Underwood v. Underwood

• Decision Date: 07 March 1921
• Docket Number: 3421.
• Citation: 271 F. 553
• Parties: UNDERWOOD v. UNDERWOOD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

271 F. 553

UNDERWOOD v. UNDERWOOD.

No. 3421.

United States Court of Appeals, District of Columbia.

March 7, 1921

Submitted February 8, 1921.

Appeal from the Supreme Court of the District of Columbia.

Paul V Keyser, of Washington, D.C., for appellant.

R. C Thompson and John E. Laskey, both of Washington, D.C., for appellee.

VAN ORSDEL, Associate Justice.

Appellee Margaret L. Underwood, brought this suit in the Supreme Court of the District of Columbia against her husband, Lineas D Underwood, for divorce a mensa et thoro.

The parties were married in 1899. A son was born in 1902. In 1913 appellant left his wife, but through her friends and the intervention of relatives a reconciliation was effected. It is conceded that things moved along harmoniously for a year or a year and a half thereafter. In August, 1916, appellant again left his wife, and has since refused to live with her. Indeed, he testified in the present case that he intended, when he left appellee, that the separation should be permanent.

We deem it unnecessary to review the facts adduced at the trial below. The record fails to establish any justification for appellant's desertion of his wife. Proof of ill temper on the part of the wife and differences over financial matters are not sufficient to justify the husband in abandoning his wife. Appellant also contends that appellee denied him matrimonial intercourse. This is denied by the wife. However, if this were true, the wife's denial to the husband of matrimonial intercourse is not, of itself, ground for divorce in this jurisdiction. Steele v. Steele, 1 McArthur, 505.

It is settled in this jurisdiction that acts justifying desertion must be such as would support a decree for divorce. Hitchcock v. Hitchcock, 15 App.D.C. 81. It is clear that appellant has established no such treatment by his wife as would bring him within the rule.

It is contended, however, that appellee is without standing, since she took no steps to induce appellant to return or made any offer to go to him. It is apparent from the record that such efforts would have been unavailing. When appellant left, he deliberately notified his wife that under no circumstances would he live with her, that he had ceased to love her, and that 'he could not bear to touch her. ' Under these circumstances, there was no duty devolving upon the wife to use her efforts to terminate the desertion. Where, as here, the wife has not procured, consented to, or connived at the separation, she is under no...