Volkmar v. Volkmar

ANGELLOTTI, J.

This is an appeal by the plaintiff, upon the judgment-roll, from a judgment given in an action for divorce on the ground of desertion, whereby it was adjudged that the plaintiff should take nothing by his action, and that he pay to the defendant, as alimony, the sum of thirty dollars per month.

The contention of plaintiff is, that the judgment for alimony is not supported by the findings.

The complaint alleges, in the ordinary form, a desertion by defendant, commencing on December 9, 1901, and continuing to the date of the commencement of this action, August 4, 1903. The affirmative allegations of the answer, upon which the claim for alimony is based, are of course all deemed denied.

The findings, so far as material, are as- follows, viz.: Plaintiff and defendant intermarried on December 7, 1899, and have ever since been husband and wife. The defendant has never deserted plaintiff. Plaintiff and defendant have lived separate and apart ever since December 9, 1901, but there has never been any intention on defendant’s part to desert or abandon plaintiff. Ever since December 9, 1901, defendant

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has been willing and ready to live with the plaintiff as his wife. Defendant has no property or means by which to support herself, and is now, and for some time has been, dependent upon the charity of friends for her support and maintenance. Plaintiff is in receipt of an income of one hundred and five dollars per month, and is financially able to contribute to defendant’s support.

The judgment for alimony must find its entire support in these findings.

Counsel have discussed very fully the questions as to whether under our statute (Civ. Code, secs. 136, 137), a court, in denying a divorce to the husband in an action brought by him, is authorized to provide for the permanent maintenance of the wife, who has not sought a divorce, or shown a willful desertion by him, and whether an action for support and maintenance by the wife can be maintained by her on any other ground than that of the husband’s willful desertion. We do not deem it necessary to consider these questions, for it is clear that in no case should a court decree permanent alimony to the wife living separate and apart from her husband, in the absence of facts showing an obligation on the part of the husband to support her under such conditions. The effect of the decree here is to compel the husband to support the wife while she continues to live separate and apart from him.