Besch v. Besch

• Decision Date: 01 January 1864
• Citation: 27 Tex. 390
• Parties: ODELIA BESCH v. CHARLES BESCH.
• Court: Texas Supreme Court

27 Tex. 390

ODELIA BESCH

v.CHARLES BESCH.

Supreme Court of Texas.

1864.

The fact that a husband had left his wife for three years with the intention of abandonment is made by the statute (O. & W. Dig., art. 608) a specific cause for divorce; and it is immaterial what were the circumstances attending the separation, provided the wife is in no manner chargeable with it, either by act or consent.

That the separation was not accompanied by wanton acts of outrage or cruelty on the part of the husband toward the wife, is of no importance.

It is the sole fact of his separation from her for the requisite length of time, with the continuing intention not to perform his matrimonial obligations, which entitles her to a divorce.

The mere fact, however, of absence or of separation of the spouses for three years, does not authorize a decree of divorce, nor necessarily lead to the conclusion that there was the intention of abandonment.

The ruling in Hare v. Hare (10 Tex., 355) cited and approved. The plaintiff must state such facts as show that the abandonment by the defendant was voluntary, or without sufficient cause, and was consequently the offensive desertion contemplated by the statute.

That the absence or separation was with the intention of abandonment, may be established as well by circumstances as by direct evidence.

The plaintiff having proved a voluntary departure by the defendant from his wife, the plaintiff, and his continued absence for more than three years without communicating with her: Held, that such facts, in the absence of countervailing circumstances or proof, would authorize a jury to find the intention of abandonment; and that it was error to instruct the jury to find against the plaintiff on the ground that her evidence was insufficient.

APPEAL from Colorado. Tried below before the Hon. G. W. Smith.

On the 2d of April, 1859, the appellant filed her petition against the defendant, her husband, charging his voluntary abandonment of the plaintiff for more than three years. Upon affidavit of the plaintiff that the defendant was a non-resident of the state, service of the citation was had by publication.

No appearance was entered or defense made by the defendant.

On the hearing at the fall term, 1859, the plaintiff proved by her brother that she was married to the defendant in July, 1855; that the defendant and plaintiff lived together as man and wife until December of the same year, during which time the plaintiff had in every respect discharged her duty as a kind, faithful and affectionate wife. That at the latter date the defendant left, saying that he was going to Gonzales, telling all, including the witness, good-bye, and shaking hands with them; that he did not say why he was going, nor when he would return; that defendant, plaintiff and witness all lived with the father of plaintiff and witness. That witness knew of no reason whatever for the defendant's leaving; that defendant assigned none, and he and his wife, the plaintiff, had no quarrel, altercation or difficulty. That defendant had been gone ever since his departure in December, 1855, and had never communicated in any manner with the plaintiff, who,...