McLachlan v. McLachlan

YORK, J.

This appeal is from an interlocutory decree of divorce granted to plaintiff, and from an order denying the defendant’s motion for a new trial based upon the ground that the decision is contrary to the evidence.

There was evidence introduced proving or tending to prove the following facts: The plaintiff and defendant intermarried on the twentieth day of December, 1910, at Victoria, Texas. In the spring of 1912 they came to El Centro, which is situated in the Imperial Valley in California, where they lived for about two months, after which defendant returned to Victoria. However, she made another trip to El Centro the following winter, and in the spring of 1913 again returned to Victoria because of her ill health, and has since then lived in Victoria with her mother, separate and apart from her husband, except for visits made each year by the plaintiff to Victoria. His last visit was made at Christmas time in 1924. Meantime, the plaintiff was employed at El Centro earning a salary of $533 per month, and in addition operated a 160-acre cotton ranch, which he owned. At various times during the years, the plaintiff requested the defendant to come to California and make her home with him at El Centro, but she refused on the ground that her health would not permit her to live in that climate. The plaintiff in 1920 offered to procure a home for the defendant and their son (who was born in 1915) in San Diego, California, in order that he might be near enough to see them, but defendant refused the offer, giving as her reason therefor the fact that plaintiff could not afford it. Just before leaving California for his annual visit to defendant in December, 1924, plaintiff arranged to rent a comfortable house in Calexico, with the view of making it a home for himself and family, but when he broached the subject to defendant, she informed him that she would never come to Imperial Valley, whereupon he investigated business opportunities at Victoria, but was unable to find anything attractive or which gave indication that he could make a living there.

Plaintiff left Victoria early in January, 1925, and early in the fall of that year he wrote defendant that he had

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decided to plan the future for himself alone. ’ After a delay of some months, the defendant, in company with their son, made a trip to California, but remained only five days, and in February, 1926, plaintiff filed action for divorce on the ground of desertion. The cause came on for trial before a jury, which failed to agree, whereupon the court discharged them and determined the issues without their aid, granting to the plaintiff an interlocutory decree of divorce from defendant on the ground of wilful desertion.