Baker v. Baker

• Decision Date: 08 February 1921
• Citation: 195 P. 347,99 Or. 213
• Parties: BAKER v. BAKER.
• Court: Oregon Supreme Court

195 P. 347

99 Or. 213

BAKER v. BAKER.

Supreme Court of Oregon

February 8, 1921

In Banc.

Appeal from Circuit Court, Marion County; Geo. G. Bingham, Judge.

Suit for divorce by Mary A. Baker against Francis M. Baker. From decree dismissing the suit, plaintiff appeals. Reversed, and decree granting the divorce entered.

This is a suit for a decree of divorce, the complaint being in the usual form and charging desertion. The defendant made default. The district attorney, appeared upon the trial representing the state, and there was a decree dismissing the suit, and plaintiff appeals.

S. T Richardson, of Salem, and J. E. Hosmer, of Silverton, for appellant.

Jas. G Heltzel, Dist. Atty., of Salem, for the State.

BENSON J.

The trial court dismissed the suit for the reason that, in its judgment, the evidence failed to establish statutory desertion.

The evidence discloses the following facts: The defendant left the plaintiff on June 5, 1919, without making any statement as to his reasons for abandoning her. He took their son with him. He returned sometime in the autumn of the same year, at which time the plaintiff let him have $750. He did not remain long, and again went to California, but again he returned on Christmas day of the same year, bringing the son with him. Plaintiff was then the owner of a building in Silverton which was suitable for a photograph studio, and about January 1, 1920, he there undertook to carry on his regular business, that of a photographer, which was continued until July 3, 1920, at which time he again disappeared taking the son with him During the period from Christmas, 1919, to July 3, 1920, the family lived under the same roof, eating their meals together, but occupying different sleeping apartments. While the evidence upon the subject is vague and unsatisfactory, it may be deduced therefrom that at no time after defendant's first departure in June, 1919, did plaintiff and defendant resume marital intercourse, and that this state of affairs was against the will of the plaintiff and was maintained over her protest.

Plaintiff contends that cessation of marital intercourse for the term of one year, coupled with the intent to abandon the wife, against her will, constitutes desertion, even though they reside under the same roof. This presents the sole question for our consideration upon this appeal.

There is a conflict of opinion in the authorities upon this subject, the appellate courts of a considerable number of states following the rule of the early ecclesiastical courts which, while requiring the offending party to return and live with the plaintiff, never undertook to compel the granting of sexual intercourse. The states which follow this rule have held that a willful denial of marital intercourse, however long continued, does not constitute desertion. Prall v. Prall, 58 Fla. 496, 50 So. 867 26 L. R. A. (N. S.) 577; Fritz v. Fritz, 138 Ill. 436, 28 N.E. 1058, 14 L. R. A. 685, 32 Am. St. Rep. 156; Pfannebecker v. Pfannebecker, 133 Iowa, 425, 110 N.W. 618, 119 Am. St. Rep. 608, 12 Ann. Cas. 543; Stewart v. Stewart, 78 Me. 548, 7 A. 473, 57 Am. Rep. 822; Southwick v....