Nordlund v. Nordlund

• Decision Date: 03 August 1917
• Docket Number: 13863.
• Citation: 97 Wash. 475,166 P. 795
• Parties: NORDLUND v. NORDLUND.
• Court: Washington Supreme Court

166 P. 795

97 Wash. 475

NORDLUND v. NORDLUND.

No. 13863.

Supreme Court of Washington

August 3, 1917

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action for divorce by K. E. Nordlund against Marie C. Nordlund. At the close of plaintiff's case, the court dismissed the action, and plaintiff appeals. Reversed and remanded.

Jay C Allen and Philip Tindall, both of Seattle, for appellant.

Saunders & Nelson, of Seattle, for respondent.

MORRIS J.

Appeal from a judgment of dismissal granted at the conclusion of appellant's case in chief. The action is for divorce, the complaint reciting a long list of grievances upon which the decree was sought. No more of this tale of domestic infelicity will be recited other than is necessary to an understanding of the conclusions reached. The parties are 46 years of age, and were married in December, 1894. A prior action was begun by appellant in April, 1915, which was dismissed at the suggestion of the then trial judge that the parties make another attempt to adjust their differences and live harmoniously. The attempt seems to have been a failure, and this action was commenced in March, 1916. Appellant testified that respondent had frequently accused him of improper conduct with other women, had called him a 'whore pimp,' had accused him of associating with vile and dissolute persons, said his place of business was not respectable, that the men of his family were dissolute that appellant had stolen money to give to his whores, and that for the past 12 years she had without cause refused him sexual intercourse. Other charges are made, but these are sufficient for the purpose of this opinion.

During the trial appellant, who was a photographer, admitted that on occasions he had taken one of his female employés to a restaurant, and had driven her from her home to his studio in his auto. No issue was made as to any misconduct with this young woman on the part of appellant. In fact, such charge was expressly disavowed by counsel for respondent, as appears from the following reference to the record: On appellant's cross-examination, counsel for respondent inquired of him how often he had taken this young lady out in his auto, to which objection was made as not in the issues. Counsel for respondent then said:

'His wife is not charging him with adultery. I believe he is an honest man, and there is no such thing as adultery in this case. I will say that now.'

At the close of appellant's case the lower court dismissed his action, upon the ground that appellant's conduct with this young woman was improper, and constituted such cruelty as to deprive him of the right to complain of the conduct of his wife. In this we think the lower court was in error. It is not necessary to say what conduct upon the part of a husband in associating with other women will deprive him of the right to seek a divorce from his wife. There is in this case neither allegation, claim, nor proof of any such misconduct. Had the wife sought a divorce because of the husband's relations with this young woman, her case would have fallen far short of a recovery, so far as the record now stands. It may be that, if respondent had gone into her case, she might have shown far more than appellant admitted on his cross-examination, which is now all that is before us, and which in our judgment is insufficient upon which to base any affirmative relief.

Touching appellant's case, irrespective of the conduct of respondent in other respects, whether sufficient or insufficient to grant the relief prayed for, there is one line of testimony sufficient to put respondent to a defense and that is the denial of sexual intercourse for 12 years. The sexual relation between husband and wife is one of the most delicate things courts have to deal with. For this reason the cases differ as to whether or not the marriage should be dissolved because of the refusal of sexual intercourse upon the part of either spouse. Some courts say the refusal of this privilege is only the denial of a single conjugal right, and of itself imports no cessation of cohabitation, which is deemed necessary before it can be said that there has been such misconduct as to entitle the aggrieved party to a divorce. Most of these cases are based upon the wording of divorce statutes, as in Maine, where in Stewart v. Stewart, 78 Me. 548, 7 A. 473, 57 Am. Rep. 522, it was said such a denial is not 'utter desertion' within the meaning of the Maine statute, though one of the judges in a concurring opinion says it may be cruelty. In Illinois, Florida, Iowa, and Massachusetts it has been held that such a denial is not willful desertion. Fritz v. Fritz, 138 Ill. 436, 28 N.E. 1058, 14 L. R. A. 685, 32 Am. St. Rep. 156; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L. R. A. (N. S.) 577; ...