LaFlamme v. LaFlamme

96 N.E. 62, 210 Mass. 156, 1911 Mass. LEXIS 1020

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1911
• Status: Published

Opinion

Sheldon, J.

We must take it that no difficulty arose in this case under the provisions of R. L. c. 152, §§ 4, 6. The only question is whether upon the findings of the judge it ought to have been ruled as matter of law that the libel cannot be maintained. We are of opinion that this ruling properly was made. It is true, as was argued in behalf of the libellant, that in December, 1909, he had become entitled to a divorce from his wife on the ground of her desertion. Cargill v. Cargill, 1 Sw. & Tr. 235. He did not however attempt to avail himself of this right, but visited her at the house in which she was living, at Milford in this Commonwealth, and remained there' with her for about four days. During this period, it is found that “they cohabited together as man and wife.” This was a complete renewal in all respects of the marriage relation between them. It was not simply that they occupied the same room and bed, although this also was found. Accordingly we need not consider whether the latter fact alone, unexplained, would not import as a necessary inference the complete cohabitation as man and wife which has been found. The wife’s desertion ceased and he again received her as his wife when they thus resumed the matrimonial relations that had been interrupted in 1906 by her desertion. If afterwards, no matter how soon, she deserted him anew, this was merely a new act of misconduct on her part. But it is not barely “ utter desertion continued for three consecutive years ” that is a ground for divorce under our statute; the three consecutive years must have been “ next prior to the filing of the libel.” B. L. c. 152, § 1. Here, the parties lived together as husband and wife in December of 1909, though only for four days; and so there was no desertion for the “ three consecutive years next prior to the filing of the libel.” For this reason, no cause of divorce was shown at the hearing, and the ruling made was correct. Gaillard v. Gaillard, 23 Miss. 152.

It cannot be said that the husband’s conduct in resuming matrimonial relations with his wife was merely a condonation or conditional forgiveness of her previous misconduct; and that her subsequent refusal to accompany or follow him to his home in Canada was the beginning of a new desertion by her (Franklin v. Franklin, 190 Mass. 349), which avoided the effect of his condo-nation and so entitled him to rest his libel upon her first desertian. If we assume that this reasoning would otherwise be correct, yet we have not here a case of mere condonation, although it doubtless included that element. It was voluntary action on the part of the libellant,, which by putting an end to the earlier desertion made it impossible to say that any desertion had continued for the statutory period up to the filing of this libel. It was an absolute removal of the existing cause of divorce, and the fact that it involved also a forgiveness of the past wrong that had been done cannot diminish its full effect.

The cases of Danforth v. Danforth, 88 Maine, 120, and Kennedy v. Kennedy, 87 Ill. 250, turned on the fact that in them no complete renewal of matrimonial cohabitation was found. It is not necessary to consider whether, under the same facts, we should be inclined to follow those decisions. See Woolfolk v. Woolfolk, 96 Ky. 657; Burk v. Burk, 21 W. Va. 445; Reed v. Reed, 62 Ark. 611; Holmes v. Holmes, 44 Mich. 555.

Under the terms of the report, the libel must be dismissed.

So ordered.