Summers v. Summers

• Decision Date: 19 December 1912
• Docket Number: 22,231
• Citation: 100 N.E. 71,179 Ind. 8
• Parties: Summers v. Summers
• Court: Indiana Supreme Court

100 N.E. 71

179 Ind. 8

Summers v. Summers

No. 22,231

Supreme Court of Indiana

December 19, 1912

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by Catherine Summers against Rollo H. Summers. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1908, Acts 1901 p. 565.)

Reversed.

Frank S. Roby, Ward H. Watson and J. K. Marsh, for appellant.

E. C Hughes, for appellee.

OPINION

Morris, J.

Action by appellee against appellant, her husband, for support, by reason of alleged desertion, under the provisions of § 7869 et seq. Burns 1908, § 5132 R. S. 1881.

There was a judgment for appellee, from which appellant appealed to the Appellate Court, which has transferred the cause to this court under the provisions of § 1394 Burns 1908, Acts 1901 p. 565, with the recommendation that the case of Stanbrough v. Stanbrough (1878), 60 Ind 275, be overruled. From the opinion of the Appellate Court, in transferring the cause, it appears that that court concluded that the judgment of the trial court should be affirmed, but that the opinion of this court in Stanbrough v. Stanbrough, supra, precluded such affirmance by it.

The record shows that appellee actually left appellant, but the Appellate Court is of the opinion that the husband's misconduct compelled appellee to leave him, and concludes that if the doctrine of constructive desertion be invoked appellant was guilty of deserting his wife, within the meaning of the statute.

The statute provides that "A married woman may obtain provision for the support of herself * * *: Where the husband shall have deserted his wife, * * * without cause, not leaving her * * * sufficient provision for her * * * support." § 7869 Burns 1908, § 5132 R. S. 1881.

In Stanbrough v. Stanbrough, supra, this court construed the act of 1857 (Acts 1857 p. 94, §§ 7876-7878 Burns 1908, §§ 5139-5141 R. S. 1881), which, in so far as the question of desertion or abandonment is concerned, is similar to the statute under which this action is prosecuted. In its opinion in that case the court used the following language: "Abandonment, in the sense in which it is used in the statute under which this proceeding was commenced, may be defined to be the act of wilfully leaving the wife, with the intention of causing a palpable separation between the parties, and implies an actual desertion of the wife by the husband. To show, therefore, that a wife had to leave her husband for cause, does not make out a case of abandonment by the husband, under this statute."

The doctrine of constructive desertion is recognized in many jurisdictions, by holding that where either spouse, by misconduct or cruelty, drives the other away, the former, not the latter, is guilty of desertion. Jones v. Jones (1891), 95 Ala. 443, 11 So. 11, 18 L. R. A. 95; Hall v. Hall (1903), 25 Ky. L. Rep. 1304, 77 S.W. 668; Harding v. Harding (1864), 22 Md. 337; McVickar v. McVickar (1890), 46 N.J. Eq. 490, 19 A. 249, 19 Am. St. 422; Waltermire v. Waltermire (1888), 110 N.Y. 183, 17 N.E. 739; M'Dermott's Appeal (1844), 8 Watts & S. (Pa.) 251; Hudson v. Hudson (1910), 59 Fla. 529, 51 So. 857, 138 Am. St. 141 and note, 29 L. R. A. (N. S.) 614 and note, 21 Ann. Cas. 278; Johnson v. Johnson (1888), 125 Ill. 510, 16 N.E. 891; Setzer v. Setzer (1901), 128 N.C. 170, 38 S.E. 731, 83 Am. St. 666; Sisemore v. Sizemore (1889), 17 Ore. 542, 21 P. 820; 14 Cyc. 613.

It is held in many jurisdictions that such misconduct, however, must be such as, in itself, constitutes a ground for divorce. Lynch v. Lynch (1870), 33 Md. 328; Weigand v. Weigand (1887), 42 N.J. Eq. 699, 11 A. 113; Sowers's Appeal (1879), 89 Pa. 173; 14 Cyc. 614.

There can be no desertion, under any doctrine, where the separation is founded on the mutual consent of the parties. Desertion implies a want of consent, an unwillingness, on the part of the complaining spouse. Barnett v. Barnett (1901), 27 Ind.App. 466, 61 N.E. 737.

Whether this court should, with propriety, consider the recommendation of the Appellate Court with regard to the case of Stanbrough v. Stanbrough, supra, depends on the facts disclosed by the record here, for unless such facts disclose a desertion on the part of appellant, under the constructive doctrine, it is neither necessary nor proper that such recommendation be considered.

Appellant filed a motion for a new trial, which averred the insufficiency of the evidence to support the decision of the trial court, and the action of that court in overruling such motion is here assigned as error. The evidence is set out in the bill of exceptions, in narrative form, and the part of it in anyway relating to the question of desertion is as follows: Appellee testified as follows: She and defendant were married on January 28, 1908. "Maiden name Catherine Crider. We lived with his mother in the town of Solon as one family. My husband was a general merchant and postmaster there. I left him September 2, 1908, because of his advice. He told me he did not want me and didn't intend to live with me. He told me to go home that he did not want to live with me, that he was going with other women. He told me often that he was going with other women, and did not care for me. Told me these things in the presence of his mother and sister. He refused to go any place with me. Had been telling me that before and didn't care for me. Father lived about two and one half miles from Solon, and when I left him I went to father. He [the defendant] has given me nothing since separation. * * * I lived with my father ever since I left. I left him. Couldn't stay any longer. When I left I took a cow and three pigs, cow worth $ 32, hogs worth $ 12. * * * After I left him he met me on the road and did not speak to me. * * * My husband would go to parties in the neighborhood, and when he returned would speak of having a good time with the girls there." Mrs Summers, mother of appellant, gave the following evidence: "I am the mother...