. She deserted and wilfully abandoned me ever thereafter, and has persistently done so against my will and oft-repeated remonstrances, and without any reason or cause, or fault of myself, so far as I know or have been informed. She'continued to live in the same house in which we had previously lived, a home inherited by me from my grandfather, but would never recognize me as her husband. I entreated her, for the sake of ourselves as well as our children, to live with me as before, but she would not, saying more than once that she would have her throat cut from ear to ear before she would do so. I went away from home and left her there, and worked about for my living; went and lived awhile in Bibb County, and about one month ago I returned to' my home where she was living, and occupied one of the rooms; but she did not then recognize me as her husband, but barred the doors against me. I neither ate nor slept nor had any social conversation with her. I did not eat with her at' my table, but purchased my own provisions, cooked them, and ate at my own table. I went back there at the request of and to see my children. I had no other home to go to. The separation was wholly against my will, and without any fault on my part.” The trial court in that case granted a nonsuit, and this court reversed that judgment. This case is here upon petition
The allegations as to cruel treatment are as follows: “that continuously up until the time of their final separation, defendant abused, nagged at, and villified petitioner; that she persisted in this conduct towards petitioner, to such an extent that this caused petitioner’s peace of mind and nervous system to become greatly impaired, all of which reacted upon petitioner’s general health, to such an extent as to involve and impair his health, and caused him to fear and have reasonable apprehension of danger to his life, limb, and health. That this cruel treatment of himself by his said wife did actually impair and injure his health and physical well-being,” etc. In answer to the general and special demurrers the plaintiff amended his petition by adding the following to paragraph 8 of the original petition, which alleged cruel treatment: “That the abuse and villification of petitioner consisted in continuously calling him names, referring to him as a ‘beast,’ and his conduct as ‘beastly’; in continuously provoking quarrels with petitioner whenever he entered the home; making cutting and sarcastic remarks to him, and quarreling to such an extent that petitioner was forced to leave, in order to prevent further scenes; that in addition, in March of the year 1921, when petitioner and defendant were called to Baltimore because of the illness of their son, petitioner arrived in Baltimore ahead of defendant, and engaged a room for her; that on her arrival defendant immediately accused petitioner of having had a woman in said room, registered under the name of defendant, and that said woman was there for immoral purposes, all of which was untrue. Further, that since November, 1921, defendant has continuously had private detectives and spies to dog and follow petitioner, said detectives and spies working with and under the direction of one L. B. Cheatham, the husband of a niece of defendant; that petitioner discovered this fact early, but that same was persisted in, and was a constant cause of annoyance to petitioner, and caused him mental pain and suffering, all of which reacted on petitioner’s health and well-being, and caused him to have reasonable apprehension of injury to his health and life.” After the amendment to the petition the defendant renewed her
Under § 2946 of the Civil Code óf 1910, the jury in their discretion may grant either a total or partial divorce on the ground of cruel treatment. The kind of cruel treatment which is a ground for, and will authorize a total divorce in this State “is the wilful infliction of pain-, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health.” Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878); Brown v. Brown, 129 Ga. 246 (58 S. E. 825); Cureton v. Cureton, 132 Ga. 745 (65 S. E. 65); Stoner v. Stoner, 134 Ga. 368 (67 S. E. 1030); Miller v. Miller, 139 Ga. 282 (77 S. E. 21); Ford v. Ford, 146 Ga. 164 (91 S. E. 42); Pierce v. Pierce, 145 Ga. 886 (89 S. E. 1045). Under the allegations of the petition as amended, we are of the opinion that the petition alleged such acts of cruel treatment as, under our law, will authorize a total -divorce. The learned trial judge said: “From the days of Socrates and Xantippe, men and women have known what is meant by nagging, although philology can not define it or legal chemistry resolve it into its elements. Humor can not soften or wit divert it. Prayers avail nothing, and threats are idle. Soft words but increase its velocity, and harsh ones its violence. Darkness has for it no terrors, and the long hours of the night draw no drapery of the couch around it. The chamber where love and peace should dwell becomes an inferno, driving the poor man to the saloon, the rich one to the club, and both to the arms of the harlot. It takes the sparkle out of the wine of life, and turns at night into ashes, the fruits of the labor of the day.” He might have added the words of Solomon that “It is better to dwell in the corner of the housetop, than with a brawling woman and in a wide house.” Proverbs, 25: 24.
It will be observed from reading the petition that it is alleged that continuously until the time of their final separation defendant abused, nagged at, and villified the plaintiff, .that the defendant persisted in this conduct towards plaintiff to such an extent that this caused petitioner’s peace of mind and nervous system to become
In Myrick v. Myrick, 67 Ga. 771, 778, it was said by Lyon, J.: “Cruel treatment, or cruelty in the broad and unrestricted sense in which it is used in our statute, is any act intended to torment, vex, or .afflict, or which actually afflicts or torments without necessity, or any act of inhumanity, wrong, oppression, or injustice;
Judgment affirmed.
Dissenting Opinion
dissenting. The petition for divorce undertakes to allege two grounds, desertion and cruel treatment. It is alleged that the three years desertion is made up, in part, by the wife living separately and apart from her husband, that is, not under the same roof, and the other part of the three years by her refusal to accord to the husband while living in the same house his “conjugal rights.” The petition alleges-that the desertion was wilful and continued for a period of three years. If there were no facts given to show that the desertion was not actual, such as is ordinarily understood by the term, the petition would be sufficient in this respect to withstand a general demurrer. In other words, when a petition alleges wilful and continued desertion for a period of three years, nothing more appearing, it is to be understood that the desertion means living separate and apart, not under the same roof; but the petition shows that desertion of that character was not continued for. a period of three years, and that it was necessary to make up the three years by alleging facts which were deemed in law to amount also to desertion, so that when the two periods were added together they would amount to three years wilful and continued desertion. The question arises, therefore, because of the demurrer to the petition, whether an allegation that the wife “has persistently and. continually declined to accord to petitioner his conjugal rights,” without more, amounts in law to an allegation of such desertion as will aFord ground for a divorce. The phrase