Atkinson v. Atkinson

• Decision Date: 23 October 1885
• Citation: 25 N.W. 284,67 Iowa 364
• Parties: ATKINSON v. ATKINSON.
• Court: Iowa Supreme Court

67 Iowa 364

25 N.W. 284

ATKINSON

v.ATKINSON.

Supreme Court of Iowa.

Filed October 23, 1885.

Appeal from Polk circuit court.

This is an action for divorce upon the alleged ground that the defendant willfully deserted the plaintiff, and continued to absent herself from him, without any reasonable cause, for the period of two years next preceding the commencement of the suit. There was an answer denying the alleged desertion, and a cross-bill for a divorce upon account of cruel and inhuman treatment. The circuit court granted a divorce upon the petition of the plaintiff, and dismissed the cross-petition, and decreed that the plaintiff should pay to the defendant a certain sum of money as alimony. Defendant appeals.Wright, Cummins & Wright, for appellant, Elizabeth Atkinson.

Nourse & Kauffman, for appellee, M. A. Atkinson.

ROTHROCK, J.

1. The parties were married in the state of California in the year 1877. Before their marriage the plaintiff was a resident of the city of Des Moines, in this state, and the defendant resided with her parents in California. Soon after the marriage the parties took up their residence in the city of Des Moines. The father of the defendant presented her with a dwelling-house in which they lived part of the time, and at other times they resided with the family of the plaintiff's mother, or in rooms to themselves in her house. Two children were born to the parties, both of whom are still living. It is not claimed by the plaintiff that the defendant was guilty of any conduct which could be made the foundation of a separation or divorce until the thirtieth day of June, 1881. On that day the defendant and the plaintiff's mother had an altercation in which the defendant claims that she was inhumanly assaulted and beaten. The parties were then living in rooms in the plaintiff's mother's house. That the defendant was assaulted by plaintiff's mother on that occasion is not disputed. The mother admitted in her testimony upon the trial that she struck the defendant “across the jaw with a hair-brush.” The defendant immediately took her two children and left the house, went to the house of a neighbor, and sent for her husband. From that time until the seventh of July, 1881, she and her two children remained at the house of Mrs. Durant, a neighbor and friend. On the seventh day of July, 1881, she left Des Moines with her two children, and went to her father's home in San Francisco, where she has ever since remained. This action was commenced on the third day of July, 1883, and to justify a decree of divorce on the ground of willful desertion it is necessary that the plaintiff should show that he was willfully deserted by the defendant on the third day of July, 1881, four days before the defendant's departure for California.

The evidence shows quite satisfactorily to our minds, as we read it in the abstract and amended abstract, that for some time prior to the thirtieth of June the defendant had been contemplating a visit to California with her children. In anticipation of this visit a part of the household furniture was sold and housekeeping was discontinued, or was carried on without a full equipment of household goods. It does not appear that the defendant at any time abandoned the projected visit. On the thirtieth day of June she announced her purpose to go to California as soon as she could do so. The plaintiff objected to this and refused to stay at Mrs. Durant's house, and insisted in treating the separation as a desertion, and on the fifth day of July, 1881, before the defendant left Des Moines with her children, he sent the following telegram to the defendant's father at San Francisco: “Lizzie left my bed and board July 1st. Answer at once.”

The material, and indeed the pivotal, question in the case is, did the defendant willfully desert the plaintiff when she went to the house of Mrs. Durant with the avowed purpose of going to California as soon as convenient? Or, in other words, did she then intend to separate herself permanently from the plaintiff? The evidence on this question is quite voluminous, and we cannot even give an abstract of it in this opinion. It consists of a...