Williams v. Williams
Decision Date | 12 March 1928 |
Docket Number | Civil 2631 |
Citation | 33 Ariz. 367,265 P. 87 |
Parties | JOHN H. WILLIAMS, Appellant, v. MATTIE L. WILLIAMS, Appellee |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Affirmed.
Mr Earl Anderson, for Appellant.
Mr Edw. J. Flanigan, for Appellee.
On April 21st, 1926, John H. Williams brought this action to obtain an absolute divorce from Mattie L. Williams, his wife alleging that the latter had wilfully deserted him on or about April 10th, 1925; also, that defendant had been guilty of excesses, cruelty and outrages towards plaintiff. To this complaint the defendant filed an answer, pleading in bar to plaintiff's cause of action a judgment of separation from bed and board entered in her favor on December 18th, 1924, upon the grounds of desertion and cruelty. The cause was tried to the court without a jury, and upon its conclusion judgment was rendered in favor of defendant.
The question is whether the defendant, who was living separate and apart from plaintiff from December 18th, 1924, under a decree of the court, could be guilty of wilful desertion. It is the contention of plaintiff that she could, and upon such assumption he attempted to prove at the trial a good-faith offer of reconciliation on his part. The rejection of such offer is the basis of the only assignment that requires attention. It is contended that, notwithstanding defendant was living separate and apart from plaintiff in pursuance of a judgment of the court, her refusal to be reconciled amounted to a desertion from the date of the refusal and ripened into a cause of action in favor of plaintiff when continued for the statutory period of one year, as in this case.
Under the laws of this state, divorces are of two kinds. The husband or wife, upon proper statutory grounds, may be granted an absolute dissolution of the marriage bond. The decree in such a proceeding frees them from the bonds of matrimony and all marital obligations to each other. In addition to this remedy, open to both the husband and the wife, the wife, when grounds exist that would entitle her to an absolute divorce, may, if she desires the continuance of the marital relation, be freed from the obligation of cohabitation by securing a decree of separation from bed and board. In the latter case the decree may be forever or for a limited time. Par. 3874, Civ. Code 1913. This is the ecclesiastical or common-law decree of divorce a mensa et thoro. The decree interposed as a bar to the present action was of this kind. It provided for a separation from bed and board forever, and directed the plaintiff to pay defendant alimony at the rate of one hundred dollars a month, but it did not dissolve the bonds of matrimony. The status of the parties as married people remained the same, with the exception that the wife was freed from the obligation of living with her husband, and such freedom was to continue "forever" unless there should take place a change of heart and mind of the parties as provided in paragraph 3879, Civil Code, which reads as follows:
"Upon a joint application of the parties, and satisfactory proof of their reconciliation, the court granting any decree of separation may revoke the same, under such regulations and restrictions as it shall prescribe."
Under this statute, it is not sufficient that the delinquent or guilty husband shall have repented and offered to amend his life. No independent action on his part is contemplated or authorized to secure a revocation of the decree. Nothing short of a reconciliation of the parties, satisfactorily shown to the court upon a joint application, can nullify the decree of separation from bed and board, and as long as the decree exists the wife may live apart from the husband and not be guilty of wilful desertion. Her act of living apart from him is under and by virtue of a decree of a competent court; it has the sanction of law, whereas wilful desertion is not only a violation of the marriage vows, but a wrong against society. It may seem that this penalty inflicted on a husband whose wrongful conduct towards his wife has compelled her to seek redress in the courts of the land, especially after he has repented and sought a reconciliation, is more severe than is necessary or expedient, but it should be remembered that he brought it on himself; that if he had not first deserted his wife the separation from bed and board could not have been obtained by her on that ground.
What was said in Boger v. Boger, 86 W.Va. 590, 104 S.E. 49, is expressive of our conviction of the law:
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