Reed v. Reed

37 S.W. 230, 62 Ark. 611, 1896 Ark. LEXIS 222

• Court: Supreme Court of Arkansas
• Decided: October 10, 1896
• Status: Published

Opinion

Riddick, J.,

(after stating the facts). The only question in this case is whether the appellant wilfully deserted her husband, as alleged in his complaint. When a wife separates from her husband, and lives apart from him with his consent, this is not a ‘‘wilful desertion,” within the meaning of the statute. Nor is it necessary that such consent be expressly given. It may be implied from the words or acts of the husband which show that he consented to the separation. Cox v. Cox, 35 Mich. 451; Beller v. Beller, 50 Mich. 49; Thompson v. Thompson, 1 Swab. & T. 514; Rose v. Rose, 50 Mich. 92; 1 Nelson, Divorce, sec. 67, and cases cited; 1 Bishop, Marriage & Divorce, secs. 1671, 1690.

In this case the appellant, Henrietta Reed, testified that she left the residence of appellee and returned to her former home because appellant advised her to do so if she was not satisfied. The appellee, Reed, in his testimony, does not state or pretend that he objected to her leaving his home. When she spoke of leaving, he did not attempt to dissuade her, but, on the contrary, told her that he had the same team that brought her to his home, and it “could take her back.” With his consent it did take her back, the appellee himself assisting her by driving her cow and calf. He afterwards visited her, remained over night at times, and occupied the same bed with her. These facts are not denied. It is true that he testified that “he and appellant had not kept up the relationship of husband and wife since she moved away,” but he does not deny that he visited her after she moved away, that at times he remained over night, and on such occasions slept with her. His denial that they kept up “the relationship of husband and wife” seems to have been based on the belief that a common home was necessary for the existence of such a relationship, and this statement is only an expression of a conclusion he formed from the fact that they lived apart. Before their marriage he was a widower and she a widow, and each of them had children. Afterwards some disagreement as to the treatment of these children probably convinced each of them that it was better to live separately, and so, with his advice and assistance, she moved away. The friendly relations existing between them were disturbed very slightly, if at all, by this separation. He afterwards assisted her at times in trading and managing her stock. She wove cloth, and made clothing for him, for which he returned provisions for her family. He did not at any time raise any objection to her living apart from him, or make any request that she .return to him. Afterwards, when she offered to 'return, he told her not to do so. The testimony of the plaintiff himself convinces us that he consented to the separation of which he now complains, and his case has no foundation to rest upon. Nelson, Divorce, sec. 67.

When desertion condoned.

Even if it be conceded that the appellant was guilty of a wilful desertion, the evidence shows that such desertion was condoned by appellee. We do not hold that a husband whose wife had wilfully deserted him would, if he afterwards visited her and assisted in supporting her, necessarily lose his right to divorce or condone such desertion. Such acts might, under some circumstances, evince regret for her absence and a desire for her return, and serve to make more clear the fault of the wife in remaining away from his home. But, if he goes further, and continues to exercise the right of matrimonial intercourse upon such visits, he will be treated as having condoned the conduct of the wife, and the continuity of her desertion will be broken. Burk v. Burk, 21 W. Va. 445; Phelan v. Phelan, 135 Ill. 445; Nelson, Divorce, sec. 81. The appellant testified that the appellee continuec] to occupy the same bed with her when he visited her up to the 8th day of November, 1893. The appellee does not deny this statement, and, as he commenced his action in less than four months from that date, he had no grounds for a divorce. 1 Nelson, Divorce, sec. 81. In refusing to allow the appellant to return to his home when she offered to do so, the appellee was himself guilty of a wilful desertion, but, as such desertion had not existed for the statutory period, the appellant was not entitled to a divorce.

We would not disturb the finding of the chancellor on a mere preponderance of the evidence, but, being fully convinced that no cause for divorce is shown by either party, the judgment is reversed, and case dismissed at costs of appellee.

Battle, J., absent.