Decker v. Decker
| Decision Date | 25 October 1919 |
| Docket Number | 4050. |
| Citation | 185 P. 168,56 Mont. 338 |
| Parties | DECKER v. DECKER. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.
Action by Katherine Decker against Wendolin Decker. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Wagner & Taylor, of Hamilton, for appellant.
E. C Kurtz and H. C. Packer, both of Hamilton, for respondent.
Action for separate maintenance. To the complaint a general demurrer was interposed, which was overruled. Upon the defendant's failure to plead further, a default judgment was entered against him, decreeing to the plaintiff the right to live separate and apart from defendant, and that certain lands of defendant, which are particularly described in the complaint and decree, be awarded to plaintiff for the purpose of providing for her separate maintenance, and that the title in fee to said lands be devested from defendant and transferred absolutely to plaintiff, free from all claims of defendant.
The appeal is from the judgment, and two questions are presented for decision: First, does the complaint state facts sufficient to constitute a cause of action? and, second, did the district court have the power to devest the defendant of the title to his property, and to transfer the same to the plaintiff absolutely?
The complaint alleges that the plaintiff and the defendant were married on August 16, 1915, and that plaintiff immediately went with defendant to his residence and took up her abode with him; that immediately thereafter defendant began and persisted in a course of conduct toward plaintiff which made it intolerable for plaintiff to remain with defendant; that upon her arrival at defendant's residence plaintiff discovered that he had made no provision for the common necessaries of life, and as a consequence she was compelled to retire without eating, and that during the whole time plaintiff remained with defendant the latter wholly failed to obtain suitable food, or to provide sufficient means wherewith to prepare the same, although he was possessed of abundant means to do so; that defendant requested plaintiff to prepare food from corn meal which was decayed, worm-eaten and filled with worms, and, upon plaintiff calling defendant's attention to this, the defendant procured a sieve and demanded that plaintiff sift and screen and prepare said meal for food, stating that it would then be fit and proper for that purpose; that defendant at all times was extremely filthy in his habits; that he failed to bathe his person, and that the bed which he provided for plaintiff's use was filled with nauseating repulsive, and offensive odors; that defendant persisted in going about the house in scanty and insufficient clothing thus exposing his person and private parts in a vulgar and indecent manner in the presence of plaintiff and her two minor daughters, notwithstanding plaintiff's repeated protests; that defendant was afflicted with boils and eruptions upon his person, and at divers and various times, while seated at the table, defendant would squeeze into his hands from said boils and eruptions certain vile, foul, and putrid pus and corruption, and then, without cleansing his hands, would proceed to handle and cut bread for common use; that plaintiff made known to defendant her objections to such conduct and habits of defendant, but that defendant persisted in the same; that such conduct and habits, and defendant's failure to provide food, were obnoxious to plaintiff, and rendered the continuance of the marital relation between plaintiff and defendant perpetually unreasonable and intolerable; and that on September 14, 1915, by reason thereof, the plaintiff left the residence of defendant, and since said date she has lived separate and apart from him, and defendant has not provided her with any of the common necessaries of life. It is further alleged that plaintiff and her two children by a previous marriage are wholly dependent for support upon her labor and the help of friends; that the defendant is the owner of certain lands situate in Ravalli county, of the value of $8,000, which is suitable property to be set apart to the plaintiff for the purpose of providing for her separate maintenance, and that the defendant is a strong and able-bodied man, amply able to earn a living for himself and for plaintiff and her said minor children.
1. The case is maintained under section 3677 of the Revised Codes, which, in so far as it is pertinent here, reads:
Section 3643 provides that absolute divorces or separations from bed and board, or decrees for separate maintenance, may be granted for any of the several causes therein mentioned, which includes that of willful desertion. By section 3646 willful desertion is defined as:
"The voluntary separation of one of the married parties from the other with intent to desert."
Section 3653 reads:
"If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him."
The allegations of the complaint are sufficient to bring the cause of action within the provisions of section 3653 above. In determining whether the complaint states a cause of action or entitles plaintiff to any relief, matters of form are to be disregarded, as well as allegations that are irrelevant and redundant; and if from any view the plaintiff is entitled to relief, the pleading will be sustained. Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976.
It is contended that the willful desertion, which is the only ground provided in section 3677, above, for the maintenance of this action, is the willful desertion defined by section 3646, above, and that section 3647, which...
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