Taxlory v. Taylor
| Decision Date | 10 May 1929 |
| Docket Number | No. 27263.,27263. |
| Citation | 177 Minn. 428,225 N.W. 287 |
| Parties | TAXLORY v. TAYLOR. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; Hugo Hanft, Judge.
Action for divorce by Frederick L. Taylor against Estella I. Taylor. From an order denying his motion for a new trial, plaintiff appeals. Affirmed.
Syllabus by the Court
Under the circumstances stated in the opinion, plaintiff's evidence, in an action for divorce on the ground of willful desertion, failed to establish desertion arising out of the wife's qualified refusal to live with him while depending upon the benevolence of his father.
The evidence fails to establish cruel treatment.
The record is insufficient to establish any prejudicial bias of the trial judge. Edgerton, Dohs & Edgerton and Fred L. Doud, all of St. Paul, for appellant.
Davis, Severance & Morgan, of St. Paul (North, Parker, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, Wis., of counsel), for respondent.
Plaintiff appealed from an order denying his motion for a new trial. The action is for divorce on the ground of desertion and cruel treatment.
The parties were married in 1916. They have two children. The wife had $3,500 and household furniture. The first year was spent in Minneapolis. Then they moved to St. Paul into a house financed with her money. The wife later inherited about $1,000. The husband worked for his father in a manufacturing plant for about $125 per month. In 1919 they sold the house netting them about $2,000 and moved the Seymour, Wis., where the money was invested in an automobile business with the wife's uncle. There the husband drew about $150 per month. In February, 1920, he sold, receiving $2,500. He then took the local agency for the Studebaker car and was unsuccessful. He next was unsuccessful in the operation of a gasoline filling station. The funds so furnished by defendant were exhausted. In July, 1921, they left their debts in Seymour, incurred for living expenses, unpaid and moved to Green Bay, Wis., where plaintiff engaged in the insurance business. He did not make expenses. Defendant took in roomers. She also pledged her jewelry for $500. There has been no redemption. At Green Bay plaintiff had various automobiles at different times, a Maxwell, a Jordan, a Rickenbacker, a Moon, and a Ford. His indebtedness increased. He owed apparently $3,000 to insurance companies for premiums on policies delivered. This item was apparently paid by plaintiff's father. Defendant was continually worried by creditors.
December 1, 1926, plaintiff left Green Bay and returned to St. Paul. He left his family in Green Bay with unpaid rent, grocery, and other bills. He returned to his family at Christmas and again in February, 1927. When he came to Minnesota on December 1, it was the understanding that he was to reestablish himself and demonstrate that he was able to support his family and then the family would come to him. But he did not succeed in St. Paul. He left an unsuccessful insurance business here and returned to his father, who put him on the pay roll apparently as a matter of gratuity. He has since remained with the father. He now owes his father $3,000 and owes $2,000 to others.
When plaintiff left Green Bay December 1, 1926, he left about $15 with his wife. He furnished her $10, $30, and $6 in that month. In January, 1927, he sent her $23; in February, $10; in March, $250, of which $175 was paid on past-due rent. Remittances then ceased. In the summer of 1927 the wife and children became destitute and their necessities were furnished by others. She sought and found work and has used reasonable effort to support herself and children.
In August, 1927, defendant caused plaintiff to be arrested on a charge of nonsupport. Then for six months defendant was paid $75 per month through plaintiff's attorney. He also sent her $30 extra in October, 1927.
Soon after December 1, 1926, plaintiff asked defendant to come to St. Paul with the children and live with him. She conditionally refused. She reminded him of his inability to support his family and insisted that he must demonstrate that he could do this and if so she would come and live with him. This request and conditional refusal were repeated. Plaintiff's father wrote letters to defendant urging her to come to St. Paul and live with plaintiff. The father also tendered financial help. The only trouble between plaintiff and defendant seems to be his shiftlessness and inability to support his family by his own efforts.
1. Plaintiff claims defendant is guilty of willful desertion because she did not come to St. Paul and live with him. It is clear that plaintiff was not meeting this own responsibilities by an aggressive assertion of his own activity. If there was shelter and sustenance in St. Paul for defendant and her children, it was due to the benevolence of the father. There was nothing to indicate how long this would continue. Ordinarily, perhaps the source of a husband's honorable income is not important. But here there was an unusual situation. Defendant's property which she had confidingly put in plaintiff's hands had disappeared. His efforts were frivolous and ineffectual. The wife and children were facing poverty. She seemed to be trying to get him to stand on his own feet. She wanted him to declare and establish his own independence and cease to depend on his father. Her position in view of the history of the case was not unreasonable.
The claim is that her refusal to come to Minnesota at plaintiff's solicitation constitutes a willful desertion giving grounds for divorce. The husband has the right to fix the domicile of the family. But there are circumstances in which the wife is justified in making a qualified refusal to acquiesce therein or consent thereto. Each case must stand on its own facts, and we will not attempt to state a rule applicable to all cases. Where a husband tenders a home, he must prove its reasonableness both as to place and mode of living. Here the wife's refusal was temporary only. It was conditional upon plaintiff showing aptitude and ability. A wife should not be subjected to the humiliation of having to rest her support upon the bounty of her husband's relatives. Nor should she be compelled to have her children grow up in that environment. Marriage anticipates an independent home, though it may be humble. In this case the wife has demonstrated her ability to work and sacrifice. She was asked to surrender the opportunity of making a living for herself and children and to apparently continue with no hope of improvement. Defendant has been subjected to much sorrow and neglect, and yet at the trial she made no charge against plaintiff but inefficiency. It is reasonable to infer that her absence from him is a forced and necessary one. Under the circumstances the evidence required a finding that the defendant was not guilty of willful desertion.
2. The charge of cruel treatment rests largely upon the fact that defendant caused plaintiff to be arrested for desertion and failure to support the children.
Upon the plaintiff's own statement he ceased...
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