Padelford v. Padelford

Morton, J. It was formerly provided that “ a divorce from the bond of matrimony may be decreed in favor of either party in all cases when one of the parties has deserted or shall hereafter desert the other for the term of five years consecutively; provided, that when the libel is filed by the party deserting, it shall appear that the desertion was caused by extreme cruelty of the other party, or in case the libel is filed by the wife, that the desertion was caused by the gross or wanton and cruel neglect to provide suitable maintenance for her by the husband, he being of sufficient ability so to do.” St. 1857, c. 228, § 2. This statute was re-enacted in the Gen. Sts. c. 107, § 7, as to divorces from the bond of matrimony. It did not apply, and never did, to divorces from bed and board. Prior to 1857 it had been provided that a divorce from the bond of matrimony in favor of either party might be decreed, when the other had deserted for five years. St. 1838, c. 126. This last statute was expressly held not to include a case where the libel was brought by the deserting party, and in which the desertion was caused by [283] the misconduct of the other party. Pidge v. Pidge, 3 Met. 257. Fera v. Fera, 98 Mass. 155. There can be no doubt that St. 1857, c. 228, § 2, was passed in consequence of the decision in Pidge v. Pidge, ubi supra. The St. 1870, c. 404, which made a material change in the divorce laws, apparently left the provisions of Gen. Sts. c. 107, § 7, still in force. In this situation, the law as it stands now was enacted providing simply for divorce for “ utter desertion continued- for three consecutive years next prior to the filing of the libel.” Pub. Sts. c. 146, § 1. We must regard the omission by the Legislature from the Public Statutes of the provisions formerly contained in St. 1857, c. 228, § 2, and in Gen. Sts. c. 107, § 7, permitting a libel to be brought in certain cases by the deserting party, as significant, and as manifesting an intention on its part not only to limit divorces for desertion to cases in which the libellant has actually been deserted by the other party, but to exclude cases in which the libellant was the deserting party, even though such desertion had been caused by the misconduct of the other party. The ruling sustaining the demurrer was, therefore, correct, and as it is decisive of the case there is no need to consider whether the judgment dismissing the former libel is a bar to this libel. Order dismissing libel affirmed. Exceptions overruled.