Logan v. Logan

• Decision Date: 01 November 1841
• Parties: Logan v. Logan.
• Court: Kentucky Court of Appeals

41 Ky. 142

Logan v. Logan.

Court of Appeals of Kentucky.

November 1, 1841

Divorce. Alimony. Abandonment.

APPEAL FROM THE FAYETTE CIRCUIT.

Owsley, Turner, Robinson & Johnson for appellant

Combs for appellee.

OPINION

ROBERTSON CHIEF JUSTICE:

The case stated.

ON the 5th of August, 1835, Archibald Logan and Eleanor Robb, each then nearly 70 years of age, intermarried at Lexington, after mutually signing a contract in writing, whereby they agreed that neither of them should claim, by survivorship or otherwise, any right to the property of the other. Each of them had children by a former marriage, and had maintained a good and rather enviable reputation for personal honor domestic virtues, and christian graces--he being a member of the second and she of the first Presbyterian church of the said city.

As might have been expected, they lived together in apparent harmony and happiness until early in February, 1838, when, for the first time, so far as we are informed, their domestic peace was disturbed by intemperate complaints and upbraidings upon her part for alleged grievances, neither satisfactorily established nor explained by proof; and by r??sponsive conduct upon his part, sometimes neither conciliatory nor the most prudent, and which tended rather to exasperate than to soothe the deeply moved feelings of his discontented and irritated wife. Their discord, soon becoming clamorous, attracted public observation which, instead of stifling, seemed only to inflame her heated passions. The intervention of friends, in and out of the church, invoked by Mr. Logan ostensibly for pacification, having failed and only added fuel to the flame, the prospect of cordial reconciliation became almost hopeless; and the irritability and wretchedness of the parties seemed so fixed and extreme as to indicate either the existence of some untold and deep-rooted grief or a destitution of that love and confidence which alone can happily cement the conjugal union, and without which wedlock is a curse.

At last Mr. Logan, expressing the conviction that a dissolution was inevitable, and declaring that he was " sinking fast" --rented his dwelling and left home, as he then announced and still admits, " with a view to a permanent separation. " He directed his tenant, however, " to treat Mrs. Logan well " and permit her to " remain as long as she chose. " On the next day she also left the house and has never since returned. During the same week, but after her departure, he returned and has since re-occupied the house alone. But, in less than ten days after his return, she sued him in Chancery for alimony, charging him with enormous cruelty, aggravated by abandonment--in answering which he denied every allegation of improper conduct on his part, and averred that she had, by her own unprovoked misconduct, imposed on him the necessity of leaving her, as the only alternative consistent with their honor and happiness, the decorum of their neighborhood, and the interests of the church.

After the suit had been pending more than a year the parties agreed on the record that " the separation, as exhibited in the pleadings and proof, " still continued, and that the complainant should, on the final hearing, have the full benefit of that fact.

The Circuit Court decreed to Mrs. Logan, for alimony, an annuity of $500. He has appealed--insisting that she is entitled to no decree against him--and she assigns cross errors--claiming a larger allowance than that which the Circuit Judge made to her.

In revising the decree we shall abstain, as far as possible, from any allusion to disparaging facts charact??rizing a domestic tragedy so inscrutable in its origin, s?? disastrous in its character, and so lamentable in its results as that which the parties have unfortunately exposed on the record before us and on which our legal judgment is now required.

Whatever may have been the undisclosed origin or the secret history of this mysterious feud, the record, upon the face of which alone we must decide, does not sustain Mrs. Logan's accusatory allegations. And we are not allowed to doubt that she was not entitled to any relief, unless she had a right to it in consequence merely of abandonment.

Independently of the enactment of 1800, simple abandonment, however protracted, would not authorize a decree for a divorce a mensa et thoro and for alimony. According to the ecclesiastical or common law of England, either adultery or sæ vitia --that is, cruelty, endangering personal security -- authorized such a decree; but mere abandonment did not. It may be admitted, as intimated in Butler vs Butler, (4 Litt., 205,) that a husband who abandons his wife without cause, and refuses to either live with her or contribute to her maintenance, may be compelled by a Court of Equity to fulfill his legal and moral obligations in that respect. But Mrs. Logan's bill and proof do not bring the case within the range of the principle of that equity. Her bill was filed with no view to a decree for mere necessaries. It neither alleged that her husband had ever refused to pay for her necessary comforts nor suggested that he would not permit her to return to his house, or that she was even willing to do so, nor that she had ever proposed or desired a restitution of all conjugal rights. A suit for restitution of conjugal rights was the appropriate remedy in England for securing to an injured and deserted wife her rightful maintenance without being divorced a mensa. And unless she sought and was entitled to restitution she could not obtain a decree for separate maintenance--which was, as it always should be, only alternative and ultimate relief, and (upon general principles of equity and policy) never should be decreed to a wife who had neither sought nor desired a restitution of conjugal rights, and has no legal cause for a decree for separation.

Until the statute of 1800, abandonment alone was not a sufficient cause for a divorce a mensa et thoro and for alimony.

Mrs. Logan's right to a decree for maintenance, as now sought by her, must, therefore, depend on the legislative act of 1800, (Stat. Law, 121,) which authorizes a decree for alimony after an abandonment by the husband for one year. And her right to a decree under that enactment is resisted on five grounds--1st. That there was no " abandonment " in the available and statutory sense. 2nd. That if there was such abandonment, it was justified by legal cause. 3rd. That the bill, having been filed prematurely, ought, therefore, to have been dismissed. 4th. That she is estopped by the ante-nuptial contract--and 5th. That her own misconduct should bar her. But, after careful consideration, we have come to the conclusion that neither of these objections should prevail.

The grounds relied on in complainant's bill and the grounds on which the claim of complainant is resist ed.

1. Mr. Logan's answer alone is sufficient to show that he had rented and left his house as one mode of effecting a permanent separation from Mrs. Logan, and that he left her also with the fixed purpose of never again cohabiting with her, and without making or offering to make any certain provision for her comfortable maintenance out of his estate. As soon as she had also left the house he returned, and has never since intimated that he desired or would permit her to return to, and again live with him as his wife; thereby more conclusively evincing the purpose of deserting her and leaving her to her own solitary resources. This was " abandonment," statutory as well as actual. And his subsequent return to his desolate, but perhaps more quiet home, was no return to his wife, nor invitation to her to follow his example, but was rather a command to stay where his acts of desertion had virtually compelled her to go. She was bound to presume that he did not intend that she should go back to him and that an attempt to do so would drive him off again.

Husband leaving his house profesedly with the intention to remain away and not living with his wife, and his returning again on her leavit, is " abandonment," statutory and actual.

The expressive and persevering course thus...