Messenger v. Messenger

Napton, Judge, delivered the opinion of the court. This is a suit for a divorce, instituted in February, 1872, by the wife against the husband, on the.grounds of desertion, without a reasonable cause, for the space of one year, and of such cruel and barbarous treatment, on the part of her husband, as to endanger her life; and, for the further cause, that the defendant had offered such indignities to helas rendered her condition intolerable. The defendant denied all the allegations of the petition, and, asserting that his wife had deserted him, asks for a divorce on this ground. — 334 — The circuit court refused to grant either party a divorce, and the judgment is appealed from by both parties. In regard to the charge of cruelty and indignities made in the petition, nothing has been said in the argument here, it being conceded that the evidence does not sustain either of these charges, and the only ground relied on by the plaintiff or defendant is the alleged desertion. The facts in regard to the question seem to be very clear and scarcely disputable. The marriage took place in this city in 1865, the plaintiff having previously been a teacher in the public schools for several years, and the defendant being then engaged in business in New Orleans, apparently a prosperous one, yielding him an income of $8,000 a year. Immediately after the marriage, the parties to it, together with the mother of the plaintiff, who was without means, and dependent, on her daughter for support, went to New Orleans, and there continued to live until 1S68, about which time the defendant failed in business and became a bankrupt. In the meantime, oue child, a daughter, had been born, and the mother of the plaintiff had been furnished by the defendant with the means of making a visit to St. Louis, but had returned about the time of the birth of her daughter’s first-born* It seems from the evidence of both plaintiff and defendant, that during the residence in New Orleans there was some disturbance of that mutual confidence which the marital relation assumes, and which is seldom, if ever, destroyed, where it is based upon a mutual attachment. It is unnecessary to state the details of these controversies as they have no bearing upon the question of desertion. They merely show, that at the time of their leaving New Orleans, their domestic happiness was not without alloy.' In 1868, after the bankruptcy of the defendant, the plaintiff and defendant went to Illinois on a visit to the house of a friend of the wife, a Mr. Bliss, whose wife was an old aer quaintance and friend of Mrs. Messenger, and who was thought to have it in his power to give the defendant, Messenger, some aid in procuring him a means of support. Mr. Bliss — 335 — did propose to give Messenger a farm in the neighborhood, of which he had control, but accompanied his offer with a proviso that Messenger should treat his wife more kindly than he had done. Messenger, the defendant, declined the proposal, and came down to St. Louis to seek employment. From this place he wrote repeated letters to his wife, begging her to come down and live with him, but she declined. The excuse alleged was that Messenger, the husband, had no house in St. Louis, and that she was expecting'to be confined, and that she was comfortably provided for'where she was. After the birth of her second child, the plaintiff came to St. Louis and found employment'as'a teacher in the public schools at a salary sufficient to support herself, her mother and her children. The defendant visited her and again begged her to live with him, but she persistently declined. Finally, in November, 1869, the plaintiff agreed to live with defendant if he would pay certain debts of hers, and he did pay a portion of them, but in February, 1870, she retracted and refused to live with him. After a controversy had arisen in the courts here in regard to the custody of the children, Mrs. Messenger wrote a letter to her husband offering to live with him, but Mr. Messenger treated the letter as a device to prevent the intended suit for divorce, and therefore paid no attention to it, returning no answer, except verbally. Upon these facts, about which there is no dispute, it is perfectly clear that the plaintiff has no claim for divorce on the ground of desertion. There is no evidence of any desertion, unless we adopt the opinion, that the wife has the right to dictate to her husband where he shall live and what employment he shall assume, and that the poverty of the husband is a valid excuse to the wife for declining to live with him. We have never understood the marital relation in this way.' We have supposed it was the duty of the wife to live with her husband and abide by his fortunes in sickness and health, in' poverty and riches, to make his will her law, where it is not in conflict with the law of God. — 336 — The humiliating proposal of Mr. Bliss was properly declined. There is no ground whatever for a divorce on the part of the plaintiff, but there is very clear evidence that the defendant is entitled to a divorce on the ground of his wife’s desertion of him for more than one year. The letter of November 26, 1870, 'is plainly the result of a scheme to prevent a suit by defendant, and so it was regarded by Judge Woerner, who was the referee in the case. It is clear that the plaintiff has for five years persistently declined to live with her husband. Whether he had the means of providing her with an establishment suited to her views, is, in our opinion, of no importance. The case of Gillinwaters vs. Gillinwaters, 28 Mo., 61, is relied on to show that the husband must offer the wife a suitable residence in order to require her to return, but that was a case in which the husband was seeking a divorce on the ground of desertion, and Judge Scott, who was very much opposed to divorces, was impressed with the idea that the husband who sought the divorce, brought about the condition of affairs which required the wife’s absence. He observes, that the “disposition of his property seems to have been made with a view to effect the very object he has attained and of which he now complains, and for which he would have a divorce.” He observes, finally, “It is clear that the plaintiff was as anxious for a separation as the defendant, and the little arts he practiced in the hope of keeping the law on his side, serve only to evince his real desire.” So in this case, the “little arts” practiced by plaintiff clearly evince a determination not to submit to the marital rights of her husband. We have no idea that Judge Scott ever imagined that a wife had a right to desert her husband because he was poor and unable to keep up an establishment commensurate with her views and expectations; she is bound to stand by him to the last, through all the changes of fortune, as lie is by her. — 337 — Mrs. Messenger, the plaintiff, seems to have entertained a very different opinion in relation to the obligations she assumed ; she seems to have been of opinion, that her husband was under obligations to afford her such a horne and house as his circumstances at the time of the marriage enabled him to do, and that when he ceased to do so, she was under no obligagations to follow his adverse fortunes; that if her friends would better provide for her, she might .desert him and fall back upon the bounty of her friends or. upon her own resources. We think this is a mistaken view of the relation of husband and wife. The opinion is of course based on the hypothesis, that there was no such abusé of the marital relations, by cruelty or indignities, as justified a separation. The question is one of desertion, and we hold that the wife is bound to follow the fortunes of her husband, and to live where he chooses to live, and in the style and manner which he may adopt, and such will be the determination of a wife who is devoted to her husband, and who does not assume to be wiser than he is. It being conceded in this case, that the charges of cruelty and indignities to the person are abandoned as groundless, and the case being rested on the sole grotmd of desertion, we are clearly of opinion that the desertion was on the part of the plaintiff. The letters between the parties are quite conclusive on this point. Those óf the wife are excessively cold, and amid all variations are the expression of the same uniform determination, which was that she would live with her husband whenever he could make it to her interest financially to do so, but not until then, while those of the defendant indicate an affection which seems not to have been reciprocated. We think the defendant is entitled to a divorce under our statutes, on the ground of wife’s desertion. The case will, therefore, be remanded with a view to such decree. In regard to the children, we have great objections to depriving the mother of the control of infant children, especially — 338 — when they are females and when the mother is entirely competent and peculiarity adapted to bring up and educate them; and although the law gives the father the custody of such children generally, we think the decree directed in favor of the defendant should be so framed as to continue the care and custody of the children in the plaintiff, subject, however, to any subsequent order of the court. The restrictions against marriage should be removed so far as plaintiff is concerned. The judgment is reversed and the cause remanded, with instructions to enter a decree in conformity with this opinion. All the judges concur.