Burns v. Burns , 121 W. Va. 13 ( 1939 )

In this suit, a divorce is sought upon the charge of desertion. The circuit court refused the divorce.

The plaintiff proved that his wife, without good cause known to him, voluntarily left their home at Alderson on February 16, 1936, and would not return; that shortly afterwards he accepted a position at Fayetteville, where, after arranging for rooms, he requested her to live with him there, and she refused; and that she had continued obdurate and had never resumed marital relations to the very time depositions were taken, to-wit, April 19, 1938. She did not answer or otherwise appear.

The husband, within reasonable limits, has the right to select the matrimonial domicil. If the wife, without good reason, rejects his selection and terminates marital relations, she is a deserter. Walker v. Walker, 109 W. Va. 662, 664,155 S.E. 903; Schouler, Marriage, etc. (6th Ed.), sec. 1641; 17 Am. Jur., Domicil, sec. 38, et seq. Consequently, the defendant here was a deserter and the plaintiff is entitled to his divorce.

The decree is reversed, and the cause remanded.

Reversed and remanded.