Easter v. Easter

• Decision Date: 04 May 1909
• Citation: 73 A. 30,75 N.H. 270
• Parties: EASTER v. EASTER.
• Court: New Hampshire Supreme Court

73 A. 30

75 N.H. 270

EASTER

v. EASTER.

Supreme Court of New Hampshire. Belknap.

May 4, 1909.

Exceptions from Superior Court, Belknap County; Stone, Judge.

Libel for divorce by J. Frank Easter against Carrie A. Easter. The court ruled in favor of libelant, and libelee excepts. Exception overruled.

February 19, 1905, the libelee without sufficient cause abandoned and refused to live with the libelant, and since that date the parties have not lived together or cohabited as husband and wife. September 11, 1906, the libelant brought a libel for divorce on the ground of abandonment, which was entered at the September term. The libelee appeared. There was no hearing, but at the March term, 1907 (March 27th), the libel was dismissed without prejudice. The libelee moved to dismiss the pending libel, upon the ground that three years' abandonment had not been proved, because the time during which the first libel was pending could not be reckoned as part of the three years. The court ruled otherwise, and the libelee excepted.

Bertram Blaisdell, for plaintiff.

Harrison Dunham & Son, for defendant.

PARSONS, C. J. "A divorce from the bonds of matrimony shall be decreed in favor of the innocent party * * * when either party, without sufficient cause, and without the consent of the other, has abandoned and refused for three years together to cohabit with the other." Pub. St. 1901, c. 175, § 5. As there was no hearing, the facts involved in the first libel were not litigated, and the form of the judgment of dismissal ("without prejudice") specially reserved to the parties the right to litigate ail questions which might have been therein tried and determined. Brown v. Brown, 37 N. H. 530, 75 Am. Dec. 154.

Whether the defendant, without sufficient cause, and without the consent of the plaintiff, abandoned and refused for three years together to cohabit with the plaintiff were questions of fact, determinative of the present proceeding. Kimball v. Kimball, 13 N. H. 222, 224; Robinson v. Robinson, 66 N. H. 600, 23 Atl. 362, 15 L. R. A. 121, 49 Am. St. Rep. 632. The pendency of an application for divorce by either against the other might, under some circumstances, compel the inference that the separation during such pendencywas consented to, or was with sufficient cause. Ford v. Ford, 143 Mass. 577, 10 N. E. 474; Marsh v. Marsh, 14 N. J. Eq. 315, 82 Am. Dec. 251; Hurning v. Hurning, 80 Minn. 373, 83 N. W. 342; Palmer v. Palmer, 36 Fla. 385, 18 South. 720; Haltenhof v. Haltenhof, 44 Ill. App. 135; Porritt v. Porritt, 18 Mich. 420; Doyle v. Doyle, 26 Mo. 545; Salorgne v. Salorgne, 6 Mo. App. 603. It may, however, appear that both elements were present during all the prior litigation. Weigel v. Weigel, 63 N. J. Eq. 677, 52 Atl. 1123; Wagner v. Wagner, 39 Minn. 394, 40 N. W. 360; Hitchcock v. Hitchcock, 15 App. D. C. 81; Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1.

It is said: "The parties should live separate during a suit for divorce. While the suit is pending cohabitation would be highly improper, and therefore the time of such separation can form no part of the statutory period." 1 Nels. Div. & Sep. § 93. Doubtless absence of cohabitation after the filing of the libel is essential to the successful maintenance of a suit for divorce; but the policy of the law promotes the continuance of the marriage relation—not its destruction by divorce. Hence it is not...