Schopps v. Schopps

Jones, J. There are certain general rules applicable to the facts of this case which are so well settled as to require no enumeration of the large number of cases which might be cited. In order to constitute desertion under our statute and many similar statutes, the desertion must be not necessarily malicious, but wilful and intentional and- for the statutory period. The consent of the complaining party is fatal. Desertion implies a want of consent, an unwillingness on the part of the complaining spouse. It follows that so long as husband and wife agree to live apart there is no desertion. Mere separation or living apart even for an extended period does not amount to desertion. There must be in addition the intent not to return or resume the marital relation. Although the living apart begins with mutual consent, there may nevertheless be desertion; and it begins when the spouse complaining in good faith makes offers to terminate the separation and the other party unreasonably refuses and shows the intention of continuing the separation. In the first of the former actions brought by the plaintiff the ground alleged was cruel and inhuman treatment. In the second action the grounds alleged were cruel and inhuman treatment and desertion. In the second action the court found in substance, among other things., that the separation of the parties was with the consent and approval of the plaintiff; that the defendant had not refused to live with the plaintiff in any suitable and reasonable home he might provide; that there had been no desertion; and that the allegations of the complaint as to cruel and inhuman treatment were unproven and untrue. These findings and the judgment thereon are of course conclusive as to the facts so found and adjudicated. If there was any desertion it must be based on subsequent events, although the former acts and conduct of the parties may have some relevancy on the issues now involved. It is claimed by counsel for the plaintiff, and it was found by the court, that the desertion began on or about April [158] 21, 1922, which was about the date of plaintiff’s first letter suggesting the defendant’s return. Since the separation was in the beginning by mutual consent, it is obvious that the two main questions are, first, Was the plaintiff’s request for a resumption of the marital relation made in good faith? and second, Was the defendant’s conduct, in not complying with the request, unreasonable ? There is testimony by the plaintiff that several years before the commencement of the present suit he with his attorney had gone to the house of the defendant to seek a reconciliation and ask her return, and in her absence had been rudely repulsed by her father. The plaintiff testified in his evidence on the trial of the second action for divorce that since his. return from the army he had never requested or wanted his wife to return; he had'written no letters until the letter of April 23, 1922. Before this letter was written he had studied law and was familiar with the law relating to desertion. We shall attempt no lengthy discussion of the correspondence between the parties. The plaintiff’s first letter was in the proper spirit. The second evaded giving any of the information which the defendant desired, and the last letter was in such a tone as to give little promise of any real reconciliation. In none of them was there any suggestion of any conference at which explanation could be made or the desired information could be furnished. The letters of the defendant are open to some criticism. Taken by themselves and read apart from any background or the previous history of their married life, they would seem too exacting and to show an unwillingness to bear her part of the burdens of married life. If she had believed that the offer to live again as husband and wife was made in good faith, she would not be justified in refusing the offer merely because she feared that she would not be as comfortable as at the home of her parents. But there were circumstances which justified the fear that there would be no reasonable provision for her support. During the six weeks when they lived to [159] gether it became necessary, for want of means, to live a portion of the time unhappily with the plaintiff’s parents. Furniture which had been bought could not be paid for and was taken back by the dealers. The plaintiff had brought repeated actions for divorce without cause, and had manifested for a long period of time no interest in the defendant’s welfare. The plaintiff stated in his first letter that he had “prepared a home,” but the oral testimony showed that his statement was not true. His only preparation, according to his own testimony, was that he had the assurance of his paretits that they would help him as to furniture. In this action for desertion, where the separation was by mutual consent, the burden rested on the plaintiff to show that his request for the defendant’s return was made in good faith, and to warrant judgment for the plaintiff the testimony should show that the defendant’s refusal was unreasonable. Gleason v. Gleason, 4 Wis. 64; 9 Ruling Case Law, 365; 19 Corp. Jur. 60. It is the view of this court that under all of the circumstances the refusal was not unreasonable. .It is also the conclusion of the court that the plaintiff failed to prove that his request for the return of the defendant was made in good faith. We do not feel bound to affirm the findings of the trial court for the reason that the proof consisted very largely of writings which it is our duty to construe. By the Court. — The judgment is reversed, and the cause remanded with directions to dismiss the complaint.