Creasey v. Creasy

CAULFIELD, J. (after stating the facts).— Plaintiff’s counsel advances the theory that the only issues of fact that could he raised or tried were whether the husband, without good cause, abandoned his wife and neglected or refused to support her, and that therefore it' was error for the court to consider the question whether the defendant was able and willing to resume his duty of making proper provision for his wife and to become reconciled to her and honestly endeavored to do so. Carrying this theory to its logical conclusion, plaintiff’s counsel contends in his brief that an abandonment and failure to provide for the wife having been shown to have existed, “the only thing remaining was for the plaintiff to determine upon what length of time she desired a separate maintenance and support to be awarded, and if substantial evidence was adduced supporting her prayer, it then' became the duty of the court to award it for such period of time, so that, when the plaintiff in the case at bar requested an allowance for the remainder of her natural life and predicated her prayer upon the proposition that the defendant ■ had given plaintiff cause for divorce, a decree in accordance with her prayer was the only allowance the court could make.” Such theory and the contention based on it are with [109] out merit or precedent to sustain them. The courts of various states differ as to whether they have power, without statutory authority, to make and enforce an allowance for separate maintenance except as incident to a divorce proceeding, hut there does not seem to be any question that a sincere offer on the husband’s part to take back and maintain the wife and treat her with conjugal kindness and affection will generally defeat her right to a separate allowance. [21 Cyc. 1602; Kenley v. Kenley, 2 Howard (Miss.), 751; Hair v. Hair, 10 Richardson’s Equity Reports, (S. C.) 163; Schraeder v. Schraeder, 26 Ill. App. 524; McMullin v. McMullin, 123 Calif. 653; Skittletharpe v. Skittletharpe, 130 N. C. 72.] The wife gets no vested right to separate maintenance because her husband has abandoned and refused to provide for her. Such right ceases if he does not persist in such wrongful conduct and sincerely offers to resume his marital relations and obligations. [Schraeder v. Schraeder, supra.] Nor is the husband’s offer to deal rightly by his wife any the less effective to defeat his wife’s right to separate maintenance because made after being sued for separate maintenance or even after a judgment in such suit, though of course the lateness of his repentance might be considered in adjudging the question of his sincerity. [Schraeder v. Schraeder, supra.] In fact, the judgment should be so framed as to anticipate that contingency and allow only for a separate support to the wife until he will take her back and treat her with conjugal kindness and affection; and such are the usual terms of such judgments. [1 Bishop on Marriage, Divorce and Separation, sec. 1417.] If he should sincerely become willing and offer to do that, the necessity for separate maintenance would cease. [Skittletharpe v. Skittletharpe, supra] If the judgment was otherwise drawn, it would still be the duty of the court to refuse to enforce it, if it appeared that the parties had come [110] together again, or that the husband was willing to assume his marital relations and obligations and was prevented only .by his wife’s refusal from doing so. [Reid v. Robinson, 9 Lower Can. Jurist, 103.] Our statute is in harmony with the foregoing ideas, for it provides that the support and maintenance shall be “for such time as the nature of the case and the circumstances of the parties shall require,” and that the court shall “from time to time make such further orders touching the same as shall be just.” [Sec. 8295, R. S. 1909.] Applying these principles to the facts of the case at bar it is evident that the trial court did not err in denying plaintiff a judgment for separate maintenance, it being satisfied by substantial evidence that defendant was willing and had repeatedly offered to resume his marital relations and obligations, and was prevented from doing so only by the refusal of his wife. . It was not error for the court to take the case under advisement and postpone its decision to a later day, and, if it had been, plaintiff did not preserve the point by excepting to such action. [Kuhl v. Kuhl, 160 Mo. App. 363, 140 S. W. 949.] Plaintiff did not suffer because of the postponement, for in the meantime she was enjoying an allowance for temporary maintenance. Neither did the trial court err in reopening the case and hearing additional testimony bearing on defendant’s attempts, after the first hearing, to effect a reconciliation with hik wife. It is a matter of discretion with the trial court to admit or exclude testimony after a case has once been closed and such discretion will not be interfered with except in case of its manifest abuse. [Kuhl v. Kuhl, supra.] And in a suit like this for separate maintenance, where, as we have seen, the judgment, if for plaintiff, would not be a final one, in the sense that term is usually [111] used, but would only be for separate 'maintenance until the husband was sincerely willing to resume his marital relations and obligations, and would not preclude him from afterwards seeking to effect a reconciliation, evidence of the husband’s present attitude would be clearly pertinent to the matter before the court, for it would be idle to enter such a judgment if the husband was then willing to do his duty and, therefore, separate maintenance was not necessary. Likewise it was not error for the trial court to modify the declaration of law offered by the plaintiff, which declared that if defendant abandoned plaintiff without cause, she was entitled to a separate maintenance, by adding thereto, “until defendant resumes his duties of making proper provision fox his wife and becomes reconciled to her or honestly endeavors so to do.” Such addition was in entire harmony with the law as above mentioned. Plaintiff further contends that the finding that the defendant’s offer to take her back was made in good faith is not supported by any evidence in the case. It is clear that there is no foundation for this contention. The evidence tending to support such finding was ample and was substantially, if not entirely, uncontradicted, as will be seen from our statement of the facts. The plaintiff, though given an opportunity, refused to offer any testimony on that subject. Nor are we inclined to disturb the judgment because the husband finally refused to tell counsel for plaintiff what he would do in the matter of taking his wife back. It is fair to infer that by that time, that is, at that point in his cross-examination, he had become aggravated and wroth at plaintiff’s counsel and resented the manner of his cross-examination, and such refusal could more readily be attributed to mere temporary spleen directed at plaintiff’s counsel than to a real disposition not to resume his marital relations. [112] Especially is this so when bis testimony as to bis endeavors to make up with bis wife and bis declarations in tbe prior part of bis testimony are considered. We may add to tbe foregoing that if tbe plaintiff returns to ber husband and be should illtreat her to such an extent as to justify ber living apart from him, or if, upon an unequivocal attempt to return to him, be shall repulse ber or refuse to cohabit with ber.as ber husband, tbe decree in this case will not bar ber remedy against him. [Schraeder v. Schraeder, 26 Ill. App. 524, 525.] Tbe judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.