Summers v. Summers
| Decision Date | 21 June 1912 |
| Docket Number | No. 7,622.,7,622. |
| Citation | 98 N.E. 900 |
| Parties | SUMMERS v. SUMMERS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
On rehearing. Cause transferred to the Supreme Court.
For former opinion, see 98 N. E. 365.
Frank S. Roby, Ward H. Watson, and James K. Marsh, for appellant. Roby & Watson, for appellee.
This is an action by a wife against her husband for support. The errors assigned are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) overruling the motion for a new trial. A new trial was asked because: (1) The decision of the cause is contrary to law; (2) the decision is not sustained by sufficient evidence.
[1] It has many times been held that a complaint questioned for the first time after judgment will not be held insufficient if its averments are sufficient to bar another suit for the same cause of action and it does not wholly omit some essential fact necessary to support the judgment. Spitzmesser v. Spitzmesser, 26 Ind. App. 532-533, 60 N. E. 315;Oliver Type-Writer Co. v. Vance, 95 N. E. 327. Under the foregoing rule, the complaint, which is first questioned after judgment on appeal, is sufficient to state a cause of action under sections 7869 to 7871, Burns' 1908 Statutes, if the statute is liberally construed to advance the remedy, but, if the strict rule of construction is applied, the complaint is insufficient for failing to aver an actual desertion of appellee by appellant.
The complaint alleges, in substance: That appellant and appellee were duly married July 28, 1908, and lived together as husband and wife until February 17, 1909, when appellee was by the cruel and inhuman treatment of appellant forced to leave his home; that since that time they have not lived together as husband and wife; that for weeks before said separation appellant continuously demanded and insisted that appellee return to her father's home, frequently told her that he did not care for and would not live with her, and that he was keeping company with other women; that appellant's mother and sister lived in the house with them, and he frequently stated in their presence that he did not care for her; that he refused to buy her any clothing and would not go with her in public or society, though he frequently went alone, and on his return would tell appellee he had a fine time with other women; that appellee had $194.75 when she married appellant and delivered the same to him, and he has kept it; that she has asked him for the money, but he refuses to give it to her or any part thereof; that he has contributed nothing to her support since their separation; that appellant is a merchant, and his stock of goods is worth from $1,500 to $2,000, and derives from his business $100 per month; that he owns a one-third interest in the brick building where his store is situated, which building is of the value of $5,000; that he received $15 per month as postmaster of the town of Solon; that said property is unincumbered, and appellant is young, strong, and able to support his wife; that $10 per week is a reasonable sum for her support; that she has no property or means of support.
[2] The principal question presented upon both assignments of error relates to the question of desertion. The statute upon which the action is based (section 7869), as far as material here, reads as follows: “A married woman may obtain provision for the support of herself and the infant children of herself and husband, in her custody, in any of the following cases: First, where the husband shall have deserted his wife, or his wife and children without cause, not leaving her or them sufficient provision for her or their support.”
Appellant asserts that, as the complaint fails to aver an actual desertion of the appellee by appellant, it does not state a cause of action under the statute. The same question is raised by the second assignment of error on the alleged insufficiency of the evidence to show desertion. The evidence substantially sustains the averments of the complaint, and both assignments of error may be considered together.
Appellant contends that the case of Stanbrough v. Stanbrough, 60 Ind. 275, settles the question that desertion or abandonment, in order to come within the meaning of the statute, can be nothing less than an actual, physical desertion of the domicile of the married couple by the offending husband, leaving the wife, or wife and children, without sufficient means of support.
The complaint in the case at bar does not state a cause of action under this interpretation of the statute, for it proceeds upon the theory that by cruel and inhuman treatment, coldness, and neglect, the plaintiff was compelled to leave the house of her husband, and that by such alleged wrongdoing he, and not she, was the real deserter.
If the doctrine as announced in the Stanbrough Case, supra, is to be strictly applied to all cases under the statute of 1857, upon which that decision was rendered, and the statute of 1881, under which the case at bar was brought, then, in our judgment, the complaint in this case is insufficient, and the evidence which substantially follows the averments of the complaint is also insufficient. On the other hand, if what is sometimes known as constructive abandonment or desertion is within the meaning of our statute, then we may apply the rule as stated by Bishop, in his work on Marriage, Divorce & Separation, as follows: “It is immaterial which of the married parties leave the matrimonial home, the one who intends bringing the cohabitation to an end commits the desertion.” Volume 1, § 1710.
It has been held, by this and our Supreme Court, that this statute is remedial and entitled to a liberal construction to advance the remedy. Arnold v. Arnold, 140 Ind. 199-202, 39 N. E. 862;Comstock v. Brandon, 27 Ind. App. 475-479, 61 N. E. 686;State ex rel. v. Lannoy, 30 Ind. App. 335-337, 65 N. E. 1052.
Under the liberal rule of construction and the doctrine of constructive abandonment, this court, in Carr v. Carr, 6 Ind. App. 377, on page 385, 33 N. E. 805, on page 807, said:
The Carr Case was prosecuted under the statute we are now considering, and the wife recovered judgment which was affirmed with 10 per cent. penalty. The controlling facts of that case are similar to those of the one at bar, for in that case the wife was forced from the home of the husband by his villainous conduct. It was she, and not he, that left the home. In the case at bar the averments do not show the infamy that was chargeable to the husband in the Carr Case; but, if the averments of the complaint now under consideration are true, the treatment of the appellee was such as to show an utter disregard on the part of the husband of the marital relation and a species of cruelty and coldness that no self-respecting woman could or should endure.
Under the decisions of this and the Supreme Court, the complaint in the case at bar states a cause of action for divorce in favor of appellee on the ground of cruel and inhuman treatment, and this, under many authorities, justifies her in leaving the husband's domicile, and makes him, and not her, the deserter. Rice v. Rice, 6 Ind. 100-105; Spitzmesser v. Spitzmesser, supra; Massey v. Massey, 40 Ind. App. 407, 80 N. E. 977, 81 N. E. 732.
In the case of Barnett v. Barnett, 27 Ind. App. 466, 471, 61 N. E. 737, 738, which was a divorce suit involving the question of abandonment, this court said: “Upon the whole evidence, if it be not concluded, indeed, that the wife deserted the husband without sufficient provocation, the separation was effected and maintained by consent of the parties. In fact, the wife departed and remained away from the husband's domicile. Nevertheless, if she could be said to have had sufficient provocation, if she was in truth driven away against her wish by the unbearable ill treatment of the husband, it would be his desertion, or, as our statute calls it, abandonment. But to constitute a sufficient provocation for the departure of the wife with the purpose of permanently separating herself from her husband with a view to the dissolution of the marriage tie, the actual cause of such conduct on her part should be something which would be sufficient ground for a divorce. Oinson v. Heritage, 45 Ind. 73 .
This court, in Turner v. Turner, 26 Ind. App. 677, on page 682, 60 N. E. 718, on page 720, said: “In her refusal to follow him there may be an excuse for his failure to furnish her support; but the trial court, doubtless, in passing upon the question of abandonment, which is, as counsel for appellant say, largely a matter of intention, considered the reason of his separation from his wife.”
In the case of Porter, Trustee, v. Caylor et al., 146 Ind. 448, 45 N. E. 648, our Supreme Court had under consideration a suit upon a bond and mortgage, given in favor of a woman by Harry Caylor et al. in compromise and settlement of a bastardy suit, in which it was agreed that Harry Caylor should marry the woman and that he would faithfully keep his marriage vows and “live with and support and kindly treat the said Pearl M. Phipps, as his lawful, wedded wife for a full term of ten years unless prevented by death.” The complaint alleged the breach of the bond and sought to recover upon the instrument; but the proof showed that she left his home for cause and returned to the home of her parents. The trial court found for the defendant, and the Supreme...
To continue reading
Request your trial