Hardy v. Hardy

California Supreme Court Jan 5, 1893 No. No. 14259Published

Before: Harrison

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Holding. The court held that the plaintiff failed to prove the defendant deserted her and that her prior conduct, including living in adultery with another man for over twenty years, forfeited her right to support. Furthermore, the court held that a prior judgment against the plaintiff on the same facts acted as a legal bar to the current action.

Issues

Whether the defendant's refusal to support the plaintiff upon her demand constituted desertion under Section 137 of the Civil Code.
Whether the plaintiff's prior conduct and long-term separation from the defendant forfeited her right to claim support.
Whether a prior judgment against the plaintiff on the same facts constitutes a bar to the current action.

Disposition. reversed

Quotations verified verbatim against the opinion

“Proof of willful desertion by the husband is therefore an essential element in the plaintiff’s cause of action.”

“The defendant’s plea herein that this judgment is a bar to the present action should have been sustained.”

Synopsis

Husband and Wife — Action for Permanent Alimony — Desertion by Husband. — The action for permanent maintenance of a wife by the husband, without a divorce, under section 137 of the Civil Code, can only be based upon the ground of desertion by the husband; ancj proof of willful desertion by him, or that, by reason of his cruelty or threats of bodily harm, she was forced to leave the family dwelling-place, is essential to support the action.

Id. — Wife must be without Fault — Defense to Action. — It is essential that the wife who seeks permanent alimony should be without fault on her own part; and the same grounds which would justify the husband in leaving her and living separate from her, or which would be a sufficient defense to any action by her for a divorce from him, will be a defense to this action; and if, in case of his desertion of her, her conduct after such desertion has been such as to forfeit her right to be received as his wife, she cannot maintain the action.

Id. — Adultery of Wife — Demand for Reception and Support — Refusal not Desertion. — A wife who has left her husband by abandoning the family dwelling-house, and remained away for more than twenty-seven years, having lived in adultery, under an assumed contract marriage, with another man, with whom she lived until his death, has thereby forfeited all right to be recognized or received by the husband as his wife; and the failure of the husband thereafter to comply with a demand of the wife that he should receive and support her as his wife does not constitute desertion upon his part.

Id.—Belief of Divorce Immaterial.—The fact that the wife, at the time she began to live in adultery, had been informed by the man with whom she was living, and believed, that her husband had procured a divorce from her, does not exonerate her from the consequences of her - act.

Id. — Action for Alimonv Independent of Right of Divorce.—The right of a wife to maintain an action against her husband for support and maintenance is independent of her right to maintain an action for divorce, and does not depend upon his continued desertion of her for a year; but the action may be instituted at any time after his desertion of her, when he fails to support her.

Id.—Judgment in Former Action — Res Adjudioata — Continued Desertion. — A judgment, in an action by a wife for permanent support and maintenance, that the facts alleged were insufficient to entitle her to the relief asked, is a bar to her right to maintain a subsequent similar action, in which no other act of desertion upon the part of the husband is alleged or claimed than that claimed in the prior action. Mere lapse of time since the act of desertion does not give her any additional cause of action, or increase the effect of the desertion for the purpose of entitling her to maintain such subsequent action.

Harrison, J. The plaintiff brought this action under the provisions of section 137 of the Civil Code to recover permanent alimony from the defendant without seeking a divorce. The complaint is framed with two counts, but as a demurrer to the first count was sustained, and the cause was tried upon the issues presented by the answer to the second count, only the matters therein alleged can be considered. The court rendered judgment in favor of the plaintiff, awarding her twenty dollars a month, from which, and from an order denying a new trial, the defendant has appealed.

The court finds that the defendant deserted the plaintiff on the 19th of December, 1887, and also that she had not deserted him, but that, by reason of his cruelty towards her, she was compelled to leave his house and live separate from him. These findings are challenged in the statement as unsupported by the evidence, and it is also contended on the part of the appellant that the evidence shows that the plaintiff deserted the defendant in 1860.

The plaintiff and defendant were married in 1853, and lived together as husband and wife in the vicinity of Martinez for nearly seven years. In February, 1860, the plaintiff left the defendant and went to live at the house of a friend near Pacheco. After remaining there a short time, she went to live at the house of another friend a few miles out of Pacheco, where she met a man by the name of Wagner, whom she had previously known, and who appears to have aided her with his money and friendship. About a year after she left the defendant, she was married to Wagner in San Francisco, [127]by a civil contract between them, and immediately went with him to Humboldt County, in this state, where they lived together as husband and wife, and continued to live in that vicinity and in Oregon until his death in 1883. During this period she bore five children to Wagner, and assumed his name, and was known as Mrs. Wagner, not only where they lived, but also in her former place of residence in Contra Costa County and in other parts of California, and corresponded with her friends under that name. The defendant continued to reside in the vicinity of Martinez, and at some time in the year 1887 the plaintiff returned to that place, and on the 19th of December of that year, in the presence of a Mrs. Lander, with whom she was stopping, and whom she had asked to accompany her as a witness, saw the defendant at the county treasurer’s office in the court-house in Martinez, and said to him: “ Mr. Hardy, I demand that you receive and support me as your wife.” The defendant made no reply, but turned and went away, and thereafter the plaintiff commenced this action.

Hardy v. Hardy

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