Syllabus
by the Court.
Under
the Civil Code of 1910, § 2945, subd. 7, willful and
continued desertion by either of the parties for the term of
three years will authorize the granting of a total divorce.
The allegations of the petition as set out in the first
division of the opinion, based on the ground of desertion
are sufficient to withstand a demurrer on the ground that the
plaintiff should have alleged in addition that he was denied
by the defendant his conjugal rights "with the intention
of casting him off as a husband completely and forever."
Under
the Civil Code of 1910, § 2946, where a libel for divorce is
brought on the ground of cruel treatment, the jury in their
discretion may grant either a total or partial divorce.
(a)
Cruel treatment as a ground for total divorce in this state
"is the willful infliction of pain, bodily or mental
upon the complaining party, such as reasonably justifies an
apprehension of danger to life, limb, or health."
(b) The
allegations of the petition on the ground of cruel treatment
set out a cause of action, and the court properly overruled
the demurrer.
Error
from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Action
by Charles G. Wilkinson against Irene S. Wilkinson. Judgment
for plaintiff, and defendant brings error. Affirmed.
Atkinson
and Gilbert, JJ., dissenting.
Alexander
Akerman, of Orlando, Fla., and Lewis A. Mills, Jr., of
Savannah, for plaintiff in error.
Leo A
Morrissy, of Savannah, for defendant in error.
HILL
J.
1.
Charles G. Wilkinson filed a libel for divorce against Irene
S. Wilkinson, alleging that she was a nonresident of the
state, and basing his petition upon two grounds, desertion
for over the term of three years, and cruel treatment. The
allegations of the petition as to desertion were as follows:
"That petitioner and the said defendant lived together
as husband and wife until on or about the 15th day of
September, 1918, when on said last-named date, and more than
three years before the filing of this petition, the said
defendant without just cause willfully deserted your
petitioner and from the time of said desertion continuously
persisted in the same and resided separate and apart from
him. That the desertion aforesaid consists in the following
acts of omission and commission: While petitioner and his
said wife resided under the same roof, from said
last-mentioned date, to wit, on or about September 15, 1918
they occupied separate bedrooms, and said defendant has
persistently and continuously declined to accord to
petitioner his conjugal rights; that during the period
aforesaid, to wit, for more than three years prior to the
filing of this petition, the said defendant has willfully and
persistently and without justification denied to petitioner
his conjugal rights, so that while petitioner and the said
defendant had resided up until about the 4th day of January,
1922, under the same roof, they have in fact and in truth
been absolutely separated, owing to the desertion of
petitioner by said defendant, as herein set out. That for the
past 20 months, to wit, since the 4th day of January, 1922,
petitioner and defendant have not resided under the same
roof, defendant having removed to and being at the present
time making her home in Jacksonville, Fla. That plaintiff has
been without fault in the premises, has been ready and
willing and able at all times to perform all his duties
towards his said wife, and has given her no just cause for
said desertion."
The Civil Code of 1910, § 2945, subd. 7, provides that
"willful and continued desertion by either of the
parties for the term of three years" shall be sufficient
to authorize the granting of a total divorce. It is insisted
by the plaintiff in error that the allegations in the
petition do not constitute desertion within the meaning of
the Code section above cited, as they do not contain any
allegation to the effect that the plaintiff in error deserted
defendant in error "with the intention of casting him
off as her husband completely and forever." Plaintiff in
error cites in support of her contention Whitfield v.
Whitfield, 89 Ga. 471, 15 S.E. 543. This court held in
that case:
"Within the meaning of the law of divorce (Code, §
1712), it is desertion by the wife, though she continue to
reside in the matrimonial domicile, for her willfully,
persistently and without justification to deny her husband
all his conjugal rights with the intention of casting him off
as a husband completely and forever. The continuance of this
state of affairs for three years affords cause of divorce on
the ground of desertion, whether the husband remains in the
matrimonial domicile occupying separate apartments from his
wife, or withdraws from the house and lives elsewhere,
provided her conduct be contrary to and against his will, and
provided his own conduct be the result of hers and to that
extent involuntary on his part. 1 Bishop, Mar. Div. & Sep. §
1670 et seq.; Lloyd's Law of Divorce, pp. 170, 173;
Browne on Divorce, 142 et seq.; 4 Field's Briefs, §§ 218,
221; 5 Am. & Eng. Enc. Law, 802, note 1, 803; and cases
cited. The court erred in granting a nonsuit."
Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73.
Under
the allegations of the present petition, the defendant
willfully and continuously deserted the plaintiff for the
term of three years, which, under the section of the Code
cited, is a good ground for divorce in this state. The Code
plainly declares that the willful and continued desertion by
either of the parties for the term of three years is
sufficient to authorize the granting of a total divorce. The
question is, under the allegations of the petition, Has the
desertion continued willfully for the term of three
years? If it has, and petitioner alleges and proves that
fact, he is entitled to a total divorce; and that is what the
petition in the instant case does allege.
We are
of the opinion that where the petition alleges that the
defendant has persistently and continuously declined
to accord plaintiff his conjugal rights, and that for more
than three years prior to the filing of the petition the
defendant willfully and persistently and
without justification denied to petitioner his
conjugal rights, etc., these allegations are sufficient to
withstand a demurrer which attacks the petition on the ground
that it is not alleged that the denial of plaintiff his
conjugal rights was "with the intention of casting him
off as a husband completely and forever." The
authorities cited in the Whitfield Case to support the
above-quoted language do not go to the extent of using that
identical language. Thus, in 1 Bishop, Mar., Div. & Sep. §
1670, cited in the Whitfield Case, it is said:
"As stated in a previous subtitle, the desertion of the
matrimonial law, considered apart from what may justify it,
consists of a cessation of the cohabitation, and combined
with it the wrongdoer's intent to desert the other."
And in
the preceding subtitle (sections 1662, 1663, 1664) it is
said:
"In the nature of matrimony, and in harmony with the
established principles of our jurisprudence, desertion as a
matrimonial offense is the voluntary separation of one of the
married parties from the other, or the voluntary refusal to
renew a suspended cohabitation, without justification either
in the consent or the wrongful conduct of the other. It has
the following elements: Its affirmative natural elements are
two, the cohabitation ended, and the offending party's
intent to desert. The statute creates a third element, the
lapse of a defined period of time. Negatively, it must be
without legal justification, and without a breach of the
continuity which the statute renders essential. Statutes in
special terms may create modification of these propositions,
but ours do not generally. Statutes unlike in phraseology,
and to the casual view dissimilar in meaning, are often when
interpreted found to be identical in their results in law. We
saw something of this in connection with the cruelty
statutes. And it is so with various differently worded
enactments making desertion a ground for divorce. For
example, a clause providing divorce for desertion without
justifiable cause does not differ from one giving this remedy
simply for desertion; for when the latter is interpreted by
the unwritten rule, it is seen not to apply to a blameless
going away; that is one for justifiable cause. And a
provision giving this remedy for willful desertion is an
equivalent for the same without the word 'willful';
for by the unwritten rule that would not be desertion to
which the will did not consent," etc.
Again
in Lloyd's Law of Divorce, 170, it is said:
"There must be a willful and deliberate intention, on
the part of the party leaving the other, not only to leave
but to cease cohabitation permanently," citing
Bennett v. Bennett, 43 Conn. 313; Ruckman v.
Ruckman, 58 How. Prac. 278; Meldowney v.
Meldowney, 27 N.J.Eq. 328. "And this intent must be
followed by actual cessation of cohabitation for the
statutory period" (italics ours), citing
Holston v. Holston, 23 Ala. 777; Conger v.
Conger, 13 N.J.Eq. 286. "In filing a petition for
divorce on the ground of desertion, care should be taken to
follow the language of the statute as far as may be, that the
case may be shown to come clearly within the provisions
thereof." Id. "The duration of the
desertion must
continue uninterruptedly for the statutory period."
Id. 172. "Refusal to renew cohabitation is
desertion." Id. "Desertion can occur where
the parties continue to dwell under the same roof."
Id. "To cohabit is to dwell together. So that
matrimonial cohabitation is the living together of a man and
woman ostensibly as
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