Thomsen v. Thomsen , 118 Or. 614 ( 1926 )

ON THE MERITS. 247 P. 808.) This is a suit for divorce on the grounds of desertion and cruel and inhuman treatment. Defendant, by cross-complaint, also sought a divorce, but at close of case waived her claim for such relief. The trial court decreed that the complaint and cross-complaint be dismissed and required plaintiff to pay an additional sum of $300 as attorneys' fees. Plaintiff appeals.

AFFIRMED AS MODIFIED. The great World War was over. Plaintiff, an overseas veteran, twenty-three years of age, was returning to his home in Hood River, Oregon. While standing on the platform of a railroad coach, which was held awaiting orders, at Philadelphia, he first gazed upon his future wife. She was then in training as a nurse and had come to extend greetings to the boys from the front. It was apparently a case of love at first sight. Plaintiff was quartered temporarily at Camp Dickson, near Philadelphia, where defendant then lived, and he was enabled to call at her home twice before leaving for Oregon. When he returned home, a fervent and rapid fire correspondence sprang up, eventuating in a return trip to Philadelphia, where, on November 28, 1919, a marriage was consummated.

Plaintiff, like his brother a short time before him, brought his young bride home to live with his parents. It was, indeed, a grave mistake. Experience of past ages teaches that a wife is rightfully entitled to be mistress of her own household. It is true she had good food and a place to sleep, but there is something more important than material comfort — and that is happiness. The house on the farm was large and somewhat pretentious, but not large enough to cover three families. In this home there resided plaintiff's father and mother, two sisters, brother and sister-in-law. Trouble soon arose to cast a cloud over this romance of the war. It was the same old, old story. Space is too valuable to recite the various quarrels and embarrassing situations that arose in this household. Neither will we undertake to say who was to blame. We judge from the evidence that the condition might be accurately described by repeating what Sherman said about war.

When defendant became pregnant with child, it was mutually agreed that she should return to Philadelphia where she could have the gentle care and sympathy of a mother at a time when most needed. A fine baby boy was born September 27, 1920. Numerous letters passed between the husband and wife. Finally, in November, 1920, plaintiff wrote to defendant requesting her in a somewhat uncertain and unsatisfactory manner to return to him and carry on their married life. Plaintiff dates the alleged desertion from the receipt of this letter. We have examined the large number of letters written by the wife since the above date and throughout them is an expression of undying love and a sincere desire to live with plaintiff in a home of their own. Defendant was convinced there could be no happiness unless they were removed from past influences, and, in this contention, we agree. She was entitled to a new deal.

We recognize the right of a husband to choose the domicile, so long as that right is exercised with due regard to the happiness and welfare of the wife, but desertion cannot be predicated on the refusal of the wife to go where she will be subjected to abuse, ill treatment or unwarranted interference: 9 R.C.L. 365; 19 C.J. 60; Brewer v. Brewer, 79 Neb. 726 (113 N.W. 161, 13 L.R.A. (N.S.) 222, and note); Hall v. Hall,69 W. Va. 175 (71 S.E. 103, 34 L.R.A. (N.S.) 758, and note). As stated in Powell v. Powell, 29 Vt. 148:

"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 * *. 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."

The record does not disclose that plaintiff at any time had a home to offer defendant, where she would be free from the influences that brought sorrow and trouble into their lives. Neither does it appear that plaintiff in good faith made an unqualified demand upon defendant to return and live with him as his wife. We think he was more concerned in establishing a basis for future divorce proceedings.

There is no merit in plaintiff's claim that he was subjected to cruel and inhuman treatment nor do we think he has established a cause for divorce on the ground of desertion.

It was error, as counsel for respondent concedes, to make an additional allowance of $300 as suit money in the final decree: Section 512, Or. L.; Hengen v. Hengen, 85 Or. 155 (166 P. 525).

Eliminating the allowance of $300 as suit money, the decree of the trial court is affirmed and defendant is awarded costs and disbursements.

AFFIRMED.

McBRIDE, C.J., and BEAN and BROWN, JJ., concur.