McMullin v. McMullin

BRITT, C. Plaintiff is the wife of defendant. She prosecutes this action against him under section 137 of the Civil Code, for maintenance without divorce. The parties were married to each other on February 15, 1871, and defendant deserted the plaintiff November 15, 1877; this action was begun January 4, 1894. The court found that defendant’s desertion of plaintiff was willful, and that it continued until April 10, 1895— a time above fifteen months after the commencement of the action—but that on said April 10th defendant offered to provide a home for plaintiff "at any reasonable place of her own choosing and to return and live with her as husband and wife, and also requested plaintiff to return and fulfill the marriage contract. Said offer was made by defendant in good faith”; and that plaintiff rejected it. The court allowed plaintiff certain sums for temporary alimony and expenses of the action, but rendered judgment denying her demand for permanent support.

Willful desertion must continue for one year before it is a ground for divorce (Civ. Code, sec. 107); and it is provided in section 102 preceding, that if, prior to the expiration of such time, the party deserting "returns and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured”; and in Benkert v. Benkert, 32 Cal. 467, it was held that an offer to return, made after expiration of the time necessary to give the ground for divorce, will not, if refused, defeat the action of the injured party for divorce. Plaintiff contends, in support of her appeal, that a rule like that in Benkert v. Benkert should obtain in this case, and that the defendant’s offer to return came too late. The eases, however, differ materially. (See Hardy v. Hardy, 97 Cal. 125, 130.). In Benkert v. Benkert, dissolution of the marriage bond was sought; here the plaintiff, as she testified at the trial, and as her suit shows, desires no divorce, but insists that the marriage relation shall continue. Manifestly, to enforce the duty of support against defendant when, as the court finds, he seeks in good faith to fulfill his obligations, and at the same time to exonerate plaintiff from the correlative duty of living with defendant [655]at some reasonable place of abode (Civ. Code, sec. 156), would be the granting of a limited divorce, for which our law makes no provision. (Hagle v. Hagle, 74 Cal. 608, 612; Peyre v. Peyre, 79 Cal. 336.) The eases touching this subject quite uniformly hold or imply that although the husband may have deserted the wife, yet the door for repentance is open for Mm, and is not necessarily closed by the fact of suit brought for maintenance; so, not because of any tenderness of the law for delmquent husbands, but because of its aversion to separation of the spouses. (Schraeder v. Schraeder, 26 Ill. App. 524; Johnson v. Johnson, 125 Ill. 510, 519; Taylor v. Taylor, 4 Desau. 167; Briggs v. Briggs, 24 S. C. 377; Almond v. Almond, 4 Rand. 662, 667; 15 Am. Dec. 781: Head v. Head, 3 Atk. 547, 551; Walker v. Laighton, 31 N. H. 111.)