Howdershell v. Howdershell

RICHARDS, J.

This is an appeal by the defendant from a judgment of divorce in plaintiff’s behalf on the ground of desertion. The sole contention of the appellant herein is that the evidence in the ease shows that the separation

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between the parties, upon which the plaintiff’s claim of desertion on the part of the defendant is based, was a voluntary separation occurring as the result of an agreement in writing between the parties for such separation and for a settlement of their property rights. Defendant claimed at the trial and contends upon this appeal that, under section 99 of the Civil Code, “separation by consent with or without the understanding that one or the other party will apply for a divorce is not desertion.” The difficulty with the defendant’s contention in that regard does not arise out of the section of the code above cited, but arises out of its application to the facts of the case at bar. These facts as found by the court and as fully supported by the evidence are briefly these:

The parties to this action intermarried in the year 1904, and lived together as husband and wife until some time in the month of April, 1917, at which time they were residing in the city of Los Angeles. For some time prior to the latter date their marital relations had been inharmonious to an extent which seemed to render their separation imminent and inevitable. On or about April 22, 1917, a meeting was held between the plaintiff and defendant and two friends of theirs, a Mr. and Mrs. Hamilton, with a view to attempting to bring about a reconciliation. After considerable discussion the effort of these friends to effect a reconciliation proved unsuccessful, and the plaintiff, left his home where the interview occurred and went to his office in another part of the city, to which shortly thereafter the defendant sent Mr. Hamilton with a message, stating that she did not wish to see the plaintiff any more and directing him not to return to their home. Plaintiff, however, returned to the home, but only for the purpose of removing his effects to a rear bedroom therein, which he occupied for a short while thereafter but with no intercom's' with the defendant. A few days later, at the defendant’s request, the plaintiff prepared and presented to the defendant the written agreement for a division of their property upon which the defendant herein relies as showing a separation by consent. The trial court embodied this writing in its findings, but in connection therewith expressly found that said writing was entered into after the defendant’s desertion of the plaintiff had been accomplished by her re