Conn v. Conn

• Citation: 186 So. 646,184 Miss. 863
• Decision Date: 27 February 1939
• Docket Number: 33590
• Court: United States State Supreme Court of Mississippi
• Parties: CONN v. CONN

186 So. 646

184 Miss. 863

CONN v. CONN

No. 33590

Supreme Court of Mississippi, Division B

February 27, 1939

Suggestion Of Error Overruled March 27, 1939.

APPEAL from the chancery court of Alcorn county HON. JAS. A. FINLEY Chancellor.

Suit by Katherine Corm against Frank Corm for separate maintenance. From a decree for the plaintiff, defendant appeals. Affirmed.

Affirmed.

W. D Conn, of Corinth, and W. D. Conn, Jr., of Jackson, for appellant.

Appellee's claim to separate maintenance is based upon the alleged "desertion" of her by her husband. Our first three assignments of error go more or less to the same general proposition that on the record as a whole, and conceding everything shown by appellee's evidence, there was shown no right in her to sustain the proceeding which she instituted against appellant; that she showed no right to be separately maintained by her husband. These three assignments will, therefore, be considered together.

The alleged "desertion" consisted of the act of the husband's returning the wife to her father's home without just excuse or reason, and his unjustifiable refusal thereafter to live with her. In a word, it is not a case of constructive desertion, where the misconduct of the husband has compelled the wife to leave the husband; but a simple refusal by the husband, without justification, to live with his wife.

In an early decision of this court, Fulton v. Fulton, 36 Miss. 525, it was said that as ground for divorce, three things must concur to constitute desertion, namely: "1. A wilful desertion of the complainant by the defendant. 2. That such desertion by the defendant be continued for three years continuously; and 3. That the desertion be without the consent of the complainant."

Amis on Divorce and Separation, sec. 190; 30 C. J., pages 1072-1073; 9 R. C. L., pages 354-355; Broadus v. Broadus, 221 S.W. 804; State v. Weber, 48 Mo.App. 504; Vickers v. Vickers, 45 N.W. 274, 199 P. 76; 14 Cyc 611; Luper v. Luper, 61 Ore. 418, 96 P. 1101; Polley v. Polley, 128 Md. 60, 97 A. 526; Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231; Werpupp v. Werpupp, 108 N.J. Eq. 169, 154 A. 424; Biddle v. Biddle, 104 N.J. Eq. 313, 145 A. 639; Jenny v. Jenny, 178 Cal. 604, 174 P. 652; Decker v. Decker, 279 Ill. 300, 116 N.E. 688; Fulton v. Fulton, 36 Miss. 517.

The husband was making no move to take his wife home, but was resting quietly on his bed. Nothing had been said on the subject of her going since the afternoon before. But upon her insistence that he take her, and after repeated demands that he do so, and after he told her he did not propose to take her until her mind was made up, the appellant changed his clothes and took his wife home. So that the Chancellor's finding is not only against the great preponderance of the evidence, it is against all the evidence on the subject, appellee's as well as the others. But if we are mistaken in this, we know we are not mistaken when we say there is not here a shred of evidence to indicate that she did not go home willingly, or that she was not fully acquiescing in the matter of her going home.

Kenley v. Kenley, 2 How 751; Rylee v. Rylee, 108 So. 161; McLemore v. McLemore, 163 So. 500; Bangert v. Bangert, 232 Ill.App. 517; Reischfield v. Reischfield, 166 N.Y.S. 898, 100 Misc. 561; Strum v. Strum, 80 Misc. 277, 141 N.Y.S. 61; Silberstein v. Silberstein, 156 A.D. 689, 141 N.Y.S. 376; People ex rel. Douglass v. Naehr, 30 Hun. 461; 19 C. J. 64; Taylor v. Taylor, 108 Md. 129.

There is another angle from which this case may be viewed that reveals a situation fatal to appellee's cause of action. What we have in mind is what the courts have dubbed, rather facetiously it would seem, the "honors equal" doctrine; that is, the case where both parties are about equally at fault in bringing about a rupture of the marital relation. We take it that the same rule would hold in a suit for separate maintenance.

Ammons v. Ammons, 109 So. 795; Long v. Long, 135 So. 204; Dunn v. Dunn, 125 So. 562.

W. C. Sweat, of Corinth, for appellee.

The bill alleges that the appellant without any cause or excuse stated to her that he was going to carry her to her father's home and not live with her any longer, and that he did carry her to her father's home and there left her; and that about a week and a half afterwards she went back to her husband and tried to get him to take her back and live with her, and that this he refused to do; and we submit that this is a sufficient charge of wilful desertion.

I submit that the testimony shows clearly that the appellant tired of his wife and decided to carry her home and did carry her home and left her there to stay, and that she went back in good faith to get him to take her back and begged him to take her back, and this he flatly refused to do, and this constitutes desertion on his part.

Fulton v. Fulton, 36 Miss. 517.

If we conceded that his wife did go home in the first instance voluntarily, which we do not concede at all, but as a matter of fact if she had gone home at her own request this did not justify him in the least in refusing to take her back, and this did not justify him in staying away from her father's where he had carried her, for ten days without any communication whatever, and it most certainly did not justify him in staying away from her father's for six weeks after she had come back to him and begged him to take her back. What he should have done and what any normal husband who intended to do the right thing would have done, would have been to go to see her and ask her to come back even before she ever returned and to say the least of it, when she did return if he had been wanting to make a go of their married life he would have welcomed her back; but most certainly after she had returned and asked him to take her back and he refused and she still went back to her father's, if he had any intention at all of not completely and finally abandoning his wife he would within this six weeks' time have bethought himself and gone to her and told her that he was wrong in refusing to take her back and asked her to come back to him; but, according to his own admissions not a word did he say to her, nor intimation, either directly, by messenger or by mail did he indicate that he was willing to try it again, but absolutely ignored her from the time that he carried her to her father's for nearly two months, until this bill was filed.

17 Am. Jur., sec. 117, page 212.

The record in this case shows that the appellee went back to her husband and attempted to get him to take her back. It also shows that he refused to take her back; and it is shown by her mother and her uncle that when she came out of this interview with her husband she showed that she had been crying. She, therefore, pleaded with him with tears in her eyes for him to take her back, and he refused. Even if his actions up to that time had not constituted desertion his refusal to...