As the defendant alleges intrinsic fraud motion in the cause is her proper remedy. Horne v. Edwards, ante, 622, and cases there cited.
Plaintiff’s original action was instituted under the provisions of O. S., 1659 (4) as amended. Except where the separation is in consequence of a criminal act committed by the defendant prior to such divorce proceedings, “a separation of husband and wife” as used in the statute means more than merely living apart. Business and other necessities sometimes require the husband to live at one place and the
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wife at another. This does not mean necessarily that there has been a separation within the meaning of the statute. The statute, express in terms and plain of meaning, is broad enough to include, and clearly does include, any kind of separation by which the marital association is severed, and which may be made the subject of further judicial investigation. It means the living asunder of a man and wife. It is a voluntary act, except in case of imprisonment for crime, and the separation must be with intent on the part of at least one of the parties to discontinue all of the marital privileges and responsibilities, or it must be due to the wrongful act of at least one of the parties, or by judicial decree.
Cooke v. Cooke,
The word “separation” is thus defined in Black’s Law Dictionary, 1073: “In Matrimonial Law it means a cessation of cohabitation by husband and wife by mutual agreement,” or in case of judicial separation “under decree of court.” To these our statute contemplates the addition of “separation” caused by desertion or abandonment or other wrongful act of the party sued.
Lee v. Lee,
It certainly was not intended that this statute should apply to cases where the separation was without fault on either side and involuntary (except in ease of imprisonment for crime) as in cases of incarceration in an asylum for the insane. It cannot be contended that the years spent by the wife in the hospital for the insane was desertion or a separation by mutual consent, or even voluntary, much less a wrongful act on her part.
Brown v. Brown,
The court below was in error in finding that there was no evidence that plaintiff has practiced any fraud either upon the court or upon the defendant. If, as her testimony tends to show, the defendant was on 1 August, 1935 (the day of the alleged separation) and for more than twelve months thereafter non compos there has been no two-year separation between the plaintiff and the defendant within the meaning of the statute. Under these conditions she was incapable of forming an intent to discontinue the marital privileges and responsibilities or of voluntarily assenting to a separation.
If, as the defendant admits in his affidavit, he has recognized his marital responsibilities and voluntarily contributed to the support of the defendant during the full period he alleges that he and his wife were living apart, his conduct in so doing indicates that he recognized his responsibilities as husband and tends to refute the suggestion of an intention on his part to voluntarily assent to a legal separation. It follows that if he, with knowledge that at the beginning and during the major portion of the period he alleges that he and his wife were living *689 separate and apart, she was non compos and had a guardian duly appointed by the court, offered testimony that there had been a voluntary separation, or a separation due to the wrong of the defendant, for a period of two years next prior to the institution of the action, this constituted a fraud and imposition upon the court and the defendant. The same conclusion follows if during said period he, by contributing to her support, continued the relationship of husband and wife.
Furthermore, it is well established in this Court that the affidavit the statute requires in connection with a complaint for divorce is jurisdictional.
Holloman v. Holloman,
There should be specific findings of fact made as to the mental status of the defendant at the beginning and during the earlier part of the two years plaintiff alleges he and his wife lived separate and apart, and as to whether the- plaintiff knowingly made a false affidavit in respect thereto, or knowingly offered false testimony as to the legal separation of plaintiff and defendant. This would include a finding as to whether in fact she had been adjudged insane, and as to whether plaintiff had knowledge of such fact at the time he made the statutory affidavit, and at the time he offered evidence to support the third issue submitted to the jury. Adjudication- of the rights of the parties upon defendant’s motion should be made after consideration of the facts thus found.
It was suggested here that the plaintiff has remarried and that the rights of his second wife, an innocent party, have intervened. If the facts are as alleged by the defendant she is equally innocent. One must suffer. The facts as they are finally made to appear must determine which one of the two, if either, is to be the victim. We could not hold that a first wife, who is innocent of any wrongdoing and who, due to mental incapacity, has not voluntarily assented to a separation, against whom a decree of divorce has been entered through the wrong of the husband, is any less innocent than the second wife who entered into the contract of marriage believing the divorce decree to be valid.
The cause is remanded for further proceedings in accord with this opinion.
Error and remanded.