Black v. Black

• Citation: 228 P. 889,48 Nev. 220
• Decision Date: 02 October 1924
• Docket Number: 2621. [a1]
• Parties: BLACK v. BLACK.
• Court: Supreme Court of Nevada

228 P. 889

48 Nev. 220

BLACK v. BLACK.

No. 2621. ^[a1]

Supreme Court of Nevada

October 2, 1924

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Suit by Lillian Fahey Black against Edwin Gregory Black. Decree for plaintiff, and defendant appeals. Affirmed.

See also, 221 P. 239.

James D. Finch, of Reno, for appellant.

Ayres & Gardiner, of Reno, for respondent.

DUCKER C.J.

A decree was granted by the trial court in this action in favor of the respondent dissolving the bonds of matrimony existing between the parties, and awarding the care and custody of the minor children to the former. This appeal is taken from the decree and the order denying a motion for a new trial.

Respondent was plaintiff in the court below. Her complaint sets out the jurisdictional facts, and two causes of action are alleged in it, to wit, failure to provide and extreme cruelty. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action having been overruled, the appellant answered denying and admitting certain allegations, pleading extreme cruelty as a recriminatory defense, and as grounds for a divorce setting up willful desertion in what is designated a separate cause of action and counterclaim and cross-complaint. The decree was granted to respondent on the grounds of extreme cruelty alleged in the complaint as follows:

"That during all of said period from December, 1920, to March 29, 1921, defendant was, without cause or provocation, jealous of plaintiff, and in pursuance of such jealousy continually suspected her of secretly keeping company and going about with men, went around to her friends and made inquiries concerning her conduct and relations with men, inquired of the little boy of plaintiff and defendant concerning his mother's conduct with men, continually accused plaintiff of kissing men, kept her under surveillance and a complete espionage; upon one occasion even complained to a stranger whose seat by accident happened to be next to plaintiff in a street car and forbade said stranger to sit next to plaintiff, and thereby caused plaintiff great embarrassment in the presence of several persons upon said street car, all of which caused plaintiff great embarrassment, humiliation, and mental suffering.

That on March 28, 1921, defendant sent from Washington, D. C., to the father of plaintiff in San Francisco, Cal., a telegram which said: 'Trouble home. Have evidence. Wire authority to put W. out.' 'W' in said telegram referred to a certain gentleman, who with his wife and family were tenants of a portion of the house of plaintiff's father. Said accusations in said telegram were false and without truth or foundation whatsoever.

On the same day, March 28, 1921, defendant wrote to plaintiff's father a letter in which he accused plaintiff of kissing the said tenant and of being unduly familiar with him, all of which said accusations were false and without foundation. On the same day, in the presence of plaintiff and of the wife of said 'W.,' defendant did quarrel with said 'W.' and did accuse him of kissing the plaintiff, all of which caused plaintiff great embarrassment, humiliation, and mental suffering. That said acts of extreme cruelty constituted but a modicum of a long line and continual and systematic course of unkind treatment and that the same, together with a long line and systematic course of similar unkind acts and treatment, caused plaintiff great and grievous physical and mental pain and suffering, seriously affected her health, destroyed her happiness, frustrated the objects and purposes of the marriage, and by reason thereof she ceased to cohabit with defendant, and on March 29, 1921, severed all relations with him and never since said date has lived or cohabited with him."

Appellant contends that the allegations as above set forth do not constitute a cause of action, but the question is not discussed. We think that a cause of action for extreme cruelty is sufficiently alleged. It is insisted that the evidence is insufficient to support the charge and finding of extreme cruelty. We see no necessity for setting forth the evidence, but, having reviewed and considered it carefully, are of the opinion that there is substantial evidence to sustain the findings. It may be remarked that the evidence is not strong, but it tends to prove the cruelty charged. Matters of conflict in the evidence and the credibility of the witnesses argued by counsel for appellant in his brief and before this court in his oral presentation of the case on appeal were within the province of the trial court, and we cannot say upon all of the evidence that a wrong conclusion was reached. There is also substantial evidence to support the finding of the trial court that appellant's recriminatory defense of extreme cruelty set up as a bar to the wife's right to a divorce was not true. To detail and comment on the evidence bearing upon this issue would be a work of supererogation and unnecessarily extend this opinion.

The trial court found that the plaintiff did not desert defendant, and in this regard it is contended that the evidence of willful desertion as alleged in his separate cause of action, counterclaim, and cross-complaint, is without conflict. The contention of willful desertion is twofold. It is insisted that she deserted him when she left their home in New Orleans, La., on August 8, 1917, and went to the home of her parents in Washington, D. C.; and that she deserted him by abstaining from all marital intercourse with him after the birth of their youngest child on June 29, 1917. As to the first branch of this question there is evidence tending strongly to show that she left their home at that time and went to the home of her parents with the consent of her husband. The trial court was therefore justified in concluding that there was no desertion in this respect. The evidence is, however, without conflict as to the cessation of marital intercourse after the birth of the youngest child. The appellant asserted this fact in his deposition read on the trial of the case, and the respondent admitted it. In this respect she testified as follows:

"Q. Did you deny him relations from the time of the birth of your daughter? A. I did.

Q. Why did you deny him? A. Well, there were many reasons.

Q. What were they? A. Well, for one reason I had no love for the man. I had lost respect for him for several things that he did that I can't tell in court. They were too terrible."

We thus have presented for determination the question whether the refusal of a wife to have marital intercourse with her husband for a period of more than one year constitutes willful desertion under the statute. Much might be said in favor of the continual refusal of sexual intercourse, when health and physical condition do not make such refusal imperative, being made a ground of divorce; but we cannot concede that the words "willful desertion" employed in our statute defines such a condition. We think the Legislature intended these words to mean a complete withdrawal of marital cohabitation. As said by the court in Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95:

"The word desertion in the statute does not signify merely a refusal of matrimonial

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