application for a divorce.80 Without such proof the court has no jurisdiction to grant a divorce.81 A man's residence is that place where his family dwells, or which he makes the chief sat of his affairs and interests.82 By section 129, California Civil Code, it is provided that in actions for divorce the presumption of law that the domicile of the husband is the domicile of the wife does not apply. After separation each may have a separate domicile, depending upon actual residence. To constitute a residence, within the legal meaning of the term, there must be a settled fixed abode, an intention to remain permanently, at least for a time, for business or other purposes.83 In New Hampshire, an offense committed when both parties were out of the jurisdiction of the court, is not a ground for divorce.84 $ 2684. Recrimination: The doctrine of recrimination, or compensatio criminum, is applicable in suits for divorce, and the several offenses which, by the statute, constitute grounds for divorce, are pleadable in bar to such suits, the one to the other, within the principles of the doctrine.85 To be an absolute bar, the conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defendant.86 § 2685. Second action. A plaintiff may bring a second action for divorce for subsequent acts of adultery. The practice for resorting to supplemental complaint is not compulsory.87 § 2686. Verdict of jury. The Statute of Divorce which authorizes a decree to be" rendered upon full and satisfactory evidence," requires the evidence to be satisfactory to the judge 80 Bennett v. Bennett, 28 Cal. 599. 81 Id. 82 Matter of Hawley, 1 Daly, 531. 83 Frost v. Brisban, 19 Wend. 11; 32 Am. Dec. 423; Matter of Hale, 2 N. Y. Leg. Obs. 139. 84 Frost v. Frost, 17 N. H. 251. Jurisdiction for divorce as dependent upon domicile. See Dickinson v. Dickinson, 65 Hun, 516; Hunt v. Hunt, 72 N. Y. 218; 28 Am. Rep. 129; Watkins v. Watkins, 125 Ind. 163; Burtis v. Burtis, 161 Mass. 508; Rizney v. Rizney, 127 N. Y. 408; 24 Am. St. Rep. 462. 85 Conant v. Conant, 10 Cal. 249; 70 Am. Dec. 717. 86 Id.; Cal. Civil Code, §§ 122, 123. As to recrimination, see Burk v. Burk, 44 Kan. 307; 21 Am. St. Rep. 283; Wheeler v. Wheeler, 18 Oreg. 261; Morrison v. Morrison, 142 Mass. 361; 56 Am. Rep. 688. 87 Cordier v. Cordier, 26 How. Pr. 187. as well as the jury; and where the verdict was in favor of the plaintiff, but the judgment in favor of the defendant, it will be presumed, in the absence of any statement of facts, that the judge correctly disregarded the verdict. The verdict of a jury in a chancery case is only advisory to the chancellor or to the trial court.88 The plaintiff complains, and alleges: I. [Allege marriage as in previous form.] II. [Allege residence as in previous form.] III. That on or about the year the said defendant, disregarding the solemnity of his marriage vow, will-' fully and without cause deserted and abandoned the plaintiff, and ever since has and still continues so to willfully and without cause desert and abandon said plaintiff, and to live separate and apart from her, without any sufficient cause or any reason, and against her will, and without her consent. [DEMAND OF JUDGMENT.] 89 § 2688. Desertion, what is. Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.90 Persistent refusal to have matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion.91 Where one of the parties is induced, through the stratagem or fraud of the other, to be absent, and during such absence the other departs with intent to desert, it is desertion by the latter.92 Departure or absence caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended, is not desertion by the absent party, but is by 88 Still v. Saunders, 8 Cal. 281; see, also, Goode v. Smith, 13 id. 84; Duff v. Fisher, 15 id. 376; Wingate v. Ferris, 50 id. 105. 89 Other allegations in regard to custody of children, support and division of common property, according to the facts of the case, can be added, according to the preceding form. 90 Cal. Civil Code, § 95. 91 Id., § 96. 92 Id., § 97. the other.93 Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. Desertion may be cured within the statutory period (one year) by a return and offer in good faith to fulfill the marriage contract, and solicitation or condonation; and if the other refuse such offer and condonation, it is desertion from the time of such refusal.96 The wife must abide by the husband's selection of a home, or it is descrtion on her part.97 But if the place or mode of living selected by the husband is unreasonably and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her objections are made known to him.98 Desertion consists of an actual cessation of matrimonial cohabitation between the parties, coupled with the intent to desert in the mind of the offending party.99 The intent is presumed from proof of the fact of prolonged abandonment without apparent cause. The word "willful," as used in the statute concerning divorces, signifies "intentional," and does not imply malice.101 If the desertion has continued two years (one year), the offer of the offending party to return and live and cohabit with the other will not defeat an action for divorce, unless the offer is accepted and acted upon.102 And a wife's desertion of her husband, under the California statute, is cured, if she, before the expiration of the statutory period required to make the desertion a cause of divorce, and when in the vicinity of her husband's home, offers to go back and resume the performance of her marital duties, and he refuses to receive her. Under such circumstances, an actual physical return is not necessary. From 93 Cal. Civ. Code, § 98. 94 Id., § 99. 95 Id., § 101. 96 Id., § 102; Andrews v. Runyon, 65 Cal. 629. 97 Cal. Civil Code, § 103. 98 Id., § 104; see Hardenbergh v. Hardenbergh, 14 Cal. 654. 100 99 Id.; Morrison v. Morrison, 20 Cal. 431; also, Sisemore v. Sisemore, 17 Oreg. 542; Alkire v. Alkire, 33 W. Va. 517; Williams v. Williams, 130 N. Y. 193; 27 Am. St. Rep. 517. 100 Morrison v. Morrison, 20 Cal. 431. 101 Benkert v. Benkert, 32 Cal. 467. 102 Id. the date of his refusal the husband is deemed to have deserted the wife.103 But where, on the liability of a husband to support his wife, they separate voluntarily, and she returns to her relatives, the separation is not a willful desertion on his part, though he should cease to correspond with her.104 To constitute a ground for divorce under the California statute, willful desertion must continue one year.105 § 2689. On the ground of conviction for felony. [TITLE.] Form No. 617. The plaintiff complains, and alleges: I. [Allege marriage as in preceding forms.] II. [Allege residence as in preceding forms.] ..... term of in the county of Court state of Cali ... fornia, and before this action, the defendant was [duly] convicted of felony, to-wit, for the crime of ... and [duly] sentenced by the said court to confinement in the state prison of said state for the term of .... years, and in pursuance of the said sentence the defendant is now confined in said state prison [or, if the sentence has expired, or a pardon was granted, omit the words "is now confined in said state prison," and add, "was confined in said state prison," that the period of his sentence therefor terminated on the day of... ......... 18.., at which date he was discharged therefrom (or was pardoned)]. [DEMAND OF JUDGMENT.] 2690. Divorce on ground of felony. A felony is a crime which is punishable with death or by imprisonment in the state prison.106 The action for divorce, for this cause, in California, must be brought within two years after a pardon, or the termi 103 Andrews v. Runyon, 65 Cal. 629; 4 West Coast Rep. 81. 104 Ingersoll v. Ingersoll, 49 Penn. St. 249; see, also, Cal. Civil Code, §§ 99-101. 105 Cal. Civil Code, § 107. If the court can gather the requisite facts from the complaint, as if it charge willful desertion by the defendant, without any reasonable cause, fixing clearly the time thereof, and alleging its continuance for a period of one year, and up to the commencement of the action, it will be sufficient. Calvert v. Calvert, 15 Col. 390. nation of the period of sentence.107 In an action for a divorce on this ground against one Nathaniel U., a record of the conviction of Nathan U. is admissible in evidence, upon proof of identity.10 108 I. [Allege marriage as in form No. 615.] III. That since said marriage, the defendant has treated her in a cruel and inhuman manner, and in particular as follows: On the .. day of .... 18.., at the defendant [here state the particular acts of cruelty, specifying date and place for each, and the nature of the act]. [DEMAND OF JUDGMENT.] § 2692. Extreme cruelty, what is. Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage.109 The question is no longer an open one whether mental suffering, as the result of willful ill-treatment, not accompanied with violence to the person, is or may be such as to justify a divorce on the ground of extreme cruelty. The only question is as to the extent or degree of mental suffering which must be borne without relief, or that will justify relief; whether to be a ground for divorce the mental suffering must have affected the body by injuring the health, or be such, at the least, as to seriously endanger the health. It would be difficult to collate from the authorities, or aside from the authorities to enunciate, any welldefined rule that would be applicable in all cases. It is evident that the body is an unreliable indicator of mental suffering. A peculiarly sensitive mind may exist in a body so vigorous as to prevent any material inroad upon the health from mental suffer107 Cal. Civil Code, § 124. 108 Utsler v. Utsler, Wright, 627. 109 Cal. Civil Code, § 94. "Grievous- afflictive; painful; hard to be borne."- Webster. Any unjustifiable conduct upon the part of either of the spouses, which so grievously wounds the feelings of the other, or so utterly destroys the peace of mind of the other, as to seriously impair the health, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty. Barnes v. Barnes, 95 Cal. 171. |
