Porritt v. Porritt

• Decision Date: 12 May 1869
• Citation: 18 Mich. 420
• Court: Michigan Supreme Court
• Parties: Joseph Porritt v. Elizabeth Porritt

18 Mich. 420

Joseph Porritt v. Elizabeth Porritt

Supreme Court of Michigan

May 12, 1869

Heard May 6, 1869 [Syllabus Material]

Appeal in chancery, from Wayne circuit.

The bill in this cause was filed by complainant below, to obtain a divorce from defendant on the ground of desertion.

The case was heard on the pleadings and proofs, and the bill was dismissed.

The facts are stated in the opinion.

Decree of the court, dismissing the bill, affirmed, with costs.

Ward & Palmer, for complainant:

The complainant seeks a divorce on the ground of desertion by the defendant. She left the complainant on the 24th day of August, 1864, and on the 27th day of the same month commenced proceedings for a divorce from the bonds of matrimony. This court held that she left the defendant without justifiable cause, and denied the prayer of his bill: 16 Mich., p. 140.

Her desertion continued from the time she left the complainant till the 28th day of October, 1867, when he filed the bill in this suit.

The defendant, in her answer, alleges the same matters in defense of her desertion that she set forth in her bill as grounds for a divorce, and adds to the same, that before she left the complainant he accused her of attempting to poison him, and afterwards prosecuted her on the charge, and that on the trial of the same she was acquitted.

All the other matters set forth in the answer, even if this, which might have been litigated, could be excepted out, except the prosecution on the charge of poisoning, were passed upon in the previous suit, and found against her, and cannot now be again controverted by her or made available in her defense in this cause.

The position, then, in which the defendant stands is this: She left the complainant for none of the causes for which a divorce may be granted, and by that act was guilty of desertion: Butler v. Butler, 1 Parsons Penn., 329; Grove's Appeal, 1 Wright 443, 447; Cattison v Cattison, 10 Harris Pa., 275; Eshback v Eshback, 11 Id. 343; Vanleer v. Vanleer, 1 Id 211; Bishop on Marriage and Divorce, vol. 1, §§ 569-799.

And nothing occurred subsequently to break the continuity of the desertion.

E. C. Hinsdale, for defendant:

The complainant in his bill of complaint alleges that the defendant, his wife, has deserted him, and asks a divorce solely on this ground.

This desertion is denied by the answer, but this admits that a separation took place between the parties on the twenty-fourth day of August, A. D. 1864, and that the parties have not since lived together.

The evidence further shows that on the 27th day of August, A. D. 1864, the present defendant filed her bill of complaint against the present complainant for a divorce on other grounds; that the prayer of said bill was granted by the circuit court for the county of Wayne, in chancery, but on appeal the decree of said circuit court was reversed, and said bill was dismissed October 21, 1867.

The bill in this case was filed on the 28th day of October, A. D. 1867, or just one week after the former suit ended.

1. Upon the above state of facts we insist that the present bill cannot be maintained.

Desertion, as used in divorce law, is "the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification, either by the consent or wrongful conduct of the other:" 1 Bishop on Marriage and Divorce, § 776.

It involves the ceasing to cohabit, the intent to desert, and the want of justification.

In this case there was no "intent to desert." This cannot be inferred from the mere fact of separation: Ibid, § 784.

The defendant left the complainant under the belief that she had a good ground for a divorce from him, and immediately after the separation, she, in entire good faith, filed her bill for the purpose of obtaining a divorce. During the time of the pendency of that suit, cohabitation between the parties would have been highly improper, and therefore that time can form no part of the statutory period: 1 Bishop on Marriage and Divorce, §§ 801, 802; Marsh v. Marsh, 14 N. J. (1 Mc Carter), 315; Doyle v. Doyle, 26 Miss. 549.

2. The complainant's cruel conduct towards the defendant subsequent to the commencement of the former suit, effectually prevented any reconciliation between them, and was of itself a good cause for her remaining separated from her husband.

In September, 1864, he instituted criminal proceedings against her, in which he accused her of attempting to poison him. On this charge she was tried in September, 1865, and acquitted.

During the pendency of this criminal suit her separation from him was justifiable, and, from his conduct, his consent to such separation may be inferred. The year which elapsed between the commencement and end of this suit cannot, therefore, form a part of the statutory period.

After the acquittal of the defendant upon the criminal charge, the complainant cruelly persisted in his accusation of her criminality at different times and in the presence of different persons.

These accusations are acts of cruelty which would justify the defendant in separating from the complainant, even if there had been no suit for divorce pending: Gillinwater v. Gillinwater, 28 Mis. 60; Marker v. Marker, 11 N. J., 266; Hardin v. Hardin, 17 Ala. 250; Rutlidge v. Rutlidge, 55 Sneed (Tenn.), 55; Kimball v. Kimball, 13 N. H., 224.

The decree of the circuit court, dismissing the complainant's bill, should be affirmed.

OPINION

Graves J.:

This is a bill filed by the husband against the wife for a divorce, on the ground of desertion.

The suit was commenced on the 28th day of October, 1867, and it is alleged by the bill that the defendant deserted complainant on the 24th day of August, 1864, and had ever since lived separate and apart from him, and refused to live with him. The defendant, by her answer, admits that she separated from complainant on the 24th of August, 1864, and has ever since lived apart from him; but she denies the desertion stated in the bill. She insists that he was habitually drunk, and often very violent and abusive to her and that his language and...