Isaacs v. Isaacs

• Decision Date: 07 April 1904
• Docket Number: 13,426
• Citation: 99 N.W. 268,71 Neb. 537
• Parties: DANIEL ISAACS, APPELLEE, v. RACHEL DAVIS ISAACS, APPELLANT
• Court: Nebraska Supreme Court

99 N.W. 268

71 Neb. 537

DANIEL ISAACS, APPELLEE, v. RACHEL DAVIS ISAACS, APPELLANT

No. 13,426

Supreme Court of Nebraska

April 7, 1904

APPEAL from the district court for Wayne county: JAMES F. BOYD JUDGE. Affirmed.

AFFIRMED.

Wilbur & Berry, for appellant.

A. A Welsh, contra.

FAWCETT C. ALBERT and GLANVILLE, CC., concur.

OPINION

FAWCETT, C.

This is a suit by plaintiff for a divorce on the ground of desertion, with a petition in the usual form. Defendant, answering, admits the marriage and denies all the other allegations of plaintiff's petition, and, for cross-petition, asks for a divorce on the grounds: First, of desertion; and, second, failure to support. She bases her claim of desertion on the allegations that, prior to her marriage with the plaintiff, he agreed with her that he would make his home, after their marriage, in the state of Ohio; that without this promise she would not have married him; that on or about the first day of November, 1900, being the same year in which they were married, plaintiff left the defendant in Cincinnati, stating that he was going to Ironton, Ohio; and that instead of going to Ironton he came to Wayne county, Nebraska, without the consent or knowledge of the defendant. For reply, plaintiff says that, prior to his marriage with defendant, he expected to make his home, after their marriage, in the state of Ohio; that, after their marriage, he made numerous efforts to get into business or to obtain employment in that state, but was unable to do so, whereupon he repeatedly solicited the defendant to come to Wayne county, Nebraska, to make their home, but that defendant refused and has ever since refused; and in November, 1900, plaintiff, being unable to find a place in Ohio suitable and satisfactory, came to Wayne county, Nebraska, where he had resided prior to their marriage, and where he owned a well improved farm of 320 acres of land; that since coming to Wayne county he has repeatedly requested defendant to come and live with him, and, upon her refusal so to do, has offered to return to Ohio and make his home there, if defendant would live with him, but that defendant refused to live with him either in Nebraska or Ohio; that he is now ready and willing to provide a home and live with the defendant either in the state of Nebraska or the state of Ohio, and offers to return to Ohio and live with the defendant; alleges that for a long time prior to his marriage with defendant, he had resided in Wayne county, Nebraska, with his family, consisting of 5 children by a former wife, then deceased; that defendant has never contributed in any manner to the accumulation of any of the property of plaintiff or assisted in the care thereof; that defendant is possessed of a one-fifth interest in a house and lot in Norwood, Ohio, where she resides with her sisters, as the co-owners thereof; that he has always been ready and willing to contribute to the support of defendant, and has sent her money, which defendant has refused to receive.

The evidence shows that the parties were married in April, 1900; that defendant had a decided aversion to coming to Nebraska, preferring to live in Ohio, where she had lived all her life, and where plaintiff had spent the early years of his life; that, after the marriage, they came to Nebraska and spent a couple of months together on plaintiff's farm in Wayne county, defendant returning to Ohio during the summer, and plaintiff agreeing to follow her in September. In September, plaintiff returned to Ohio in accordance with this arrangement, and began his efforts to get into a business of some kind which he would be able to manage, or, failing in that, to obtain some suitable employment. He seems to have been quite persistent in his efforts in this direction. The evidence satisfies us, as it doubtless did the trial court, that those efforts were made in good faith, and that he did everything in his power to gratify the wish of his wife. On the evening of November 4, 1900, he returned to the defendant's old home, where she was living with her sisters while he was making the efforts to secure a business, above referred to, feeling rather discouraged at another failure of his plans. Defendant seems to have been angry at him on account of this failure, and told him he could not stay there that night. After some talk between them, she partially relented and permitted him to remain in the house that night, but refused to occupy the same room with him, telling him that he would have to occupy another room, which he did. The next morning he left her with the understanding that he would make another trip to Ironton, and try and make some kind of an arrangement by which they could move there. After leaving the house, under the effects of the chilly reception which he had received the evening before, he said he was feeling homesick, and concluded that he would take a trip to Nebraska; so, instead of going to Ironton he took the train for Omaha. The first thing he did after arriving in Omaha was to write to his wife, telling her what he had done, and expressing sincere regret that he had left her and come to Nebraska without telling her that he was going to do so, and asked her forgiveness for having done so. He waited some time, and, receiving no answer, he again wrote her from his farm in Wayne county. Receiving no answer to that, he wrote a third letter. To this he received this answer:

"NORWOOD, OHIO, December 16, 1900.

"Mr. Isaacs--Sir: You deserted me once for all. I will have nothing more to do with you. You have made many good promises to me but kept none of them. I do not want you to come back to Ohio, as you left me without a cause. Hoping this will be satisfactory, I remain,

"RACHEL DAVIS ISAACS."

Notwithstanding this letter plaintiff kept writing to his wife, urging her to reconsider the matter, calling her attention to the fact that he had been unable to get into business in Ohio, that he had a good home in Nebraska and could support her in proper manner here. Finding that she would not yield, he then wrote her that he would return to Ohio and secure a home for them there. Receiving no word from her, in the fall of 1901 he returned to Ohio, learned where she was stopping, and went to the house between 7 and 8 o'clock in the evening, to see her. In answer to his rap at the door she appeared and, on observing who it was, slammed the screen door shut and retired to another room in the rear of the house. He went around to the window and importuned her to talk the matter over...