Wade v. Wade

TEMPLE, C. The parties are husband and wife. In 1884 plaintiff brought suit under section 137 of the Civil Code to obtain a decree for a separate maintenance, charging the defendant with desertion. She obtained a decree March 5, 1885, requiring defendant to permit her to continue to occupy her then residence, which was a house belonging to defendant, and awarding her $27.50 per month for her support. A few days after the decree was entered, to wit, as early as March 20, 1885, defendant returned to plaintiff, since which time the [577]parties have cohabited together as husband and wife. August 14, 1889, upon the application of plaintiff, an order was obtained from the superior court of the city and county of San Francisco, requiring defendant to show cause why the allowance should not be increased. The defendant appeared and-made his showing in answer to the order, and, among his reasons why the allowance should not be increased, alleged “that ever since the month of September, 1885, said plaintiff and this defendant have lived together, occupying the same house and cohabiting together as husband and wife,” and asks that the decree be vacated and set aside. It is claimed that the act alleged amounts to condonation. The parties seem agreed that, if there had been a condonation, the allowance should be discontinued. Whether the facts show a condonation is the point to be determined. It is claimed that she consented to matrimonial intercourse through a misapprehension of the law. She has a horror of divorce, and feared he would have a cause of action against her to obtain one, unless she consented. It is also claimed that, admitting that the acts of the plaintiff amount to condonation, still such condonation has been revoked, under section 121 of the Civil Code, by conjugal unkindness on the part of the defendant, which, though not amounting to a cause for divorce, is sufficiently habitual and gross to show the conditions were not accepted in good faith. Neither party seems to have had the slightest suspicion that the resumption of marital relations would have any effect upon the right of the wife to her monthly allowance, for the husband faithfully paid it month by month. If this constituted a mistake of law, it was mutual. But I think it did not amount to that. Plaintiff says she did not wish her husband to get a divorce, and consented to marital intercourse to prevent his having a good ground for a divorce. In this case she was not at all in error. It did have that effect, and it would seem from this that she at least fully understood the consequence of the act. But her willingness to restore conjugal relations resulted from the false impression that her refusal would furnish a ground for divorce. Forgiveness is an amiable trait, and it is a pity that she simulated a virtue for a personal end, but the effect must be the same. Why she did not wish her husband to get a divorce is utterly immaterial. Suppose she had condoned her husband’s offense under the mistaken im