Stocking v. Stocking
| Decision Date | 19 May 1899 |
| Docket Number | 11,507 - (76) |
| Citation | 79 N.W. 172,76 Minn. 292 |
| Parties | HOBART M. STOCKING v. BLANCHE C. STOCKING |
| Court | Minnesota Supreme Court |
Petition on Rehearing Filed June 26, 1899
Action in the district court for Ramsey county for divorce. The case was tried before O. B. Lewis, J., who found in favor of plaintiff; and from an order denying a motion for a new trial, defendant appealed. Reversed.
Divorce -- Wilful Desertion.
To entitle a plaintiff to a divorce on the ground of desertion he must allege and prove wilful desertion by the defendant for a full year next before the commencement of the action.
Divorce -- Misconduct Justifying Desertion.
The misconduct of one of the parties to the marriage contract, which will so far justify the injured party in leaving that the separation will not constitute wilful desertion, need not necessarily be such as to entitle the injured party to a divorce. It is sufficient if the party withdrawing from the cohabitation has reasonable grounds for believing, and does honestly believe, that by reason of the actual misconduct of the other it cannot be longer continued with health, safety, or self-respect. Wilful desertion in such a case does not begin until after the offending party has in good faith exhausted all reasonable efforts to right the wrong, and to satisfy the injured spouse that there will be no recurrence of the causes which induced the separation, nor until the lapse of a reasonable time for a consideration of the overtures for a reconciliation.
Divorce -- Finding not Sustained by Evidence.
Rule applied, and held, that the finding of the trial court in this case, to the effect that the defendant wilfully deserted the plaintiff one year next before the commencement of this action, is not sustained by the evidence.
Ambrose Tighe and Charles W. Farnham, for appellant.
Stevens, O'Brien, Cole & Albrecht, for respondent.
The complaint herein alleges that the parties are husband and wife, and that prior to January 16, 1897, the defendant, without cause or justification therefor, wilfully deserted the plaintiff, and ever since that time has, and still does, wilfully desert him, and prays that the marriage between the parties may be absolutely dissolved. The answer denies that the defendant ever wilfully, or without cause or justification, deserted the plaintiff, and affirmatively alleges that the plaintiff, by his misconduct towards her, and his cruel and inhuman treatment of her, drove her from him; wherefore she prays for an absolute divorce. The trial court found that on January 15, 1897, and for more than one year next preceding the filing of the complaint herein, the defendant wilfully, and without any cause or justification, deserted the plaintiff, and that all of the allegations of the complaint are true, and that the allegations of the answer are not true. The defendant appealed from an order denying her motion for a new trial.
If the words "next preceding the filing of the complaint" are to be given their literal meaning, and it is not necessary to file the complaint until on or before the first day of the term of court for which the action is noticed for trial, it would follow that a party could commence and maintain an action for a divorce on the ground of desertion three months, more or less, before the statutory period had expired, by withholding the complaint from the files for that length of time, and proving desertion for one year next before such filing. Manifestly, such is not the meaning of the statute, which assumes that the complaint will be filed at the time the action is commenced; for the proposition is unthinkable that an action for divorce may be commenced before there is any cause of action, and before it can be possibly known that there ever will be one. Our construction of this statute is that a party, in order to entitle himself to a divorce on the ground of desertion, must allege and prove wilful desertion by the defendant for one full year next before the commencement of the action. The complaint in this case was verified, and the summons issued, on January 17, 1898, and they were served on the defendant eight days thereafter. This action, then, was commenced not later than January 25, 1898, and the plaintiff, to maintain it, was bound to prove that the defendant wilfully deserted him on or before January 25, 1897.
To constitute wilful desertion, within the meaning of the statute, the going away and refusing to return by the accused party must be without justifiable cause therefor. Counsel for the plaintiff, however, claim that no misconduct of one party to the other will justify a breaking off of cohabitation, and prevent it being wilful desertion, except ill conduct of a kind and degree which would legally entitle the party to a divorce. "So," they say, "the question narrows down to whether the evidence in this case required a finding that the defendant was entitled to a divorce upon the ground of cruel and inhuman treatment." If the law be as claimed by counsel, their conclusion is logical.
Whether the misconduct of one of the parties to a marriage, which will justify the other in leaving, must be such conduct as could be made the foundation of a judicial proceeding for a divorce, is a question upon which there is not unanimity of authority. Mr. Bishop maintains that, on principle, the misconduct must be such as to entitle the injured party to a divorce. 1 Bishop, Mar. & Div. §§ 795-799. The basis of his opinion, briefly stated, is that it is the general policy of the law to keep the parties as much as possible together, and that their separation is not to be tolerated for light causes, and that all causes are light which the law does not recognize as ground for the dissolution of the marriage. We agree with the learned author as to the policy of the law. Its policy ought to be to discourage lax views as to the dissolution of the marriage contract. But it seems to us that any rule which will permit the husband to enter upon a course of conduct towards his wife which is humiliating, insulting, and degrading, and thereby drive her from him (unless she be a stolid and spiritless animal, with no wants or aspirations above physical comfort), and at the expiration of a year come into court and claim a divorce on the ground of her wilful desertion, if his misconduct does not legally entitle her to one, tends directly to the degradation of womanhood, and enables him to take advantage of his own wrong. Such a rule or doctrine undermines the sacredness of the marriage tie, facilitates its dissolution, and defeats the wise policy of the law upon which the rule is supposed to be based.
On principle, and what seems to be the weight of authority, we hold that the misconduct of one of the parties to the contract of marriage, which will so far justify the injured party in leaving that the separation will not constitute wilful desertion, need not necessarily be such as to entitle the injured party to a divorce. It is sufficient if the party withdrawing from the cohabitation has reasonable grounds for believing, and does honestly believe, that, by reason of the actual misconduct of the other, it cannot be longer continued with health, safety, or self-respect. Wilful desertion, in such a case, does not begin until after the offending party has in good faith exhausted all reasonable efforts to right the wrong, and to satisfy the injured spouse that there will be no recurrence of the causes which induced the separation, nor until after the lapse of a reasonable time for a consideration of the overtures for a reconciliation. 9 Am. & Eng. Enc. 777; Hardin v. Hardin, 17 Ala. 250; Lyster v. Lyster, 111 Mass. 327; Bradley v. Bradley, 160 Mass. 258, 35 N.E. 482; Thorpe v. Thorpe, 9 R.I. 57; Cornish v. Cornish, 23 N.J.Eq. 208; Gillinwaters v. Gillinwaters, 28 Mo. 60. If the rule we have indicated be enforced, there will be fewer divorces on the ground of desertion, and more husbands and wives abiding together.
The question for our decision is, then, not whether the evidence was such as to require a finding that the plaintiff was guilty of such misconduct towards the defendant as would entitle her to a divorce upon the ground of cruel and inhuman treatment; but the question is, does the evidence, when tested by the rule we have stated, justify the trial court's finding that the defendant wilfully deserted the plaintiff one year next before the commencement of this action? The details of the married life of the parties, and the causes which led to their separation are neither inviting nor inspiring, and we shall refer to the evidence only so far as seems to be necessary to indicate the basis of our conclusion that the finding is not sustained by the evidence. The answer, in addition to the allegations as to the general misconduct of the plaintiff towards the defendant, specifically charges that the plaintiff, at the time of the marriage of the parties, had a...
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