McKlNNEY v. McKlNNEY.
| Decision Date | 02 November 1915 |
| Docket Number | No. 1715.,1715. |
| Citation | 77 W.Va. 58 |
| Court | West Virginia Supreme Court |
| Parties | McKlNNEY v. McKlNNEY. |
If by his conduct or demeanor a. husband causes his wife to lose respect for him, or thereby alienates her affections, or destroys her mental quietude and comfort, and thereafter wilfully deserts and abandons her, without other cause therefor, no duty devolves on her to solicit reconciliation and renewal of actual cohabitation, (p. 61).
Denial of sexual intercourse does not constitute cause for wilful desertion and abandonment, (p. 60).
Depositions taken by defendant in support of an answer not then filed, plaintiff being then present and consenting thereto without objecting to the premature taking thereof, may upon the filing thereof, together with or subsequent to the filing of such answer, be read on the hearing of the cause, submitted by agreement, as part thereof, though then objected to by plaintiff. His participation in such taking without objecting thereto for that reason operates as a waiver of the irregularity, (p. 59).
On the party complaining rests the duty of specifying the evidence by him deemed improperly admitted over his objection. When not so designated, the appellate court will not search for the objectionable testimony, (p. 59).
Appeal from Circuit Court, Marion County. Suit by Emory F. McKinney against Odell P. McKinney. From decree for defendant, plaintiff appeals.
Reversed and remanded.
Harry Shaw, for appellant, Rollo J. Conley, for appellee.
Plaintiff, by her bill, seeks a limited divorce, on the ground of desertion. By final decree of October 28, 1911. the Intermediate Court of Marion County denied the relief sought, except that it awarded alimony to the extent of ten dollars per week. Upon appeal thereto, this decree was affirmed by the circuit court, from whose order the present appeal was obtained.
By the first assignment, plaintiff challenges 'the propriety of the ruling on the objection interposed by her to the reading of depositions taken by defendant before the filing of his answer. Generally, depositions to be read on the hearing of any case should not be taken before the filing of the pleading whose allegations they are intended to support, Goldsmith v. Goldsmith, 46 W. Va. 422; Dixon v. Dixon, 73 W. Va. 7; Cooper v. Bennett, 70 W. Va. 110. This rule applies alike to all cases, including those for divorce. But, without protest or objection, indeed by agreement of counsel, and without formal notice thereof, the depositions were taken before the filing of the answer; and, though objected to when tendered, the parties agreed in the order filing the answer and the depositions to submit the cause at the same term, and four days later did submit it for final decree, presumably upon the record as so made. This action virtually operated as a waiver of the rule of proceeding prescribed by the cases cited.
By the second assignment, plaintiff complains of the refusal to sustain her motion to exclude responses to inquiries appertaining to the courtship of the parties and their conduct towards each other during the earlier period of their marital relation, on the ground that the inquiries were irrelevant and immaterial on the question of desertion, the sole ground averred for the relief prayed by plaintiff. But she failed to designate, with the particularity required by the rules of this court, the testimony by her deemed objectionable. Hence, we decline to search therefor through the four hundred pages of the record before us. That duty devolves on counsel, not on the court, as such rules will show.
The defenses asserted by defendant are, first, that he was not guilty of wrongful desertion; and, secondly, that his offers to resume cohabitation were repulsed and refused.
Plaintiff and defendant were married in December, 1901. Thereafter, with the exception of brief intervals during which they lived elsewhere, they have resided in Fairmont until the present time. Their marital life was not happy for any considerable portion of the eight years of its continuance prior to the first and only separation in 1909. Discord began soon after the inception of the relation. It thereafter frequently occurred, and on several occasions breach of the relationship seemed imminent, Of the union twro daughters were born, aged four and six years at the date of the separation.
It is unnecessary to detail the voluminous testimony. After a careful examination and consideration of it, our conclusion is that the desertion alleged is sufficiently proved. Defendant's contention that he was justified by plaintiff's conduct in...
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