Franklin v. Franklin
| Decision Date | 10 March 1894 |
| Citation | 35 P. 1118,53 Kan. 143 |
| Parties | FRANKLIN v. FRANKLIN. |
| Court | Kansas Supreme Court |
1. To reverse the judgment of a district court refusing a divorce on the ground of abandonment, the evidence showing an intentional desertion for at least one year must be clear convincing, and uncontradicted, and it must also appear that such abandonment was not the result of the plaintiff’s own wrongdoing.
2. The case of a wife who has been afflicted with temporary insanity will be viewed with especial care and consideration, and all her actions will be weighed in the light of her physical and mental infirmities.
Error from district court, Brown county; R. C. Bassett, Judge.
Action by James B. Franklin against Clara A. Franklin for a divorce. From a decree denying the petition, plaintiff brings error. Affirmed.
James Falloon, for plaintiff in error.
Webb & Raymond, for defendant in error.
James B. Franklin commenced this action in the district court of Brown county to obtain a divorce from his wife on the ground of abandonment. She answered, denying such abandonment, alleging cruelty on the part of her husband, praying a divorce from him, and for alimony. The court, after hearing the evidence, denied both the application of the plaintiff and of the defendant for a divorce.
It is contended in this court that the plaintiff clearly proved an abandonment, and that, having done so, he is entitled as a matter of strict legal right to a divorce. No appearance is made here by the defendant. In section 643 of the Code it is provided that, "when the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce." It appears from the evidence that the parties were married in 1873, in Illinois, where they resided until the defendant became temporarily insane. While the defendant was in the insane asylum at Elgin, Ill., the plaintiff came to Kansas. The defendant remained in the asylum about a year and a half. When she had recovered sufficiently to be discharged, the plaintiff went back to Illinois, and brought her out to Kansas with him. The parties have two children both boys. One day the younger one, about six years old, went to a neighbor’s to play with a little girl. The father had forbidden his going. The mother, not knowing what the father had done, gave him permission to go. At night the father whipped him for his disobedience, in the presence of the mother. She opposed his doing so, and a scuffle took place between them; she striking him, and he pushing her roughly. Soon after this she left, and went back to her father in Illinois. The evidence is somewhat conflicting as to just what took place immediately before her departure. The plaintiff testified that he told her she must not go. The defendant’s father, who was present at the time, testified that he told her, "You can go, but you cannot take anything but your wardrobe." There is testimony showing that, at the time the defendant left her husband, she intended never to return. She herself testifies that she did not then think she would ever come back, but, after being away four or five weeks, she wanted to return. It...
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Bethel v. Bethel
...wreck and mentally unaccountable for his words and actions and charges against his wife, she was not entitled to a divorce. Franklin v. Franklin, 53 Kan. 143; Baker Baker, 82 Sud. 156; Wray v. Wray, 19 Ala. 522; Broadstreet v. Broadstreet, 7 Mass. 474; Nichols v. Nichols, 31 Vt. 328; Cohn v......
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Lindbloom v. Lindbloom
...default, but the default must be attended with circumstances of indignity or aggravation.' 22 Kan. at pages 700, 701. In Franklin v. Franklin, 53 Kan. 143, 35 P. 1118, the husband's application for divorce upon the grounds of abandonment was refused and the evidence disclosed that material ......