Jakubke v. Jakubke

SiebeckeR, J. It is without dispute in this ease that the plaintiff and defendant are husband and wife, and that they have lived entirely separate since January, 1895. This action was commenced by the husband in September, 1903, for a divorce from defendant upon the ground that plaintiff and ■defendant “have voluntarily lived entirely separate for the [637] space of five years next preceding the commencement of the action.” Snbd. 7, sec. 2356, Stats. 1898. Defendant excepts to the finding of the circuit court that she and her husband have lived voluntarily separate for this statutory period as not sustained by the evidence. To constitute a voluntary separation under the provisions of .this.statute it must appear that it was mutually voluntary by the parties. The evidence-shows that defendant was compelled to leave plaintiff’s home in January, 1895, for her protection and safety, on account of his cruel and inhuman treatment of her, and that, in an action commenced by him against her for a divorce in September, 1896, on the ground that she wilfully deserted- him without just cause, it was found and adjudged that she had not deserted him, but that she was compelled to live separate-from him on account of his cruel and inhuman treatment of her. The evidence is that from the time of such separation plaintiff has taken no steps to effect a reconciliation and to-remove the estrangement consequent upon his conduct toward her, and that he has provided no means for the support of defendant and her son, who has lived with and been supported by defendant since their separation. The defendant has persistently asserted that since 1895 she has been compelled to live separate from plaintiff on account of his ill-treatment, and a refusal on his part since that time to live with and so-treat her and to provide for her as to make it safe and appropriate for them to live and cohabit together as husband and wife. It is clear that nothing has occurred which shows that their separation is continued for any cause other than the one inferable from the facts and circumstances of its commencement. The testimony is devoid of all suggestion that the defendant lives voluntarily separate from plaintiff and admits of no other conclusion than that she remains separate from plaintiff by reason of the one enforced upon her by his cruel and inhuman treatment. The separation having, on the part of the wife, been involuntary in its inception, and nothing;’ [638] appearing to show tbat slie consented to a continuance thereof, tbe plaintiff’s alleged cause of action is left without any basis in fact, and it must fail, Cole v. Cole, 27 Wis. 531; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Williams v. Williams, 122 Wis. 27, 99 N. W. 431. By the dowrt. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint.