Birmingham v. O'Neil

LAND, J. This is a suit for separation of bed and board on the ground of abandonment. .Defendant denies that he has ever abandoned his wife, and avers his readiness to receive and support her, if she will return to the matrimonial domicile. Plaintiff is and has been for a long time living with her mother, and defendant is and has been for the same length of time living with his mother, and has had the custody of the two children of the marriage. The charge of abandonment is based on the theory that the matrimonial domicile was fixed at the home of defendant’s mother-in-law, and that the refusal of the husband to abide there with his wife constituted abandonment. As a matter of fact defendant has never lived in the house of his mother-in-law, and therefore her home cannot be considered as the matrimonial domicile. The husband has the exclusive right to select the matrimonial domicile, and the duties of both parties are prescribed by law as follows: “The wife is bound to live with her husband and to follow him wherever he chooses to reside ; the husband is bound to receive her, and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.” Civ. Code, art. 120. Judgment affirmed. NICHOLLS, J., absent.