Ingraham v. Ingraham

WASTE, P. J.

Plaintiff was granted an interlocutory decree of divorce, on the ground of willful desertion, and defendant appeals. The original complaint alleged that “defendant willfully and without cause, or provocation, deserted and abandoned plaintiff, with intent to desert said plaintiff, and ever since said time has continued to live separate and apart from plaintiff without her consent, and against her will, and with intent to desert and abandon her, and without fault of plaintiff.” An amended and supplementary complaint was filed, setting forth the ground of desertion in the same form, and adding a second count, based on allegations of extreme cruelty. Defendant answered, denying the allegations of the complaint, and at the same time filed his cross-complaint, alleging willful desertion and extreme cruelty on the part of plaintiff.

The trial court found for the plaintiff on the ground of willful desertion alone, and decree followed. The finding as to willful desertion is couched in almost the identical language of the allegation hereinbefore quoted. Appellant attacks this finding upon the ground that the testimony introduced in the action and on which the finding is based is not sufficient to support the judgment or decree in that regard.

[580]

“Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.” (Civ. Code, sec. 95.) Sections 96, 97, and 98 of the same code set forth the different classes of facts which may manifest such desertion.

(Devoe

v.

Devoe,

51 Cal. 543.) Section 96 is as follows: “Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. ’ ’

[1]

The proof adduced at the trial of this action estabv lished the fact that the plaintiff and defendant, for several years, and up to the time of the commencement of the action continued to live in the same houSe, but occupying separate rooms. The desertion complained of by the plaintiff consisted of the gradual, and finally, the. persistent, refusal of the defendant to have any matrimonial intercourse with the plaintiff as husband and wife. The corroboration in this regard was merely the testimony of other witnesses that the parties occupied separate bedrooms in the house, and was not of the character and degree required by the code section relating to corroboration in divorce eases.