Rose v. Rose

• Decision Date: 18 January 1883
• Citation: 14 N.W. 711,50 Mich. 92
• Court: Michigan Supreme Court
• Parties: ROSE v. ROSE.

14 N.W. 711

50 Mich. 92

ROSE v. ROSE.

Supreme Court of Michigan

January 18, 1883

In order to entitle a party to divorce on the ground of desertion for a period of more than two years, there must he satisfactory proof of (1) cessation of cohabitation; (2) an intent in the mind of defendant to desert; and (3) that the separation was against the will of the complainant; and as there is a deficiency of evidence on these points, especially as to the last, the decree of divorce granted below should be reversed, and the bill dismissed, with costs.

Appeal from Washtenaw.

Sawyer & Knowlton, for complainant.

A. & C.A. Blair, for defendant and appellant.

GRAVES, C.J.

The bill in this cause was filed for a severance of the bonds of marriage on a charge of desertion for the period of two years, and the court granted a decree. To make out a case for the dissolution of marriage on this ground there must be satisfactory proof of three things: First, cessation of cohabitation; second, an intent in the mind of the defendant to desert; and, third, that the separation was against the will of complainant. Cooper v. Cooper, 17 Mich. 205; Porritt v. Porritt, 18 Mich. 420; Rudd v. Rudd, 33 Mich. 101; Cox v. Cox, 35 Mich. 461; Sergent v. Sergent, 6 Stew. 204.

Assuming the first and second points to be fully proved, still they avail nothing for the purpose of a divorce unless the third is also made out, and it is here that the weakness of the case is conspicuous. A discussion of the testimony would not be profitable. We find evidence that the parties were not so trustful, patient and forbearing as they should be to secure domestic unity and harmony, and that they sometimes permitted themselves to indulge in unseemly sallies or resentment. But as observed in Cooper v. Cooper, supra, "the law does not permit courts to sever the marriage bond and to break up households merely because parties, from unruly tempers or mutual wranglings, live unhappily together." The impression made by the record is not only that there is a deficiency of proof that complainant has been opposed to the separation, but also that the bias of the evidence is affirmatively to the effect that he has been all along quite satisfied with it and virtually assenting.

The result is that the decree should be reversed and the bill dismissed with costs.

(The other justices concurred.)