Wright v. Wright

JAMES, J.

Plaintiff brought this action to secure a divorce upon the ground, first, that she had been deserted by her husband, and, second, that the husband had failed to provide her with the necessaries of life, alleging that the desertion and the failure to provide had continued for more than one year prior to the commencement of the action. Defendant was personally served with the summons and complaint, but made no appearance in the action. Upon his default being entered the court proceeded to hear the testimony of plaintiff and her witnesses, and entered a judgment denying the relief prayed for. Plaintiff has appealed.

The testimony of the plaintiff was to the effect that at a time about five years prior to the commencement of the action her husband left the marital domicile, which was then in the city of New York, and went to Paris; that she knew where he was going at the time of his departure and

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that there had been no trouble between the two up to that date; that the husband sent money to her for several years amounting to about sixty dollars per month, and that a little more than a year prior to the commencement of her action he ceased to send money or make any provision for her support; that up to about the time that he ceased to send money he had written letters to her and she had responded thereto. In that connection'she testified as follows: “Q. And when did you find out he was going to leave you? A. Well, I commenced to suspect it. His letters, about maybe a little over a year after he left, his letters came fewer and fewer between and didn’t mention my going to where he was and didn’t mention coming to where I was, so I commenced to think that perhaps he wouldn’t come back. Q. Did you say anything about that in your letters to him? A. No, sir. Q. How did it come you didn’t write to him about it? A. Because I didn’t think it was my place. I thought if he wanted to come back he would come. Q. Did he finally cease writing to you altogether ? A. Yes, he did. Q. Did you finally cease writing to him also? A. Yes, I didn’t answer letters that I didn’t receive. Q. You never wrote him except to answer his letters? A. That was all. Q. Have you any of those letters with you? A.I have nothing; no.” The testimony further of the plaintiff was that for more than a year prior to the commencement of the action she had been living with and been supported by her mother. The mother of the plaintiff, as well as the mother of the defendant, gave testimony corroborative of this statement of the plaintiff, and both of the last-mentioned witnesses also corroborated the plaintiff as to the fact that she and the defendant had not lived together for more than one year prior to the commencement of the action. Another witness testified that the defendant was at the time of the trial living with him and that about two months before the trial the defendant had said that “he was not going back home any more, he was through there.” The statement to which the latter testimony referred being made within the year prior to the commencement of the action, was not sufficient to show that the desertion of the defendant began at a date remote enough to mark the commencement of the statutory period. (Sec. 99, Civ. Code.) Appellant in her