Hudson v. Hudson

• Decision Date: 02 February 1910
• Citation: 59 Fla. 529,51 So. 857
• Parties: HUDSON v. HUDSON.
• Court: Florida Supreme Court

51 So. 857

59 Fla. 529

HUDSON v. HUDSON.

Florida Supreme Court

February 2, 1910

Headnotes Filed April 15, 1910.

In Banc. Appeal from Circuit Court Santa Rosa County; J. E Wolfe, Judge.

Bill by Moses D. Hudson against Frances E. Hudson for divorce. Bill dismissed, and complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

In a suit for divorce upon the ground of willful, obstinate, and continued desertion for the statutory period, it is immaterial which of the married parties leaves the marital home, the one who intends bringing the cohabitation to an end commits the desertion. The party who drives the other away is the 'deserter,' and a wife may drive her husband away.

The meaning of the statutory ground for divorce 'willful,' 'obstinate,' and continued desertion for more than one year, considered and discussed.

COUNSEL J. P. Stockes, for appellant.

OPINION

PARKHILL J.

The appellant filed his bill of complaint praying for a decree dissolving the bonds of matrimony then existing between him and his wife, the appellee, upon two grounds: Willful obstinate, and continued desertion for more than one year; and for extreme cruelty.

A decree pro confesso was duly entered against the defendant for her failure to plead, answer, or demur to the bill of complaint on the rule day succeeding that to which process of subpoena was returnable. The cause was referred to Hon. C. H. Laney, as special master, who made a report of the testimony with recommendation that the relief prayed be granted. Upon consideration of same, the chancellor dismissed the bill and complainant appealed.

There is no conflict in the testimony. The facts are not denied or disputed. It appears that ever since these parties were married the complaining husband was without fault, but, during the last few years of their married life, the defendant was very quarrelsome, and would fuss and curse the complainant almost every day. Upon one occasion the defendant tried to induce one Jane Thompson, daughter by a former husband, to put poison in the bread intended for the complainant to eat. Jane refused to do so, and told Moses Hudson about it. Upon another occasion the defendant tried to hire a man to kill the complainant, and again about three months before the final separation of the parties, the defendant tried to get one C. C. Thompson to go hunting with complainant and shoot him, pretending that the gun was discharged accidentally. Finally, one morning in May, 1905, the defendant 'flew into a violent rage' at the complainant about a matter for which he was not to blame, publicly cursing and abusing him, much to his embarrassment, continuing this conduct all the morning until he left home to avoid her. Hoping that she would be friendly, Hudson returned to his home in the afternoon of that day, but Mrs. Hudson was just as bad as when he left her in the morning, cursing and abusing him shamefully. The complainant testified: 'She ordered me out of the house and told me to leave and never come back, that she never intended to live with me again, and that she did not want to have anything to do with me. I argued the question with her and tried to show her where she was mistaken, but she would not hear me. She ordered me out against, and again told me never to come back and that she would never live with me again. There being nothing else for me to do I left. I went down to my boat and lived there the best I could.' He was asked, 'What was the last thing she said to you?' 'Moses Hudson, you God damn son of a bitch, you can't call me 'wife' any more, and I will never live with you another day,' was her answer. According to the testimony of one of the witnesses, 'She quit him. She called him a God damn son of a bitch. She told him he could never call her 'wife' again. She told him he had to go. He went off in the morning and came back in the evening. She cursed him out again, and told him that she didn't want him around the place. He went down to the boat and lived there.' The parties have not lived together since that time, a period much longer than the one year prescribed by the statute.

We think the testimony sustains the ground of a willful, obstinate, and continued desertion for more than one year.

First, as to desertion. Mr. Bishop, in the second volume of his work on Marriage and Divorce, p. 597, says: 'It is immaterial which of the married parties leave the marital home, the one who intends bringing the cohabitation to an end commits the desertion. Thus, to drive away the wife from the house is to desert her.' The party who drives the other away is the deserter, and a wife may drive her husband away. 5 Am. & Eng. Ency. Law, 803. See Gray v. Gray, 15 Ala. 779, 784; Skean v. Skean, 33 N. J. Eq. 148.

The testimony shows that the defendant was the one who intended to bring the cohabitation to an end. After years of cursing and abusing her husband, endeavoring to take even his life, and with violent language and epithet most opprobrious she drove this patient, nonoffending man from the marital home. There is no doubt about the meaning of her declaration: 'Moses Hudson, you God damn son of a bitch, you can't call me 'wife' any more, and I will never live with you another day.' The wife was the deserter.

Was the desertion willful? Willful means on purpose--intentional. As we have seen, the defendant intentionally and on purpose and willfully brought the cohabitation to an end. Crawford v. Crawford, 17 Fla. 180.

Was the desertion obstinate? Obstinate means determined--fixed--persistent. During all the years of the separation, the deserting wife was determined, fixed, and persistent in putting an end to the cohabitation, in her desertion, although her husband lived near by in his boat 'the best he could.' All that time she made no effort to bring about a reconciliation or a restoration of the marital relations, which she had terminated.

In New Jersey, where the desertion must be, like here, 'willful continued, and obstinate,' in Jerolamon v. Jerolamon (N. J. Ch.) 54 A. 166, where the husband being in fault was the deserter, the court said: 'The question in the case is whether the separation was continued and obstinate on his part for two years after that time. The separation in this case was, as I have stated, legally chargeable to the husband, and under the rule applied in cases of this character it was the duty of the husband to reform his habits, and after such reformation and whthin the two years seek out his wife, and apply to return, giving her reasonable assurances of the sincerity of his reformation, and of her probable safety in resuming marital relations.' In McVickar v. McVickar, 46 N. J. Eq. 490, 19 A. 249, 19 Am. St. Rep. 422, the court said: 'If, however, the husband's cruelty was not of such intensity as to amount to desertion, still it was such as to justify the wife in temporarily separating herself from him, and it was his duty to seek a return. This he did not do, but for many years remained entirely passive,...