Sisemore v. Sisemore

• Decision Date: 03 May 1889
• Citation: 17 Or. 542,21 P. 820
• Parties: SISEMORE v. SISEMORE.
• Court: Oregon Supreme Court

21 P. 820

17 Or. 542

SISEMORE v. SISEMORE.

Supreme Court of Oregon

May 3, 1889

Appeal from circuit court, Jackson county.

(Syllabus by the Court)

Willful desertion is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or wrongful conduct of the other.

H.K Hannah, for appellant.

C.W Kahler and H. Kelly, for respondent.

STRAHAN J.

This is a suit for a divorce. The amended complaint contains two causes of suit. Our attention will be directed only to the first cause specified. The material part of the amended complaint is as follows: "That about five years ago plaintiff, with his said wife and children, moved from Jackson county to Crook county in said state of Oregon, and that plaintiff ever since, and now is, a resident of Crook county; that in October, 1885, the defendant returned from Crook county to her former home in Jackson county, and has ever since remained there; that ever since said last-mentioned date said defendant has willfully deserted the plaintiff, and has willfully remained away from him and their said home, and, though often requested by the plaintiff, has ever since said last-mentioned date persistently refused to return to the plaintiff or their said home, or to longer cohabit with plaintiff thereat. These allegations were met by denials, the cause was referred, and much evidence taken on both sides. Upon a trial in the court below the suit was dismissed and costs adjudged against the plaintiff, from which decree this appeal was taken.

It appears from the evidence that these parties were married on the 13th day of December, 1867, in Jackson county, Ore.; that at the time of her marriage with the plaintiff she was a widow, and the mother of three children by her former husband. It also appears that for some time before the final separation an estrangement grew up between these parties, but, so far as the evidence discloses, the plaintiff was not its cause, nor did he in any manner encourage it. Antagonism also grew up between the plaintiff and the children of the defendant by her first marriage. The plaintiff was largely engaged in stock business, and, as the range failed in Jackson county, he was compelled to seek other range, or cease the business. He first went to Klamath county, and then afterwards established himself in Crook county, where he still continues to be engaged in that business. The defendant, for some time after the plaintiff went to Crook county, continued to reside upon her farm in Jackson county, where she and her first children carried on farming and stock raising. Finally she went with plaintiff to his home in Crook county, and remained there with him for some time, taking with her her younger children. In 1885 she expressed a wish to return to her former home in Jackson county, for the purpose of schooling the children, and the plaintiff consented to it, and brought her and the children back. When the plaintiff again visited them he objected to the manner in which the defendant was schooling the children. It seems that the plaintiff wished the children to be regularly kept in school, but the defendant thought there was plenty of time to school them later. During this visit the defendant and her two older boys treated him very coolly. On this occasion the plaintiff wished the defendant to return to Crook county with him. When he again came down he wanted to know of the defendant if she was not ready to go home, but she told him in substance that she had a very good home where she was, and that she did not see any use in going up to Crook county. This was about one year after the plaintiff brought her down. It was on this occasion that the defendant proposed that the plaintiff should return to Jackson county, but the plaintiff told her he could not do it; that he had a homestead in Crook county, which was his home; and that he did not propose to come down here to live with her and the boys. On this occasion the plaintiff told the defendant that she did not treat him as a wife ought to treat a husband, but she informed him that she treated him better than he deserved....