McMullin v. McMullin

This is an action for divorce on the ground of desertion. Plaintiff had judgment and defendant appeals from the judgment and an order denying her motion for a new trial.

The parties intermarried in the year 1871, but have not lived together as husband and wife since the year 1877. Plaintiff, in his complaint filed April 9, 1898, alleged a desertion by defendant on April 10, 1896, the theory of his case, as shown by the evidence, being that the separation of the parties from 1877 to some time in April, 1895, was by consent, and that in April, 1895, he, in good faith, sought a reconciliation and restoration, and defendant refused, and has ever since continued to refuse, the same, thus rendering herself guilty of desertion. The defendant, in her answer, denied that she had ever deserted plaintiff, and alleged that in the year 1877 the plaintiff voluntarily separated himself from defendant, with the intent then and there to desert her, and has ever since continued such desertion. She also alleged failure to provide and adultery on plaintiff's part, but there was no evidence to sustain these allegations.

The findings of the court were entirely in accord with plaintiff's contention, and against defendant's allegation that plaintiff had deserted her. The court, after finding that the defendant deserted plaintiff on April 10, 1895, and has ever since continued such desertion, and that the separation in 1877 was not against the wish or will of said defendant, but was fully acquiesced in and consented to by the said defendant, further found as follows: —

"V. . . . The separation of plaintiff from defendant in the year 1877, was, and thereafter until the tenth day of April, 1895, continued to be, with the full acquiescence and consent of defendant. . . .

"VII. That, on the 10th day of April, 1895, while the plaintiff and defendant were living separate and apart by mutual acquiescence, the plaintiff offered, in good faith, to return to and live with the defendant, and sought a reconciliation and restoration; that the defendant then and there refused it, and ever since has refused to accept the said offer."

It cannot be doubted that if these findings are sustained by evidence the defendant's refusal constituted a desertion on her part, for our statute expressly provides that separation by consent is not desertion, and that consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses, such refusal is desertion. (Civ. Code, secs. 99, 101.)

The contention of the appellant is, that the findings of the court in this regard are not sustained by the evidence. It may be conceded for the purposes of this appeal that the evidence was such that it would have supported contrary findings, or even that the judges of this court upon a review of the evidence contained in the record might come to a different conclusion as to the facts from that reached by the trial court.

But it is a well established rule that the trial court is the exclusive judge of questions of credibility of witnesses and weight of evidence, and that the determination of the trial court upon questions of fact is conclusive upon this court where there is any evidence fairly tending to support that determination. Looking at the evidence, it cannot be said that there is not evidence sufficient to support these findings. The character of the separation — i.e. as to whether or not it was by consent — is not to be determined solely by what occurred at the moment that the parties separated. There is nothing in our law that requires any written agreement of separation, or that requires the consent to be expressed in words. As stated in Nelson on Divorce and Separation (sec. 67): "It may be implied from the failure of the parties to make overtures after a quarrel; from acquiescence in the separation; . . . or from other circumstances which show the plaintiff's consent or that the separation was not against her will. The consent need not be express. It may be tacit, as where the plaintiff is willing and has made no objection." It is for the court trying the case to determine from all the facts and circumstances appearing in the case whether or not there was an absence of that consent to living separate and apart which is essential to constitute a desertion, and the acts, statements, and admissions of the parties subsequent to the cessation of cohabitation are clearly competent and material evidence in the determination of that question. In this case it appears that the parties had lived most unhappily together, and that finally plaintiff left the family home. In the light of subsequent events, it cannot be said that there was no foundation for the conclusion of the trial judge that this departure was not against defendant's will. The circumstances attending plaintiff's departure were not such as to make it impossible for defendant to make any overtures for a reconciliation, if she was opposed to the separation. Defendant made no effort to dissuade him from going. For nearly eighteen years the parties continued to live in the same city, separate and apart from each other, without the slightest attempt on the part of either to see or communicate with the other. Defendant never sought to obtain the divorce to which she was entitled, if the separation was without her consent. So long as he was permitted by defendant to see his child, he never refused to pay any bills that were contracted by her. Finally, when she brought her action against him for maintenance, in response to his offer to return and his request for a reconciliation and restoration, she refused the offer, and declared, not only to her attorneys, but also under oath on the trial of the maintenance suit, that she was unwilling to live with plaintiff under any surroundings or circumstances or conditions. It is clear from the record that the declared position of defendant for certainly three years preceding the commencement of this action has been that she insisted upon living separate and apart from her husband, and would consent to nothing else. Whatever might be the conclusion of a court as to which of these parties was at fault in the matter that led up to the separation, we are of the opinion that it cannot be said that the findings of the court as to the situation at the time of plaintiff's departure from the family home does not find support sufficient to sustain it in the evidence.

But were we in doubt as to this, there can be no question as to the sufficiency of the evidence to sustain the finding that on April 10, 1895, the parties were living separate and apart by mutual acquiescence and consent. The evidence demonstrates that at that time there was not only acquiescence and consent in the separation on the part of defendant, but a fixed determination on her part that such separation should continue to the end of the lives of the parties, and it is very clear therefrom that for some time prior to that date the separation had lacked that want of consent on the part of the defendant essential to constitute desertion.

The character of the separation of a man and wife is not forever established by the status at the time they cease to live together. What was originally a separation without consent may become a separation by consent, and whether or not it has become such is a question of fact, depending for its solution upon all the circumstances of the particular case. Desertion is a continuing offense, but it continues only so long as there is a want of consent to the separation on the part of the deserted party. Of course, the original offense is not destroyed by the fact that after the desertion has continued for the period essential to make it a ground of divorce, the status of the separation changes and the separation becomes in every way agreeable to the deserted party. She has still her right of action for a divorce because thereof, and is not obliged to condone the offense. (Benkert v. Benkert, 32 Cal. 467.) But she is compelled to assert that right within a reasonable time (Civ. Code, sec. 124, subd. 3), and the continuance of the separation after such change in the status is not a continuance of thedesertion. The parties are by the change placed in the position of living separate and apart by consent, and under the provisions of our statute (Civ. Code, sec. 101) either party may revoke his consent and in good faith seek a reconciliation and restoration, and the refusal of the other to conform thereto constitutes desertion on his or her part, which, if continued for one year, becomes a ground of divorce. Of course, a complete answer to the complaint for divorce in such a case would be the showing by the other party of any cause of divorce against the plaintiff, but it must be a subsisting ground of divorce, one upon which she was then entitled to a divorce, and not one barred by statute. Our statute, after providing that a divorce must be denied when the action is not brought within a specified time in cases of adultery and conviction of felony, provides that it must be denied in all other cases, where there is an unreasonable lapse of time before the commencement of the action (Civ. Code, sec. 124), and further provides that "Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same,with intent to continue the marriage relation, notwithstanding the commission of such offense." (Civ. Code, sec. 125) There cannot be the slightest doubt under the circumstances appearing here that if it be admitted that defendant originally had a good cause of action for desertion it is barred by the provisions of these sections.

The law of this state does not contemplate the enforcement of any such condition of the parties to the marriage as that contended for by defendant, a continuance of the marriage relation with the parties living separate and apart against the will of one of them. It does not place it within the power of one of the parties to insist that he or she shall be free from the obligations of marriage, and that at the same time the other party shall be compelled to remain his or her husband or wife, simply because the other party had been guilty of some offense constituting a ground of divorce, at a time so far distant that a divorce could not now be granted therefor.

It was held, as between these parties, in McMullin v. McMullin,123 Cal. 653, that the wife could not, under the circumstances of this case already detailed, enforce the duty of support against the husband, and it was said in that case that: "The cases touching this subject quite uniformly hold or imply that although the husband may have deserted the wife, yet the door for repentance is open for him, and is not necessarily closed by the fact of suit brought for maintenance; so, not because of any tenderness of the law for delinquent husbands, but because of itsaversion to separation of the spouses." The question of good faith of plaintiff in seeking reconciliation and restoration was, as said in the case last cited, one of fact, and it was there held, upon evidence not materially different from that adduced on the trial of this case, that the finding of the court to the effect that plaintiff's offer was made in good faith, could not be disturbed on appeal.

There is nothing in the objection that the evidence of the parties is not sufficiently corroborated. The main purpose of section 130 of the Civil Code is to prevent collusion, and here, as in Smith v. Smith, 119 Cal. 191, it is clear that there was no collusion. The attitude and declarations of the defendant to various parties at the time of and subsequent to the offer of April 10, 1895, are in themselves a sufficient corroboration.

The only remaining point made by appellant is, that the court erred in sustaining an objection to the following question asked plaintiff on cross-examination: "What reason did you have for expecting after these eighteen years of separation under all these conditions, that she would accede to this letter and go and live with you again?" If it be conceded that there was technical error in this action of the court, we are satisfied that it was not, under all the circumstances appearing in the record, of such a nature as to necessitate a reversal. It could not have affected the substantial rights of the parties.

The judgment and order are affirmed.

Shaw, J., Henshaw, J., and McFarland, J., concurred.