Tirrell v. Tirrell

In the recent case of Dennis v. Dennis,68 Conn. 186, 197, this court said: "The State desires good citizens. It regulates divorce procedure in its own interest. A divorce cannot be had except in that court which the State authorizes, and for those causes only, and with those formalities, which it has by statute prescribed. As the State favors marriages for the reasons stated, so the State does not favor divorces; and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the married parties, which seem to the legislature to make it probable that the interests of society will be better served and that the parties will be happier, and so the better citizens, separate, than if compelled to remain together. The State allows divorces, not as a punishment to the offending party nor as a favor to the innocent party, but because the State believes its own prosperity will thereby be promoted."

One of the offenses for which the Superior Court is authorized to grant a divorce is "wilful desertion for three years, which total neglect of duty."

Desertion by a husband of his wife, as intended by this statute, means "a wilful absenting himself from the society of his wife, coupled with the intention on the part of the husband to continue to live apart, in spite of her wish, and without any intention to return to cohabitation." The Queen v. Cookham Union, L. R. 9 Q. B. Div. 522, 527; Bennett v.Bennett, 43 Conn. 313; Southwick v. Southwick, 97 Mass. 327,329; Williams v. Williams, 130 N.Y. 193. It is not alone a specific act, but a continuing course of conduct. Heard v.Heard, L. R. (1896) P. D. 188, 191.

In his memorandum of decision (which is made a part of the finding) the judge who tried this case says: "Within three years next before the commencement of this action, the defendant was ordered to and did pay a certain sum per week for the support of the plaintiff, his wife. The question now arises, whether or not, under these circumstances, there has been a wilful desertion, with a total neglect of duty, for the three years required by the statute. If wilful or utter desertion for three years constituted a complete ground for divorce, I should be inclined to the opinion that a divorce should be granted; but our law upon the subject goes much further, and requires, in addition to wilful desertion for three years, that there shall be a total neglect of all duty. One of the chief duties and obligations which result from the marriage contract is that of support on the part of the husband. This duty it appears from the evidence the defendant has performed for several months of the required term of three years; and therefore I have reached the conclusion that the plaintiff is not entitled to a divorce."

This language indicates that the trial judge regarded the support furnished to his wife by the defendant, by the order of court, as having the same effect upon the question of his desertion, that the furnishing by him of such support voluntarily would have had, and this as matter of law; and that there could not be in this case a desertion with total neglect of duty for the period of three years, within the meaning of the statute, because support had been in fact furnished for a part of the time by the defendant, although by compulsion and against his will, and when the alternative was imprisonment.

We are compelled to differ from this view. We think it gives to the fact of the involuntary furnishing of support by the defendant to his wife a greater weight and significance than it justly ought to have. The statutory offense of desertion, as we have seen, contains in it the intent to put an end to the marital condition, and the intent never to renew it. A total neglect of duty, if voluntarily persisted in, would ordinarily furnish satisfactory evidence that the intention in both respects existed. If the neglect of duty is involuntary, then the intent to desert must be uncertain. Bennett v. Bennett,supra, And so, on the other hand, if the performance of the duty is by compulsion and against the will of the party, then the intention to desert cannot be said not to exist. Yeatman v. Yeatman, L. R. 1 P. D. 489, 491; Magrath v. Magrath,103 Mass. 577.

The fact that the defendant furnished support to his wife by the order of the court, was an evidential fact proper for the court to consider. The error was in regarding it, not as evidence but as a fact which modified the words of the statute, that is, as a rule of law.

It is entirely possible that the court upon another trial, and treating the fact of the compulsory furnishing of support only as an evidential one, may come to the same conclusion which was reached in this case; and it is equally possible that a different conclusion may be reached. As the latter result is possible, the error has done injury to the plaintiff and she is entitled to have a new trial.

There is error and a new trial is granted.

In this opinion the other judges concurred.