Roby v. Roby

• Decision Date: 07 June 1904
• Citation: 77 P. 213,10 Idaho 139
• Parties: ROBY v. ROBY
• Court: Idaho Supreme Court

77 P. 213

10 Idaho 139

ROBY v. ROBY

Supreme Court of Idaho

June 7, 1904

CASE HEARD ON DEPOSITIONS-WHEN RULE AS TO CONFLICT OF EVIDENCE DOES NOT OBTAIN-DIVORCE-WILLFUL DESERTION-WILLFUL NEGLECT.

1. Where a trial has been had entirely upon depositions, and the trial court has not seen and heard the witnesses, the appellate court is in as favorable position for judging of the truthfulness of the witnesses and the weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court.

2. Where the husband establishes a new home and requests his wife to follow him to the new domicile, and furnishes her the means with which to travel, and she declines to take up her residence with him, the husband is not thereby guilty of deserting his wife.

3. Evidence examined and held insufficient to entitle the plaintiff to a decree of divorce.

4. A wife who willfully and without good cause refuses to follow her husband to the home and place of residence selected by him cannot obtain a decree of divorce from him because he fails to provide for her during the period of her refusal to reside with him.

5. Where the wife appeals in good faith and the district judge does not order the husband to pay a sufficient sum to defray the expenses of appeal, and it appears that the wife has not sufficient property or means for that purpose, this court will tax any deficiency against the husband to the end that justice may be done.

(Syllabus by the court.)

APPEAL from District Court of the Second Judicial District in and for the County of Nez Perce. Honorable Edgar C. Steele Judge.

From a judgment denying and refusing a decree of divorce plaintiff appeals. Affirmed.

Judgment affirmed and costs awarded to appellant.

George W. Tannahill, for Appellant.

Upon the question of willful neglect and desertion we respectfully refer to the following authorities: Roycraft v Roycraft, 42 Cal. 444; Washburn v. Washburn, 9 Cal. 476; Gill v. Gill, 93 Md. 652, 49 A. 557; Bergemier v. Bergemier, 17 App. D. C. 481; Howard v. Howard, 134 Cal. 346, 66 P. 367; Carey v. Carey, 73 Cal. 630, 15 P. 313; Vossburg v Vossburg, 136 Cal. 195, 68 P. 694-696; Terrill v. Terrill, 109 Cal. 413, 42 P. 137; Duhon v. Duhon, 110 La. 240, 34 So. 428. We also call special attention to an article in Central Law Journal of July 24, 1903, pages 63, 64, citing Marsh v. Marsh, 13 N.J. Eq. 281; Harper v. Harper, 29 Mo. 301; Burns v. Burns, 60 Ind. 259, and Toulson v. Toulson, 93 Md. 754, 50 A. 401, showing a relaxation of the rule as to the wife and more stringent to the husband. Upon the question of the payment of costs of appeal, we cite and respectfully refer the court to the following authorities: Wisner v. O'Brien, 56 Kan. 724, 54 Am. St. Rep. 604, 32 L. R. A. 289, 44 P. 1090; Pleyte v. Pleyte, 15 Colo. 125, 25 P. 25; Lake v. Lake, 17 Nev. 230, 30 P. 878; Bohnert v. Bohnert, 91 Cal. 428, 27 P. 732; Larkin v. Larkin, 71 Cal. 330, 12 P. 227; People v. District Court, 21 Colo. 251, 40 P. 460; Rose v. Rose, 109 Cal. 544, 42 P. 452; Wolff v. Wolff (Cal.), 37 P. 858.

Charles L. McDonald, for Respondent.

It is a well-settled rule that it is the policy of the law to discourage divorce suits and not encourage them. (Stover v. Stover, 7 Idaho (Hasb.), 185, 61 P. 462.) Where a wife refuses to accept the provisions made for her support by the husband, but selects her own place of residence in contravention to his wishes, she cannot complain that he does not provide for her. (Gray v. Gray, 15 Ala. 779.) Willful neglect, whether accompanied with desertion or otherwise, is a distinct ground for divorce. The neglect must be such as leaves the wife destitute of the common necessaries of life or such as would leave her destitute but for the charity of others. (Washburn v. Washburn, 9 Cal. 475; Rycraft v. Rycraft, 42 Cal. 444; Page v. Page, 51 Mich. 88, 16 N.W. 245; Randall v. Randall, 31 Mich. 194; Stewart on Marriage and Divorce, c. 281.) Desertion consists in the actual ceasing of cohabitation with the intent in the mind of the offending party to desert the other. (Morrison v. Morrison, 20 Cal. 431; Stein v. Stein, 5 Colo. 55; Bennett v. Bennett, 43 Conn. 313; Rose v. Rose, 50 Mich. 92; Davis v. Davis, 60 Mo.App. 545; Serjent v. Serjent, 33 N.J. Eq. 204; Lynch v. Lynch, 33 Md. 328; Ruckman v. Ruckman, 58 How. Pr. 278; Thomas v. Thomas, 4 Kulp (Pa.), 328; Stewart on Marriage and Divorce, c. 253; 9 Ency. of Law, 2d ed., 766, 781.) Refusal of wife to accompany husband on change of his residence followed by actual cessation of matrimonial cohabitation and unattended by any excusing circumstance is evidence of desertion by the wife and grounds for a divorce. (Hardenbergh v. Hardenbergh, 14 Cal. 654; Schuman v. Schuman, 93 Mo.App. 99.) The allowance of alimony in a divorce action is by our code left to the discretion of the trial court. (Idaho Rev. Stats., sec. 2472; 17 Century Digest, p. 967, and numerous cases there cited.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

This action was commenced in December 1902, by the plaintiff praying a decree of divorce on two causes of action. The first cause of action charged willful neglect by the defendant to provide plaintiff with common necessaries of life for a period of more than one year immediately preceding the commencement of the action, and the second cause was on the grounds of willful desertion. The defendant answered denying the charges, and by way of separate defense set up what was apparently intended as a plea of former adjudication. The case was referred to a referee who took the testimony and reported it to the court. After a consideration of the evidence the trial court made and filed his findings of fact and conclusions of law, which were adverse to all of plaintiff's allegations, and thereupon judgment was entered denying plaintiff any relief. This appeal is from the judgment and an order denying a motion for a new trial. Since the trial judge did not see the witnesses upon the stand and did not hear them testify, but determined the case on depositions, we are in as favorable a position to judge of their truthfulness and the weight to be given to the evidence as was the trial judge. In such case the rule that this court will not disturb the judgment where there is a conflict in the evidence does not apply. We have therefore made an original and independent examination of the evidence in the case with a view to determine its weight and preponderance. It is only necessary to recite briefly some of the leading facts of the case.

The plaintiff and defendant were married in 1883, and lived together on a farm until 1899, and reared three children. In 1899 they rented the farm and moved to the town of Orofino. In the spring or summer of 1900, the defendant went into the Pierce City mining district of Shoshone county, and found employment at what is known as the French Creek mines, at a salary of $ 40 per month in the winter time and $ 60 in the summer time, together with buildings and conveniences for a residence in the neighborhood of the mines. At this time, it seems, they had the two girls in school, one at Lewiston Idaho and the other at Uniontown, Washington, and the husband was paying the expenses. The youngest child, a boy about five years old, remained with the mother at Orofino. After securing employment and about the month of November, 1900, the defendant wrote to his wife and sent her the money necessary to pay her expenses in making the trip from Orofino to the place of his employment, and requested her to come to him. This the plaintiff did not do, but spent the money for other purposes and replied to him that she would not live in there and claimed that she could not make the trip at that time of year, and that it was not a fit or convenient place for her to reside with her minor child. No further communication took place between the parties, but some time thereafter, and in the following year, the defendant caused to be published in an Orofino paper a notice to the effect that his wife had refused to live with him and that he declined to be further responsible for any bills contracted by her. Matters ran along in this condition without further communication between them until about October, 1901, when, according to the separate defense of defendant, an action for divorce between these parties was tried in the district court upon the same grounds involved in the present action and which resulted adversely to the plaintiff. No written or personal communication seems to have taken place between them from that time up to July, 1903, when this cause was tried. It seems that the husband was still willing to support and care for his wife if she would take up her residence with him at the domicile he had selected, and still he has never manifested any great anxiety to have her with him by writing or communicating with her in any way. On the other hand, the wife seems to have been willing to live with her husband at Orofino or on the farm, or some other place which might be suitable to her, but still she did not seem to be pining on account of his absence. In the meanwhile the respondent was steadily employed and using his earnings to defray the expenses of keeping the two girls in school, while the wife was going from place to place working for different families and earning a reasonably fair livelihood for herself and minor child. She had also been given some money and clothing by her father and some by other relatives and friends. It seems from the evidence that she was fairly well provided with apparel fit to wear in public and to keep up appearances, while, on the other hand, she was very scantily furnished...