De Vry v. De Vry , 46 Okla. 254 ( 1915 )

The contention of the plaintiff in error is that the husband has the right to choose the domicile of the family, and it is the duty of the wife to accompany and live with him in the home so selected, unless there be good reason for her refusing to do so, and that a failure of the wife so to do is abandonment, authorizing a divorce. There can be no question that this statement of the law is correct. Buell v. Buell, 42 Wn. 277, 84 P. 821; Franklin v. Franklin, 190 Mass. 349, 77 N.E. 48, 4 L.R.A. (N.S.) 145, 5 Ann. Cas. 851; 14 Cyc. 612.

But the facts in the case at bar are not sufficient to apply this rule. It appears that, before the wife had notice of the divorce proceedings, she yielded to the will of her husband and consented to live with him, coming to Oklahoma for that purpose; and the trial court having found the issues in favor of the defendant, and there being evidence to support this finding, it cannot be disturbed by this court. In Peretti v.Peretti, 165 Cal. 717, 134 P. 322, it is held, in an action for divorce on the ground of abandonment, that:

"Where the party, who was originally the deserter, offers to return, the fault of desertion will be thrown upon the other spouse, if the offer is refused, provided the offer to return be made in good faith and not simply to create a ground for divorce. Whether an offer by a spouse to return, after having deserted the other, was made in good faith, is a question of fact, and the determination of the [trial] court will not be disturbed when there is any ground to support it."

This case is directly in point with the case at bar. The wife undoubtedly was originally in fault in not following the husband to the marriage domicile established by him. The record entirely fails to show any good reason why she should not live in Oklahoma; but on her offer to return, which the court by its finding in her favor has found was in good faith, the husband became a wrongdoer himself by refusing to allow her to do so.

On the question of alimony, the court below allowed $500 as permanent alimony and an attorney fee of $146. Under the evidence in this case, we think this allowance of alimony was excessive. The parties had been married but a short time, and there is no evidence that any property was accumulated by the husband through the assistance of the wife, or that she had any property when she married which had gone to him. His income was in case between $50 and $60 a month, with doubtful accounts of about as much more. In allowing a gross sum of $500 in this condition of the husband's finances, we think the court erred. After this appeal was taken to this court, an order was made on October 1, 1912 requiring the plaintiff to pay into court the sum of $20 a month temporary alimony and $100 attorney fee. Under this order, he has paid into court the sum of $835. Under all of the circumstances of this case, considering the amount which the defendant has received under the order since October 1, 1912, and the undisputed financial condition of the plaintiff, we think the judgment for alimony should be set aside.

We therefore recommend that the judgment be modified by striking the judgment for alimony therefrom, and, as thus modified, the judgment below be affirmed.

By the Court: It is so ordered.