Hardenbergh v. Hardenbergh

Cope, J. delivered the ojiinion of the Court—Baldwin, J. and Field, C. J. concurring. This is a suit for a divorce on the ground of desertion. The parties were married in 1836, in the State of New Jersey, where they subsequently resided until 1849, when the plaintiff came to California. It appears that he returned to New Jersey in 1852, for the purpose, ostensibly, of removing his family, consisting of the defendant and three children, to this State; but he avers that the consent of the defendant to such removal could not be obtained, and that he was consequently defeated in the accomplishment of this purpose. This is substantially the cause of action as stated in the complaint; and it is alleged that a separation of the parties immediately ensued—the defendant remaining in New Jersey, where she still resides, and the plaintiff returning to this State. The husband, being the head of the family, and bound for its support and maintenance, may change the matrimonial domicil at pleasure, and it is the duty of the wife to submit to the reasonable exercise of this right. We have no doubt that the refusal of the wife to accompany the husband upon a change of his residence, followed by an actual cessation of matrimonial [657] cohabitation, and unattended by any excusing or explanatory circumstances, would constitute sufficient evidence of desertion to authorize a divorce. We do not see upon what principle a different rule could be maintained, for whether the wife abandon the residence of the husband, or refuse to follow him. upon a change of his residence, the result, in fact, is the same, and the legal consequences should be the same also. If the determination of this case rested upon the question of the sufficiency of such evidence to establish the fact of desertion, we should have no hesitation in granting to the plaintiff the relief which he asks. But our opinion is that the case docs not present this question. Bishop, in his work on Marriage and Divorce, (Section 506,) says: “ The offense of desertion is obviously composed of two ingredients, namely: 1st, an actual cessation of the matrimonial cohabitation between the parties, and, 2d, an intent to desert, in the mind of the party offending. Both must combine to make the offense complete. But it- is wholly immaterial whether the distance to which the parties remove from each other be great or small, except, perhaps, as illustrating, under circumstances, their intent; for the criterion in all cases is the intent to abandon.” It does not sufficiently appear that the defendant intended to desert. It is shown that the plaintiff, on the occasion of his return in 1852, frequently stated that it was not his intention to remove her to this State, and that the unsettled condition of society here rendered it an inappropriate place for the residence of a lady. These statements were made in some instances to the defendant herself, and in others to the friends and associates of the family under such circumstances that they must have come to her knowledge. It appears that, a few days prior to his departure she expressed a willingness to accompany him, and that he objected upon the ground that her preparations for the journey would necessarily involve delay. The intercourse of the parties during this period seems to have been of the most pleasant and agreeable character. The witnesses unite in saying that their treatment of each other was at all times kind and affectionate. We think the circumstances were sufficient to authorize the [658] defendant to regard any proposition for her removal, as a proposal addressed merely to her discretion, and which she could reject without incurring the penalty or even suspicion of desertion. She could not have supposed that her conduct would be regarded as a renunciation of her conjugal rights, or subject her to the legal consequences of a willful abandonment of her matrimonial duty. Under the circumstances, if the plaintiff intended to visit upon her the penalty of disobedience, he should have presented to her, in plain and unequivocal terms, the alternative of a compliance with his wishes, or a surrender of all her claims to his support and protection. It is unnecessary to pursue the case further. The facts disclosed by the record are not sufficient to entitle the plaintiff to the relief which he asks, or any relief whatever. The judgment of the Court below, granting a divorce from bed and board, must be reversed, and the complaint dismissed. Ordered accordingly.