Ewing v. Ewing

EDMONDS, J.

This case came on for trial upon pleadings by which each of the parties charged the other with

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cruelty. The appellant then filed an amended complaint alleging a cause of action for wilful desertion and the respondent filed an amended cross-complaint upon the same ground. At the time the suit was brought they had been separated less than three months, but more than one year had elapsed between the date of separation and the filing of the amended pleadings. An interlocutory decree granted the respondent upon her cross-complaint is challenged by the appellant upon two grounds. He asserts that the time during which an action for divorce is pending may not be included in computing the one-year period during which wilful desertion must continue if it is to be the basis for divorce, and that if such period may properly be included, the evidence does not support a finding that his desertion continued for one year prior to the filing of the amended cross-complaint.

Where one spouse withdraws in good faith from the other because it would be improper to live together while divorce proceedings are pending, such separation will not constitute desertion within the meaning of the divorce statute.

(Kusel

v.

Kusel,

147 Cal. 52 [81 Pac. 297];

Vickers

v.

Vickers,

95 W. Va. 323 [122 S. E. 279, 41 A. L. R. 266];

Hurning

v.

Hurning,

80 Minn. 373 [83 N. W. 342];

Floberg

v.

Floberg,

358 Ill. 626 [193 N. E. 456];