Heritage v. Heritage

I concur with the majority in the opinion that the trial judge committed reversible error (a) in holding that a period of desertion began April 11, 1922, when the offer to return made by the libelant to the libelee was accepted only upon condition which was in effect no acceptance and (b) in holding that on November 21, 1922, when the libelee wrote to the libelant definitely offering to return to him, a full six months' period of desertion from and after April 11, 1922, had been completed. Libelant's letter of April 10 did not offer libelee a home prior to May 1; and before May 1 had arrived libelant had informed libelee that he would not be ready for her for at least two weeks, which time was still further extended by reason of libelant's absence in Panama. The next letter to her was dated May 20, 1922. It called for further delay. It directed the shipment of their furniture and suggested that the libelee stay at a hotel until receipt of a message from the libelant telling her that she might come to him. In an earlier letter to the libelee libelant had said, "It takes a week to ten days for a shipment of this kind to come through." Therefore, in the circumstances recited, the wife's failure to come to her husband in Edgewood could not of itself have amounted to desertion until at least a week after her receipt of his letter of May 20, and she would have been justified in waiting for a further message telling her that she might come. Because of these errors of the trial judge, which are sufficiently presented by assignments, I concur with the majority in so far as it holds that the decree appealed from should be reversed.

I do not, however, concur in the view that a final decree dismissing the libel should be entered in this court. In my opinion the case should be remanded for a new trial.

As above set forth, the theory upon which the trial judge decided the case in favor of the libelant is untenable. It is untenable in holding, from the facts stated, that a six months' desertion period began April 11, 1922. It is probably untenable in concluding from said premises that before November 21, 1922, a right of action had accrued to the libelant which rendered the libelee's offer of that date to return ineffective as a defense — such conclusion being based upon the theory that the Hawaiian divorce statutes as to a six months' desertion period were applicable notwithstanding the fact that the libelant was not then domiciled in Hawaii. An opinion upon this latter point has not been deemed essential to a determination of the case. Upon the theory adopted by the trial judge I concede that it appears that a new trial could not benefit the libelant. But the theory adopted by the trial judge was not the only one presented by the pleadings and the proof. Under the pleadings the libelant could have shown that a desertion period began long prior to April 11, 1922, and the record before us contains evidence which in part at least supports this last named theory. In 1914 the libelant left New York to take a position as traveling salesman with headquarters in Cincinnati, where the libelee visited him during one, or, according to her testimony, during two summers. Libelant remained in Cincinnati during the years 1915, 1916 and part of the year 1917. His testimony, contradicted by libelee, is that he wanted libelee to come and live with him in Cincinnati and discussed the subject with her during the holidays of 1915-1916. She did not come, but remained with her two sisters in New York, libelant remitting amounts to cover her household and other expenses. In 1917 libelant went to Washington, D.C., and in November of that year was commissioned a captain in the national army, being stationed first at Washington and later at Edgewood Arsenal, Maryland, not far from Baltimore. During the years 1918 and 1919 libelant visited libelee occasionally in New York, spent a short time on sick leave with her in Maine and was with her on the occasion of visits to her brothers' homes in Baltimore. According to libelant's testimony, libelee did not want him to stay in the army and requested him to give up the army and to come back to live in New York. This the libelee denies. In September, 1919, libelant visited libelee in New York. At that time a quarrel ensued between them because of a misunderstanding over an invitation to a wedding reception which was addressed to the libelant which did not include the libelee and which the libelant therefore did not accept. Said the libelant in his testimony: "It started quite a serious and heated argument which was entered into by other members of the family. The result was I packed my bag and went to the train and back to Washington. At that time I wanted her to come to Washington with me and give up New York because we were getting nowhere." Thereafter libelant continued to send checks as he had done theretofore to cover bills sent him by the libelee, with an additional allowance of $30 per month for incidentals, but in other respects there were for several months no further communications between the parties. The transcript shows no further cohabitation between them after September, 1919.

It is true that the following year libelant, under circumstances which need not here be recited, signed the statement of January 7 referred to in the leading opinion, and it is also true that in 1921 libelant desired a divorce and so informed the libelee in letters quoted in part in that opinion; but these facts do not necessarily preclude proof of desertion on the part of the wife, begun at least as early as 1919. Where a plaintiff is not entitled to recover on a theory on which the case is tried, but there is another theory on which a verdict for the plaintiff under the facts could be sustained, the judgment will be reversed and the cause remanded for a new trial; and this has been held to be true even though it requires an amendment of the petition to include such other theory. See Woodson v.Metropolitan Street Railway Co., 224 Mo. 685, 20 Ann. Cs. 1039, 30 L.R.A. (N.S.) 931; and 2 R.C.L., Sec. 240, p. 286, note 12.

The trial judge made no direct finding of facts upon which could be predicated a conclusion that there was or that there was not a desertion of the husband by the wife in 1919, and in my opinion his decision assumes no such finding. He said in part, "Whatever may have been the causes for living separate and apart, and it is evident from the record that neither was desirous of resuming marital relations, yet it cannot be held that this situation is controlling when considered in the light of the incidents beginning with April, 1922." The judge's extensive review of the evidence begins, after a brief introduction, with the libelant's letter of April 10, 1922, and goes into detail as to the events which succeeded that date. It does not attempt to weigh the evidence as to grounds for divorce existing before that date. If it assumes, as the majority holds that it does, that prior to April 10, 1922, the parties were living separate and apart by mutual consent, it bears internal evidence that the trial judge did not intend to find, and did not find, that the separation started that way. Referring to the libelee, he said, "Had she cared sufficiently for the libelant and for his career she would have followed him to whatever posts he was assigned. Apparently, however, she desired more to live with her relatives in New York and was willing to sacrifice a home with her husband in order to be with them. No doubt that as long as he continued to remit funds to her she would have been content to continue living separate and apart from him. It was her duty to live with him and when she wilfully persisted in remaining away from the home he was ready to provide for her, then he was justified in seeking to sever the marriage ties."

The trial court made no direct finding or conclusion (1) as to whether the separation of the parties in the first instance was due (a) to the fault of the libelant, (b) to the fault of the libelee, or (c) to mutual consent of the parties; (2) as to the domicile of the libelant, or the period of the same in any one jurisdiction, during the time of the separation of the parties prior to the libelant's assignment to duty in Hawaii; (3) as to whether or not a right of action against the libelee for desertion had accrued and was available to the libelant on or before November 21, 1922, in the place where he was then domiciled.

The facts above referred to are all material and many of them are essential. By analogy the case of Barnes v. Williams, 11 Wheat. (24 U.S.) 414, applies in part. The syllabus is as follows: "Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, this court will not render a judgment upon such an imperfect special verdict, but will remand the cause to the court below, with directions to award a venire facias denovo."

But even if the trial judge had made distinct findings of fact against the libelant upon the theory of the case hereinabove last referred to, such findings alone would not be determinative of the question as to whether or not the case should be remanded for a new trial. Upon hearing on writ of error In Re Nelson,26 Haw. 809, 822, this court said: "Upon the evidence adduced the judgment under review cannot stand. As to whether judgment for the petitioner should now be entered by this court (or directed to be entered in the court below) or the cause be remanded for a new trial, it has been held in this jurisdiction that `if the court is of the opinion that other evidence may be produced on a new trial or is unable to say that such evidence may not be produced, it will not render final judgment but will remand the case for a new trial' and that `before an appellate court can render final judgment on the reversal of a judgment for insufficiency of the evidence it is not enough that it appears improbable that the appellee will be able to recover on a new trial, but it must appear that he cannot'" (citing Territory v. Howell, 25 Haw. 320, 325, 326; 2 R.C.L. 282, Sec. 237; and 4 C.J., pp. 1185-1188). The same principle was recognized in Orth v. Basker, when, on October 8, 1928, by oral order not reported in the published opinions, this court overruled a motion to modify the order granting a new trial reported in 30 Haw. 520, 525.

The evidence of the libelant as to his domicile and right of action in 1922 and his subsequent right of action in Hawaii, based thereon, may have been incomplete, but it does not appear to me to be impossible or even improbable that other evidence entitling libelant to a decree may be produced upon a new trial.

It is said in the leading opinion that the evidence at the hearing showed condonation by the husband of any desertion of which the wife may have been guilty prior to April 10, 1922. And the facts relied upon to show such condonation were the written communications between the parties at and after that date "followed by a remittance by the libelant of money with which to ship her furniture to the place he had designated as their future residence and which he said would be ready for their occupancy on May 1." "This condonation," it is said, "precludes the libelant from predicating any action for divorce on such desertion" and thus shows that a new trial on the issue of the wife's desertion prior to April 10, 1922, could not avail the libelant. But condonation is a mixed question of law and fact (see 2 Bishop, Marriage and Divorce, 6th Ed., p. 59) and from the facts set forth in the leading opinion there is no irrebuttable presumption of condonation. A mere offer of reconciliation does not amount to condonation (Johns v. Johns, 29 Ga. 718; Goeger v.Goeger, 59 N.J. Eq. 15, 45 A. 349) and until accepted it may be withdrawn like any other offer. (2 Bishop, Marriage and Divorce, 6th Ed., p. 40.) In the case at bar the trial judge found that libelant's offer of April 10, 1922, was not definitely accepted by the libelee until November 21, 1922, and in my opinion the finding was supported by the evidence. In the meantime, according to the conclusion of the trial judge, a right of action had accrued to the libelant, which fact made the acceptance ineffective to defeat libelant's right of action. The majority has held, and I have concurred in the ruling, that the trial judge's conclusion was erroneous as applied to the theory upon which he decided the case. But it does not follow therefrom that such a conclusion would not have been justified upon the theory of a desertion begun in September, 1919.

The justice of the case seems to me to demand that the libelant be afforded an opportunity of a direct submission and ruling upon all the issues involved and of adducing further proof in support of his libel.