Hardenbergh v. Hardenbergh

Cope, J. delivered the ojiinion of the Court—Baldwin, J. and Field, C. J. concurring.

This is a suit for a divorce on the ground of desertion. The parties were married in 1836, in the State of New Jersey, where they subsequently resided until 1849, when the plaintiff came to California. It appears that he returned to New Jersey in 1852, for the purpose, ostensibly, of removing his family, consisting of the defendant and three children, to this State; but he avers that the consent of the defendant to such removal could not be obtained, and that he was consequently defeated in the accomplishment of this purpose. This is substantially the cause of action as stated in the complaint; and it is alleged that a separation of the parties immediately ensued—the defendant remaining in New Jersey, where she still resides, and the plaintiff returning to this State.

The husband, being the head of the family, and bound for its support and maintenance, may change the matrimonial domicil at pleasure, and it is the duty of the wife to submit to the reasonable exercise of this right. We have no doubt that the refusal of the wife to accompany the husband upon a change of his residence, followed by an actual cessation of matrimonial [657]cohabitation, and unattended by any excusing or explanatory circumstances, would constitute sufficient evidence of desertion to authorize a divorce. We do not see upon what principle a different rule could be maintained, for whether the wife abandon the residence of the husband, or refuse to follow him. upon a change of his residence, the result, in fact, is the same, and the legal consequences should be the same also. If the determination of this case rested upon the question of the sufficiency of such evidence to establish the fact of desertion, we should have no hesitation in granting to the plaintiff the relief which he asks. But our opinion is that the case docs not present this question.

Bishop, in his work on Marriage and Divorce, (Section 506,) says: “ The offense of desertion is obviously composed of two ingredients, namely: 1st, an actual cessation of the matrimonial cohabitation between the parties, and, 2d, an intent to desert, in the mind of the party offending. Both must combine to make the offense complete. But it- is wholly immaterial whether the distance to which the parties remove from each other be great or small, except, perhaps, as illustrating, under circumstances, their intent; for the criterion in all cases is the intent to abandon.”