Tillis v. Tillis

• Decision Date: 01 March 1904
• Court: West Virginia Supreme Court
• Parties: TILLIS . v. TILLIS.

46 S.E. 926

55 W.Va. 198

TILLIS .

v.TILLIS.

Supreme Court of Appeals of West Virginia.

March 1, 1904.

DIVORCE—DESERTION—EVIDENCE—ADMISSIONS.

1. It requires willful desertion to warrant a divorce from the bond of matrimony. Willful desertion is a breach of matrimonial duty, and is composed, first, of a breaking off of matrimonial cohabitation; and, second, an intent in the mind to desert. Both must combine to make the desertion complete. Noncohabitation alone is not desertion.

¶1. See Divorce, vol. 17, Cent. Dig. §§ 107, 108.

2. To authorize a divorce for willful desertion, the plaintiff bears the burden of proof, and the evidence of such desertion must he full and clear.

3. Whether admissions are competent evidence on which to ground a divorce or not, they are competent evidence to defeat a divorce.

(Syllabus by the Court.)

Appeal from Circuit Court, Mason County; P. A. Guthrie, Judge.

Bill by Smith Tillis against Mary A. D. Tillis. Decree for plaintiff, and defendant appeals. Reversed.

W. A. Parsons, Hogg & Kerwood, and W. M. Duffy, for appellant.

J. E. Neller, for appellee.

BRANNON, J. This is an appeal from a decree from the circuit court of Mason county granting an absolute divorce to Smith Tillis from his wife, Mary A. D. Tillis, upon a bill filed by him charging her with abandonment, from which decree she has appealed.

It is at once enough to reverse the decree to say that the evidence fails to show a material element; that is, willful abandonment It is of the very core of such a case to show, not merely that the wife went away from home, as that is only one element or circumstance of the case; but it must be shown that she ceased cohabitation with willful design and intent to desert her husband. Both facts must be shown. Willful desertion cannot be inferred from the fact that the parties do not live together. Mere cessation of cohabitation is not enough. Burk v. Burk, 21 W. Va. 445. The words of the Code of 1899, c. 64, § 5, giving this cause of divorce, gives it "where either party willfully abandons or deserts the other for three years." This shows there must be intent to finally desert. I may fairly say that the plaintiff's case rests only on his own evidence, and that is too short. He says that they lived together in Mason county, but had not lived together for four years and, being asked why, he answered, "Because I considered it an utter impossibility, on account of the disposition and temper of the woman, to live together agreeably." The question was then propounded, "Do I understand by your answer that she has abandoned and deserted you?" He answered, "Yes, sir. She left Mason county in November, 1898, and moved her goods and chattels to Jackson county." Now, this shows rather, from his own lips, that he abandoned her than that she abandoned him. At any rate, it utterly fails to show willful, intentional abandonment giving it the most favorable construction for the plaintiff. His evidence shows merely his assertion that his wife had abandoned him, his mere opinion of the character of her actions, without facts and circumstances to explain why she went to Jackson county, or give cast to her act in so doing. Why she left he does not say, nor for what cause. Perhaps his wrong caused her to leave. He ought to show that she did wrong in leaving, and make her act unjustifiable, and vindicate himself from blame. His failure as a witness to do so is significant There is absolutely no evidence given by the plaintiff to show willful design to desert. His case signally fails to show this cardinal element. It does show that she left home, and moved to Jackson county, and there resided. It does show a cessation of matrimonial cohabitation; but willful abandonment is not shown, and that is the very cause on which alone the statute grants the divorce. The law and moral and religious sentiment of the country do not favor divorce, and, as Judge Johnson said in Burk v. Burk, "The bonds of matrimony should never be dissolved, unless for the most cogent legal reasons made clearly to appear." Pull proof is required. 2 Bishop on Marriage, Divorce and Separation, § 762. Turning to the evidence of the defendant, she swears that when she was sick, and was merely able to sit up when helped to a chair, her husband told her that he was going to Sayre's after his son, to get him back in school, leaving her with not over a gallon of flour and not over two gallons of meal, and some eight or ten bushels of corn in the ear, and without a bit of lamp oil for light and when she could not wait on herself. He said he...