Page images
[ocr errors]

(-ud. - 126 Atl. 112.) there, her unjustified refusal to do wife, each in their proper sphere, 80 constitutes desertion."

are supreme. This instinctive de And in 9 R. C. L. 365, it is said: sire of home building should be en"As a general rule, the husband has couraged and fostered, as upon the a right to direct the affairs of his foundation of independent and hapown house, and to determine the py homes the stability and prosplace of abode of the family, and it perity of a nation largely depends. is generally the duty of the wife to While, as stated, there is no desubmit to such determination, un- cision of this court directly upon less there is good reason for her re- this point, in the case of Young v. fusal to do so. The determination Young, 136 Md. 84, 110 Atl. 207, of such matters must, in the first which was a case in which the wife instance and ordinarily, be left to had instituted proceedings for a dithe husband, upon whom rests the vorce on the ground of cruelty, and legal duty to provide for his family the husband filed a cross bill on the as well as for himself. The refusal ground of desertion, at the concluof the wife to accompany him in a sion of the evidence the plaintiff change of domicil, unless such filed a petition stating that she was change is plainly unreasonable, con- unable to procure sufficient evidence stitutes desertion by her. The right to support the allegations of her which the husband exercises in the bill, and asked that it be dismissed selection of the place of abode or without prejudice, which was done, domicil is not, however, an entirely and after a hearing the cross bill of arbitrary power. He must have due the husband was also dismissed, and regard for the health, welfare, com- an appeal taken by him to this court. fort, and peace of mind of his wife; In passing upon the questions preand the change of domicil and offer sented in that case, this court, to provide a new home must be bona speaking through Judge Burke, fide.”

said: "The testimony of the wife And again, in 19 C. J. 60, it is in support of her bill was not corsaid: “A wife is not guilty of de- roborated to the extent required by sertion in refusing to follow her law to warrant the court in granting husband to the place of abode se- the relief prayed for, but a careful lected by him, if it has been chosen examination of the evidence has satwithout reason and discretion." isfied us that she was very unhappy

Courts have consistently re- in the home of her husband's parfrained from attempting to enunci- ents, and was anxious and urgent ate a hard and fast rule governing that he should provide a separate cases such as the one now under home or apartment for her. consideration, but rightly leave each The husband is able to provide a case to be determined by its peculiar separate home for his wife, and it facts and circumstances.

was not unreasonable under the cirThe case now being considered, cumstances that he should do SO,

and when stripped of all immaterial it was very natural for the wife to · matters, resolves itself into a ques- want a home of her own. If one is

tion of whether or not the appellee provided, as he promised, we are is legally justified in leaving her not at all satisfied that the wife husband for the reason that he, be

would refuse to return." ing financially able, fails to provide In several cases cited in the footan independent domicil, and re- note to 19 C. J. 60, it was held: quires her to live in the home of his "A wife is not chargeable with deparents.

sertion because she refuses to live One of the strong incentives for at the home of her husband's relmarriage is the prospect and ex- atives, especially where her living pectation by the newly married par- there is made unpleasant." ties of establishing an independent And in Marshak v. Marshak, 115 home in which the husband and Ark. 51, L.R.A.1915E, 161, 170 S.

38 A.L.R.-22.

[ocr errors]
[ocr errors]

W. 567, Ann. Cas. 1916E, 206, it was earning sufficient to maintain was held that “a wife is not guilty an independent home; that, in order of desertion for refusing to follow to augment his income, the wife had her husband to a place

demonstrated her ability and willamong his relatives, who are un- ingness to earn an income independpleasant to her, and who would in- ent of her husband, and expend it terfere with her control of the in furnishing the home and supporthome; at least, if he was able to ing the family; that, in addition, the furnish a better one."

proposition of the husband to live In 9 R. C. L. 366, § 152, it is said: with his parents had been tried, and It is the duty of the husband “to had proved a failure. Under such

. furnish a home wherein the wife is conditions it is difficult to reach any free from abuse, ill treatment, other conclusion than that the husand unwarranted interference from band, when he made these condimembers of the household. If such tions, expected and believed that the a home is not provided, a wife is wife would not accept them, and justified in leaving, and not only is that it would result in her leaving not guilty of desertion in so doing, him and going to the home of her but may charge the husband with mother. This conclusion is strengthconstructive desertion."

ened by the fact that, when the apIt will be noted in this case that pellant found his wife had left, it the parties had made the attempt apparently was the result that he to live happily in the home of the had intended, for he made no effort husband's parents and had signally to induce her to return, or even asfailed to find that contentment and certain her whereabouts. This atdomestic peace to which the wife titude of the husband is further was entitled; so that, in urging her demonstrated by his letters in reply to return to that same domicil, the to those written by his wife, in each husband had no reason to suppose

of which he makes it a condition of that her residence there would be their living together that their domany more congenial and satisfactory icil be with his parents. than it had previously proven to be. We do not decide that in every case

If these young married people had the wife is justified in leaving her not already made the experiment of husband when the home provided is living with the husband's parents with his parents, as each case should and found it unsatisfactory and un- be determined upon its own parcongenial, according to the testi- ticular circumstances. mony of the husband as well as the It will be seen from what we wife, or if, as a matter of fact, it have said that we

Divorce and was the only place which the hus

find no


in neparation band could have provided as a home the decree appealed daty of wile for himself and wife, this case from, and same husband's parwould present a different aspect. must be affirmed. The facts here are that the husband Decree affirmed, with costs.

to live



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.

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

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

a home not only extends to the fur him, and such leaving will not connishing of material comforts in ac- stitute legal desertion. The evidence cordance with his means, but requires satisfactorily shows that the plaintiff the furnishing of a home wherein the was completely under the dominion of wife is free from abuse, ill treatment, his children, especially his daughter and unwarranted interference from Josephine; that she ruled the housemembers of the household. If such a hold; that she, with his knowledge, home is not provided, the wife is usurped the place of the wife; that he justified in leaving, and not only is did not even attempt to correct the not guilty of desertion in so doing, but abusive conduct of this thirty-year-old may charge the husband with con- daughter, but virtually assented to a structive desertion.

course of conduct on her part towards Thus, in Dakin v. Dakin (1901) 1 his wife not only often insulting and Neb. (Unof.) 457, 95 N. W. 781, it was abusive, but constantly humiliating held not to be desertion for a wife to and unendurable to the defendant, leave the home, where she was sub- who was a woman of nervous temperajected to violent abuse and frequent ment, advanced in years, and apparpersonal violence by her husband's ently of impaired health. Was the mother. It was said: “The husband's treatment accorded the defendant duty requires him to provide a home such as justified her in leaving the for the wife. That home should be plaintiff? Was it such as would give one in which she may reside in peace her good grounds for a divorce? To and provided with such necessaries our minds both questions must be anand comforts as the condition of the swered in the affirmative.husband will warrant. No one would In Powell v. Powell (1856) 29 Vt. countenance the conduct of a husband 148, it was held that a wife was justiin making a home for his wife in a fied in refusing to join her husband bawdyhouse, even though he might do where he removed the family domicil all in his power to shield her from the to a place near his relatives, by whom surroundings and treat her with every the wife had previously been illtreatkindness himself in other respects, ed. In so ruling the court said: and no one would question that such “Now, while we recognize fully the conduct on his part would be cruel and right of the husband to direct the afinhuman. Why should he be held less fairs of his own house and to deterresponsible in placing her where she mine the place of the abode of the is subject, as in this case, to personal family, and that it is in general the abuse of every description ?"

duty of the wife to submit to such deSo, in Day v. Day (1892) 84 Iowa, terminations, it is still not an entirely 221, 50 N. W. 979, a wife was held not arbitrary power which the husband to be guilty of desertion in leaving exercises in these matters. He must hoine on account of mistreatment by exercise reason and discretion in reher stepdaughter. The court said: gard to them. If there is any ground “The law requires a husband to do all to conjecture that the husband rethat he reasonably can to protect his quires the wife to reside where her wife from insult and abuse, regard- health or her comfort will be jeopardless of the source from which it may ed, or even where she seriously become. If, as seems to be the case here, lieves such results will follow which he could not, or would not, control the will almost of necessity produce the conduct of his children to the extent effect, and it is only upon that ground of securing to the wife decent treat- that she separates from him, the court ment at their hands, then he is, if pos- cannot regard her desertion as consessed of ample means, bound to pro- tinued from mere wilfulness. Any vide a home where she can be free man who has proper tenderness and from their insult and abuse. Atkinson affection for his wife would certainly V. Atkinson (1885) 67 Iowa, 364, 25 not require her to reside near his relaN. W. 284. Failing to do so, she is, tives if her peace of mind were therein a proper case, justified in leaving by seriously disturbed. This would be very far from compliance with the with whom her relations are unpleasscriptural exposition of the duty of ant. husbands : 'For this cause shall a The general view of the courts in man leave father and mother and these cases is well expressed by the cleave to his wife, and they twain shall court in Ball v. Ball (1899) 8 Pa. Dist. be one flesh.' And in the present case, R. 678, 23 Pa. Co. Ct. 307, as follows: as the wife alleges the vicinity of the "Doubtless it is the wife's duty, as a husband's relatives as a reason why general rule, to follow the husband to she cannot consent to come to Milton the home he selects; but this imposes to live with him, and as everyone at no obligation on the wife to go where all experienced in such matters knows the husband has not such reasonable that it is not uncommon for the female control of some part, at least, of the relatives of the husband to create, house in which they are to dwell, as either intentionally or accidentally, will enable him to protect and shelter disquietude in the mind of the wife, her against ill treatment and conand thereby to destroy her comfort tumely. A 'home,' in the meaning of and health often, and as there is no the law, is a place where husband and attempt here to show that this is a wife may live in the enjoyment of each simulated excuse, we must treat it as other's society and rear their offmade in good faith, and, if so, we are spring. If the circumstances are such, not prepared to say that she is liable as they appear to have been in this to be divorced for acting upon it." case, that the husband's mother is vir

To the same effect is Hutchins v. tually the acting head of the house, Hutchins (1896) 93 Va. 68, 24 S. E. and she expresses in language a set903, wherein, on similar facts, the tled conviction of the wife's inconcourt said: “We are, of course, aware tinence, coupled with directions to go that it is the right of the husband to away, the place could not fairly be select the place at which his family called a home for the respondent, even shall live, and to say of whom the if, by some self-abasement, she might family circle shall consist. Notwith- have obtained admission thereto." standing the changes that have so In Field v. Field (1913) 79 Misc. greatly altered and ameliorated the 557, 139 N. Y. Supp. 673, wherein it position of the wife before the law, appeared that the husband brought it still remains that the husband is the his mother into the home, and she head of the family, and that as such interfered with the wife's control and he should be obeyed and respected as management thereof, and made things long he deserves respect and

unpleasant by her interference, it was obedience. But this position of dig- held that the wife was justified in nity in the family carries with it cor- leaving the husband, and that he was relative obligations. He owes to his not entitled to a separation on the family the duty of protection from ground of abandonment. The court whatever danger may threaten her, brought out the facts that the husband and to permit her to suffer cruelty did not have sufficient income to mainand wrong at the hands of another, tain two homes, and that the mother even though that other be his father did not have means or ability to supor his mother, is as great a breach of port herself, and that “under these duty as though they proceeded direct- conditions he is justified in providing ly from him.”

a place for her in his home, provided

she recognizes that place and keeps it. 11. Leaving of home justified.

Thus, she can have no say whatever It has been held in a number of regarding the management and control cases that a wife is entitled to a home of the home; this belongs to the wife; which is under her control, and is and if the husband's mother makes justified in leaving if the husband per- discord where there should be harmits his mother, or other of his rela- mony, interferes with the wife's contives, to dominate the household, or trol and management, even at the reinsists on her living with relatives quest of her son, or, by her own im


proper conduct and thoughtless lan- thereby forfeit her right to support guage, makes the home unpleasant and and maintenance." distressing to the defendant, then the In Geisinger v. Conners (1912) 130 wife would be justified in leaving her La. 922, 58 So. 815, it was held that husband and requiring support from a husband was not entitled to a sephim elsewhere."

aration on account of the refusal of In Reynolds v. Reynolds (1916) 62 his newly wedded wife to come and Pa. Super. Ct. 280, it appeared that a live with him in a room in a flat occuhusband took his wife to live with his pied by his mother, whose disposition parents. His mother retained control towards the wife was unfavorable. In of the house and carried the purse. that case the court said: “ConsiderThe wife received no money from her ing the disposition of the mother, we husband, but was compelled to ask her do not think the premises in question mother-in-law for it. The whole situa- can be said to constitute a matrimonial tion was so

leasant to her that she domicil, within the intendment of the requested a separate home. On his Code, which the defendant owes the refusal she went home to her parents. legal duty, under the circumstances of The court held that she did not desert the case, to go and occupy with plainher husband, saying: "The husband tiff. What would be the legal situatook his wife to his folks. His mother tion if he were unable to do better for was the head of the household and her, we do not undertake to say, for carried the purse, and apparently was she took him 'for better and for worse,' in control.. There was evidence but the evidence shows that he can do of contentions between the mother and better. Let him do it.” son which made the situation very un- In Fraser v. Fraser (1917) 87 N. J. pleasant for the wife. She desired her Eq. 633, L.R.A.1917F, 738, 101 Atl. 58, husband to set up a home of his own. it was held that the husband had Under the circumstances it is no won- failed to provide a suitable home, and der that she felt that she was not wel- that the wife was justified in leaving come in the mother-in-law's household. it and not returning to the same con

She left, but it was not with the ditions, which were detrimental to her idea of a final separation."

health and happiness. The court said: It appeared in Brewer v. Brewer “This cause illustrates the futility of (1907) 79 Neb. 726, 13 L.R.A.(N.S.) attempting to establish such a home 222, 113 N. W. 161, that the plaintiff, as a husband should provide for his after her marriage to the defendant, wife, when one of the component parts lived with her mother-in-law, who is his mother, who up to the time of dominated the household and made the introduction of the wife is its head, life unpleasant for the plaintiff. After and who is not willing to graciously a few months she left and returned accord to the wife her rightful posito her mother's home, refusing to live tion as mistress, and where the husin her mother-in-law's house any band, in all disagreements between longer. The court held that she was his mother and wife, either supports not guilty of desertion, saying: the mother or remains neutral between “Every wife is entitled to a home the contending forces. It is the duty corresponding with the circumstances of the husband to provide a home for and condition of her husband, over his wife where she is recognized by which she shall be permitted to pre- its inmates as the household mistress, side as the mistress.

What- and when the husband subjects his ever his filial obligation may be, a wife in the management of her houseman may not bring his mother to pre- hold affairs to the interference of his side in his new home. That place be- mother, who manifests an enmity tolongs to his wife. Neither may he, wards the wife, and by words and acts without her consent, take her to the assails her conduct and reputation to home of the mother, there to be under such an extent that she cannot endure her domination and control. And when it, and leaves the home for that reason, the wife objects to this she does not her desertion may be wilful, but it

« PreviousContinue »