Perine v. Perine

• Decision Date: 05 December 1922
• Docket Number: (No. 4572.)
• Citation: 114 S.E. 871
• Court: West Virginia Supreme Court
• Parties: PERINE. v. PERINE.

114 S.E. 871

PERINE.

v.PERINE.

(No. 4572.)

Supreme Court of Appeals of West Virginia.

Dec. 5, 1922.

(Syllabus by the Court.)

Appeal from Circuit Court, Taylor County.

Suit by Minor Perine against Sarah A. Perine. From a decree of divorce for plaintiff, defendant appeals. Affirmed.

Warder & Robinson, of Grafton, for appellant.

O. E. Wyckoff, of Grafton, for appellee.

POFFENBARGER, P. The principal inquiry raised on this appeal is whether the decree awarding a husband a divorce from bed and board, upon the facts and circumstances disclosed by the record, is correct.

A fully proved and admitted fact is that the wife withholds from him all marital duty of" every kind. She occupies one room of the house owned by her two stepdaughters, subject to a life estate in their father, her husband, which she keeps locked and to which he does not have access, and she discharges no household duties whatever for the family. The husband says he went to her room, but found it locked. She says he has a key to the room and could enter, but has never endeavored to do so. She admits, however, that she broke off cohabitation, by leaving the room jointly occupied by them and taking another which she keeps locked. Between her and the husband there is no social intercourse, and she renders him no marital duty or service in any way. In every particular save one, residence in the same house, they are completely separated, and she separated herself from him.

The case is readily distinguishable from Wills v. Wills, 74 W. Va. 709, 82 S. E. 1092, L. R. A. 1915B, 770, in which the wife was derelict in only one respect. Nor is it similar to the case of Huff v. Huff, 73 W. Va. 330, 80 S. E. 846, 51 L. R. A. (N. S.) 282, in which the plaintiff endeavored to justify his own desertion and establish cruel and inhuman treatment and adultery on the part of the wife. Unjustifiable suspension of all marital duty on the part of the spouse amounts to desertion, even though both remain under the same roof, if it was accompanied by intent to desert. Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Heermance v. James, 47 Barb. (N. Y.) 120; Stein v. Stein, 5 Colo. 55; Evans v. Evans, 93 Ky. 510, 20 S. W. 605; Bishop, Mar. & Div. § 779; Nelson, Div. § 70. Obviously the status of the parties, unexplained and unqualified, will sustain the decree, unless the conduct of the wife is justified upon some ground, or it can be held that she did not intend to desert her husband.

Nothing short of conduct on the part of the husband affording ground for a divorce in her favor and against him could legally justify her total discontinuance of marital duty. Alkire v. Alkire, 33 W. Va. 517, 11 S. E. 11; Martin v. Martin, 33 W. Va. 695, 11 S. E. 12; Huff v. Huff, 73 W. Va. 330, 80 S. E. 846, 51 L. R. A. (N. S.) 282. The evidence discloses no semblance of ground for divorce in the conduct of the husband upon which the wife relies for justification. They had frequent quarrels, and he may have inflicted verbal abuse upon her and treated her with some degree of indifference. Their troubles originated in controversies between her and bis...