Whiting v. Whiting

CURTIS, J.

Plaintiff instituted this action against the defendant to obtain a decree of divorce on the ground of cruelty. Defendant in his answer denied the charge and filed a cross-complaint against the plaintiff, charging both cruelty and desertion. The court denied relief to either party.

The defendant appeals from the judgment and maintains that the charge of desertion set forth in his cross-complaint was fully established by the evidence in the ease, and that the decree should have been in his favor on this issue. He makes no complaint as to the decree denying him a divorce on the ground of cruelty. The sole question, therefore, on this appeal is whether, on the evidence in the ease, defendant was entitled to a decree of divorce on the ground of desertion.

In support of his contention that the decree should have been in his favor, defendant’s counsel, in his brief, makes copious quotations from the testimony of the defendant. In fact, by far the greater portion of his brief is taken up with such quotations of testimony. He then argues that this evidence constitutes a complete case under the law of this

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state relative to desertion. We might agree with the defendant in this contention, and were this the only testimony in the case, we might go further and hold that the judgment in this case be reversed, and that the defendant be awarded a decree. But the defendant directs us only to the testimony favorable to himself and leaves out of consideration the testimony in the case on behalf of the plaintiff. If this testimony, favorable to plaintiff, taken in connection with that on behalf of defendant, presents a substantial conflict in the evidence on the issue of desertion, then the finding of the lower court must be sustained.

Defendant alleges that plaintiff deserted him on the sixth day of December, 1918. Plaintiff admits leaving her home on the morning of that day in company with the defendant. When they arrived in the business district of the city the defendant took his grip, said good-by and went to his club. She was asked whether she left her husband or he left her; she replied that he left her. «She further testified that she remained away three or four days, when she returned to her home, but the defendant was not there. She remained there until the day before Christmas, and during this time the defendant lived at his club and was only at their home on one or two occasions, and then only for a short period of time. She states that it had been her custom for years to spend Christmas with her friends, the Cheneys, and that on the day 'before Christmas, with her daughter Madlyn, she left her home and visited the Cheneys. She remained there a few days when her daughter was taken with the “flu” and was sent to the hospital. The next day the plaintiff was taken with the same ailment and also went to the hospital. On January 21, 1919, after recovering from her illness, she returned to her home. She found the house in great disorder; the defendant was not there, and evidently had not been living there during her absence. On this day she took her personal belongings with her, left the home, and has never returned there to live. On the day before, January 20, 1919, at the request of Mr. Adams, the attorney for plaintiff, the defendant called at the office of the latter, when the following conversation took place as told by the defendant while on the stand as a witness in this case: “I went up there. He says, ‘Is there any chance, has this gone so far that there is no chance for reconciliation ? ’