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(Md. - 126 Atl. 112.)

there, her unjustified refusal to do so constitutes desertion."

And in 9 R. C. L. 365, it is said: "As a general rule, the husband has a right to direct the affairs of his own house, and to determine the place of abode of the family, and it is generally the duty of the wife to submit to such determination, unless there is good reason for her refusal to do so. The determination of such matters must, in the first instance and ordinarily, be left to the husband, upon whom rests the legal duty to provide for his family as well as for himself. The refusal of the wife to accompany him in a change of domicil, unless such change is plainly unreasonable, constitutes desertion by her. The right which the husband exercises in the selection of the place of abode or domicil is not, however, an entirely arbitrary power. He must have due regard for the health, welfare, comfort, and peace of mind of his wife; and the change of domicil and offer to provide a new home must be bona fide."

And again, in 19 C. J. 60, it is said: "A wife is not guilty of desertion in refusing to follow her husband to the place of abode selected by him, if it has been chosen without reason and discretion."

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Courts have consistently frained from attempting to enunciate a hard and fast rule governing cases such as the one now under consideration, but rightly leave each case to be determined by its peculiar facts and circumstances.

The case now being considered, when stripped of all immaterial matters, resolves itself into a question of whether or not the appellee is legally justified in leaving her husband for the reason that he, being financially able, fails to provide an independent domicil, and requires her to live in the home of his parents.

One of the strong incentives for marriage is the prospect and expectation by the newly married parties of establishing an independent home in which the husband and 38 A.L.R.-22.

wife, each in their proper sphere, are supreme. This instinctive desire of home building should be encouraged and fostered, as upon the foundation of independent and happy homes the stability and prosperity of a nation largely depends.

While, as stated, there is no decision of this court directly upon this point, in the case of Young v. Young, 136 Md. 84, 110 Atl. 207, which was a case in which the wife had instituted proceedings for a divorce on the ground of cruelty, and the husband filed a cross bill on the ground of desertion, at the conclusion of the evidence the plaintiff filed a petition stating that she was unable to procure sufficient evidence to support the allegations of her bill, and asked that it be dismissed without prejudice, which was done, and after a hearing the cross bill of the husband was also dismissed, and an appeal taken by him to this court. In passing upon the questions presented in that case, this court, speaking through Judge Burke, said: "The testimony of the wife in support of her bill was not corroborated to the extent required by law to warrant the court in granting the relief prayed for, but a careful examination of the evidence has satisfied us that she was very unhappy in the home of her husband's parents, and was anxious and urgent that he should provide a separate home or apartment for her.

The husband is able to provide a separate home for his wife, and it was not unreasonable under the circumstances that he should do so, and it was very natural for the wife to want a home of her own. If one is provided, as he promised, we are not at all satisfied that the wife would refuse to return."

In several cases cited in the footnote to 19 C. J. 60, it was held: "A wife is not chargeable with desertion because she refuses to live at the home of her husband's relatives, especially where her living there is made unpleasant."

And in Marshak v. Marshak, 115 Ark. 51, L.R.A.1915E, 161, 170 S.

W. 567, Ann. Cas. 1916E, 206, it was held that "a wife is not guilty of desertion for refusing to follow her husband to a place

among his relatives, who are unpleasant to her, and who would interfere with her control of the home; at least, if he was able to furnish a better one."

In 9 R. C. L. 366, § 152, it is said: It is the duty of the husband "to furnish a home wherein the wife is free from abuse, ill treatment, and unwarranted interference from members of the household. If such a home is not provided, a wife is justified in leaving, and not only is not guilty of desertion in so doing, but may charge the husband with constructive desertion."

It will be noted in this case that the parties had made the attempt to live happily in the home of the husband's parents and had signally failed to find that contentment and domestic peace to which the wife was entitled; so that, in urging her to return to that same domicil, the husband had no reason to suppose that her residence there would be any more congenial and satisfactory than it had previously proven to be.

If these young married people had not already made the experiment of living with the husband's parents and found it unsatisfactory and uncongenial, according to the testimony of the husband as well as the wife, or if, as a matter of fact, it was the only place which the husband could have provided as a home for himself and wife, this case would present a different aspect. The facts here are that the husband

was earning sufficient to maintain an independent home; that, in order to augment his income, the wife had demonstrated her ability and willingness to earn an income independent of her husband, and expend it in furnishing the home and supporting the family; that, in addition, the proposition of the husband to live with his parents had been tried, and had proved a failure. Under such conditions it is difficult to reach any other conclusion than that the husband, when he made these conditions, expected and believed that the wife would not accept them, and that it would result in her leaving him and going to the home of her mother. This conclusion is strengthened by the fact that, when the appellant found his wife had left, it apparently was the result that he had intended, for he made no effort to induce her to return, or even ascertain her whereabouts. This attitude of the husband is further demonstrated by his letters in reply to those written by his wife, in each of which he makes it a condition of their living together that their domicil be with his parents.

We do not decide that in every case the wife is justified in leaving her husband when the home provided is with his parents, as each case should be determined upon its own particular circumstances.

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ANNOTATION.

to live with husband's parents.

Refusal of one spouse to live with relatives of other as affecting desertion as ground of divorce or separation.

I. Generally, 338.

II. Leaving of home justified. 340. III. Leaving of home not justified, 345.

I. Generally.

The courts have not sought to formulate a rule of general application

as to what conduct of a husband's relatives will justify the wife in leaving the marital home, but have determined each case on its peculiar circumstances. It may, however, be said, as the general effect of the decisions, that the duty of a husband to provide

a home not only extends to the furnishing of material comforts in accordance with his means, but requires the furnishing of a home wherein the wife is free from abuse, ill treatment, and unwarranted interference from members of the household. If such a home is not provided, the wife is justified in leaving, and not only is not guilty of desertion in so doing, but may charge the husband with constructive desertion.

Thus, in Dakin v. Dakin (1901) 1 Neb. (Unof.) 457, 95 N. W. 781, it was held not to be desertion for a wife to leave the home, where she was subjected to violent abuse and frequent personal violence by her husband's mother. It was said: "The husband's duty requires him to provide a home for the wife. That home should be one in which she may reside in peace and provided with such necessaries and comforts as the condition of the husband will warrant. No one would countenance the conduct of a husband in making a home for his wife in a bawdyhouse, even though he might do all in his power to shield her from the surroundings and treat her with every kindness himself in other respects, and no one would question that such conduct on his part would be cruel and inhuman. Why should he be held less responsible in placing her where she is subject, as in this case, to personal abuse of every description?"

So, in Day v. Day (1892) 84 Iowa, 221, 50 N. W. 979, a wife was held not to be guilty of desertion in leaving home on account of mistreatment by her stepdaughter. The court said: "The law requires husband to do all that he reasonably can to protect his wife from insult and abuse, regardless of the source from which it may come. If, as seems to be the case here, he could not, or would not, control the conduct of his children to the extent of securing to the wife decent treatment at their hands, then he is, if possessed of ample means, bound to provide a home where she can be free from their insult and abuse. Atkinson v. Atkinson (1885) 67 Iowa, 364, 25 N. W. 284. Failing to do so, she is, in a proper case, justified in leaving

him, and such leaving will not constitute legal desertion. The evidence satisfactorily shows that the plaintiff was completely under the dominion of his children, especially his daughter Josephine; that she ruled the household; that she, with his knowledge, usurped the place of the wife; that he did not even attempt to correct the abusive conduct of this thirty-year-old daughter, but virtually assented to a course of conduct on her part towards his wife not only often insulting and abusive, but constantly humiliating and unendurable to the defendant, who was a woman of nervous temperament, advanced in years, and apparently of impaired health. Was the treatment accorded the defendant such as justified her in leaving the plaintiff? Was it such as would give her good grounds for a divorce? To our minds both questions must be answered in the affirmative."

In Powell v. Powell (1856) 29 Vt. 148, it was held that a wife was justified in refusing to join her husband where he removed the family domicil to a place near his relatives, by whom the wife had previously been illtreated. In so ruling the court said: "Now, while we recognize fully the right of the husband to direct the affairs of his own house and to determine the place of the abode of the family, and that it is in general the duty of the wife to submit to such determinations, it is still not an entirely arbitrary power which the husband exercises in these matters. He must exercise reason and discretion in regard to them. If there is any ground to conjecture that the husband requires the wife to reside where her health or her comfort will be jeoparded, or even where she seriously believes such results will follow which will almost of necessity produce the effect, and it is only upon that ground that she separates from him, the court cannot regard her desertion as continued from mere wilfulness. Any man who has proper tenderness and affection for his wife would certainly not require her to reside near his relatives if her peace of mind were thereby seriously disturbed. This would

be very far from compliance with the scriptural exposition of the duty of husbands: 'For this cause shall a man leave father and mother and cleave to his wife, and they twain shall be one flesh.' And in the present case, as the wife alleges the vicinity of the husband's relatives as a reason why she cannot consent to come to Milton to live with him, and as everyone at all experienced in such matters knows that it is not uncommon for the female relatives of the husband to create, either intentionally or accidentally, disquietude in the mind of the wife, and thereby to destroy her comfort and health often, and as there is no attempt here to show that this is a simulated excuse, we must treat it as made in good faith, and, if so, we are not prepared to say that she is liable to be divorced for acting upon it."

To the same effect is Hutchins v. Hutchins (1896) 93 Va. 68, 24 S. E. 903, wherein, on similar facts, the court said: "We are, of course, aware that it is the right of the husband to select the place at which his family shall live, and to say of whom the family circle shall consist. Notwithstanding the changes that have so greatly altered and ameliorated the position of the wife before the law, it still remains that the husband is the head of the family, and that as such he should be obeyed and respected as long as he deserves respect and obedience. But this position of dignity in the family carries with it correlative obligations. He owes to his family the duty of protection from whatever danger may threaten her, and to permit her to suffer cruelty and wrong at the hands of another, even though that other be his father or his mother, is as great a breach of duty as though they proceeded directly from him."

II. Leaving of home justified.

It has been held in a number of cases that a wife is entitled to a home which is under her control, and is justified in leaving if the husband permits his mother, or other of his relatives, to dominate the household, or insists on her living with relatives

with whom her relations are unpleasant.

The general view of the courts in these cases is well expressed by the court in Ball v. Ball (1899) 8 Pa. Dist. R. 678, 23 Pa. Co. Ct. 307, as follows: "Doubtless it is the wife's duty, as a general rule, to follow the husband to the home he selects; but this imposes no obligation on the wife to go where the husband has not such reasonable control of some part, at least, of the house in which they are to dwell, as will enable him to protect and shelter her against ill treatment and contumely. A 'home,' in the meaning of the law, is a place where husband and wife may live in the enjoyment of each other's society and rear their offspring. If the circumstances are such, as they appear to have been in this case, that the husband's mother is virtually the acting head of the house, and she expresses in language a settled conviction of the wife's incontinence, coupled with directions to go away, the place could not fairly be called a home for the respondent, even if, by some self-abasement, she might have obtained admission thereto."

In Field v. Field (1913) 79 Misc. 557, 139 N. Y. Supp. 673, wherein it appeared that the husband brought his mother into the home, and she interfered with the wife's control and management thereof, and made things unpleasant by her interference, it was held that the wife was justified in leaving the husband, and that he was not entitled to a separation on the ground of abandonment. The court brought out the facts that the husband did not have sufficient income to maintain two homes, and that the mother did not have means or ability to support herself, and that "under these conditions he is justified in providing a place for her in his home, provided she recognizes that place and keeps it. Thus, she can have no say whatever regarding the management and control of the home; this belongs to the wife; and if the husband's mother makes discord where there should be harmony, interferes with the wife's control and management, even at the request of her son, or, by her own im

proper conduct and thoughtless language, makes the home unpleasant and distressing to the defendant, then the wife would be justified in leaving her husband and requiring support from him elsewhere."

In Reynolds v. Reynolds (1916) 62 Pa. Super. Ct. 280, it appeared that a husband took his wife to live with his parents. His mother retained control of the house and carried the purse. The wife received no money from her husband, but was compelled to ask her mother-in-law for it. The whole situation was so unpleasant to her that she requested a separate home. On his refusal she went home to her parents. The court held that she did not desert her husband, saying: "The husband took his wife to his folks. His mother was the head of the household and carried the purse, and apparently was in control. . . There was evidence of contentions between the mother and son which made the situation very unpleasant for the wife. She desired her husband to set up a home of his own. Under the circumstances it is no wonder that she felt that she was not welcome in the mother-in-law's household. . . . She left, but it was not with the idea of a final separation."

It appeared in Brewer v. Brewer (1907) 79 Neb. 726, 13 L.R.A. (N.S.) 222, 113 N. W. 161, that the plaintiff, after her marriage to the defendant, lived with her mother-in-law, who dominated the household and made life unpleasant for the plaintiff. After a few months she left and returned to her mother's home, refusing to live in her mother-in-law's house any longer. The court held that she was not guilty of desertion, saying: "Every wife is entitled to a home corresponding with the circumstances and condition of her husband, over which she shall be permitted to preside as the mistress.

What

ever his filial obligation may be, a man may not bring his mother to preside in his new home. That place belongs to his wife. Neither may he, without her consent, take her to the home of the mother, there to be under her domination and control. And when the wife objects to this she does not

thereby forfeit her right to support and maintenance."

In Geisinger v. Conners (1912) 130 La. 922, 58 So. 815, it was held that a husband was not entitled to a separation on account of the refusal of his newly wedded wife to come and live with him in a room in a flat occupied by his mother, whose disposition towards the wife was unfavorable. In that case the court said: "Considering the disposition of the mother, we do not think the premises in question can be said to constitute a matrimonial domicil, within the intendment of the Code, which the defendant owes the legal duty, under the circumstances of the case, to go and occupy with plaintiff. What would be the legal situation if he were unable to do better for her, we do not undertake to say, for she took him 'for better and for worse,' but the evidence shows that he can do better. Let him do it."

In Fraser v. Fraser (1917) 87 N. J. Eq. 633, L.R.A.1917F, 738, 101 Atl. 58, it was held that the husband had failed to provide a suitable home, and that the wife was justified in leaving it and not returning to the same conditions, which were detrimental to her health and happiness. The court said: "This cause illustrates the futility of attempting to establish such a home as a husband should provide for his wife, when one of the component parts is his mother, who up to the time of the introduction of the wife is its head, and who is not willing to graciously accord to the wife her rightful position as mistress, and where the husband, in all disagreements between his mother and wife, either supports the mother or remains neutral between the contending forces. It is the duty of the husband to provide a home for his wife where she is recognized by its inmates as the household mistress, and when the husband subjects his wife in the management of her household affairs to the interference of his mother, who manifests an enmity towards the wife, and by words and acts assails her conduct and reputation to such an extent that she cannot endure it, and leaves the home for that reason, her desertion may be wilful, but it

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