Laflamme v. Laflamme
| Decision Date | 17 October 1911 |
| Parties | LAFLAMME v. LAFLAMME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Oct 17, 1911.
Wendell Williams and S.D. Vincent, for libelant.
We must take it that no difficulty arose in this case under the provisions of R. L. c. 152, §§ 4, 6. The only question is whether upon the findings of the judge it ought to be ruled as matter of law that the libel cannot be maintained. We are of opinion that this ruling properly was made.
It is true, as was argued in behalf of the libelant, that in December, 1909, he had become entitled to a divorce from his wife on the ground of her desertion. Cargill v. Cargill, 1 Sw. & Tr. 235. He did not however attempt to avail himself of this right, but visited her at the house in which she was living, at Milford in this commonwealth, and remained there with her for about four days. During this period, it is found that 'they cohabited together as man and wife.
This was a complete renewal in all respects of the marriage relation between them. It was not simply that they occupied the same room and bed, although this also was found. Accordingly we need not consider whether the latter fact alone, unexplained, would not import as a necessary inference the complete cohabitation as man and wife which has been found. The wife's desertion ceased and he again received her as his wife when they thus resumed the matrimonial relations that had been interrupted in 1906 by her desertion. If afterwards, no matter how soon, she deserted him anew, this was merely a new act of misconduct on her part.
But it is not barely 'utter desertion for three consecutive years' that is a ground for divorce under our statute; the three consecutive years must have been 'next prior to the filing of the libel.' R. L. c. 152, § 1. Here, the parties lived together as husband and wife in December of 1909, though only for four days; and so there was no desertion for the 'three consecutive years next prior to the filing of the libel.' For this reason, no cause of divorce was shown at the hearing, and the ruling made was correct. Gaillard v. Gaillard, 23 Miss. 152.
It cannot be said that the husband's conduct in resuming matrimonial relations with his wife was merely a condonation or conditional forgiveness of her prior misconduct; and that her subsequent refusal to accompany or follow him to his home in Canada was the beginning of a new desertion by her ( Franklin v. Franklin, 190 Mass. 349, 77 N.E. 48, 4 L. R. A. [N. S.] 145), which avoided the effect of his condonation and so entitled him to rest his libel upon her first desertion. If we assume that this...
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