Kirkpatrick v. Kirkpatrick

• Citation: 116 N.W. 499,81 Neb. 627
• Decision Date: 07 May 1908
• Docket Number: 15,216
• Parties: ROBERT KIRKPATRICK, APPELLANT, v. ELLEN KIRKPATRICK, APPELLEE
• Court: Supreme Court of Nebraska

116 N.W. 499

81 Neb. 627

ROBERT KIRKPATRICK, APPELLANT, v. ELLEN KIRKPATRICK, APPELLEE

No. 15,216

Supreme Court of Nebraska

May 7, 1908

APPEAL from the district court for Adams county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

R. A Batty, for appellant.

F. P Olmstead, contra.

GOOD C. DUFFIE and EPPERSON, CC., concur.

OPINION

GOOD, C. J.

The parties to this action were united in marriage in 1901, and lived together as husband and wife until December, 1903, when, so far as the record discloses, without any cause the wife took her clothing and left the home of her husband and went to the home of her sister. In less than a year she was adjudged insane and committed to the hospital for the insane at Lincoln, Nebraska, where she has since remained, except that she was released on parole for a period of two months in the summer of 1905. In September, 1906, Robert Kirkpatrick, the husband, brought this action for a divorce upon the ground of wilful abandonment for two years. A guardian ad litem was appointed, and answered for the defendant. The answer was a general denial, coupled with an averment of the facts as to her insanity and commitment to the asylum. Upon a trial of the issues thus joined, the district court found in favor of the defendant, and denied plaintiff a divorce, upon the sole ground that the defendant had not been of sound mind for two years since she had abandoned the plaintiff, and held that the abandonment must be continued wilfully for two years. To review this judgment the plaintiff has appealed to this court.

The appeal presents but a single question for determination: Can abandonment be a ground for a divorce when the offending party has been sane for less than two years after the abandonment? The determination of this question rests upon the construction to be given to the fourth subdivision of section 5328, Ann. St. 1907. This section states the grounds for which a divorce from the bonds of matrimony may be granted. The ground stated in the fourth subdivision is "When either party shall wilfully abandon the other without just cause for a period of two years." Appellant contends that the facts that while of sound mind the appellee abandoned her home and husband with the intention of not returning and that she had not returned to him for more than two years are sufficient to entitle him to a divorce, and that it is immaterial that she was of unsound mind during a portion of the two years. Upon the other hand, it is contended by the guardian ad litem of the appellee that not only must the act of abandonment be wilful, but the continuation of it for two years must be willful; that appellee, having become insane within less than a year, was incapable of being wilfully absent or of wilfully continuing the abandonment of her husband; and that therefore no right of action for divorce accrued to the appellant. The precise question does not appear to have been frequently before the courts, and but few precedents can be found. The supreme court of Iowa, in Douglass v. Douglass, 31 Iowa 421, construed a statute somewhat similar to ours, and held that it was immaterial that the offending party became insane after the abandonment and before the expiration of the period requisite to constitute a ground for divorce. The Iowa statute reads as follows: "When he wilfully deserts his wife and absents himself without a reasonable cause for the space of two years." The court in construing this statute held that the statute means that, if the husband wilfully deserts his wife when she by her conduct has not given him a reasonable cause, and if he afterwards remains away for the requisite period without her giving him any reasonable cause, she is entitled to a divorce. It was held that the reasonable cause which would justify the desertion or absence could only be established by proof of wrongful conduct...