Opinion
No. 33590.
February 27, 1939. Suggestion of Error Overruled March 27, 1939.
1. APPEAL AND ERROR.
The findings of chancellor on an issue of fact will not be disturbed unless against the overwhelming weight of evidence.
2. HUSBAND AND WIFE.
In wife's suit for separate maintenance, chancellor's finding that husband had deserted wife and that his offer to take her back as his wife was not made in good faith were not against overwhelming weight of evidence.
APPEAL from the chancery court of Alcorn county; HON. JAS. A. FINLEY, Chancellor.
W.D. Conn, of Corinth, and W.D. Conn, Jr., of Jackson, for appellant.
Appellee's claim to separate maintenance is based upon the alleged "desertion" of her by her husband. Our first three assignments of error go more or less to the same general proposition that on the record as a whole, and conceding everything shown by appellee's evidence, there was shown no right in her to sustain the proceeding which she instituted against appellant; that she showed no right to be separately maintained by her husband. These three assignments will, therefore, be considered together.
The alleged "desertion" consisted of the act of the husband's returning the wife to her father's home without just excuse or reason, and his unjustifiable refusal thereafter to live with her. In a word, it is not a case of constructive desertion, where the misconduct of the husband has compelled the wife to leave the husband; but a simple refusal by the husband, without justification, to live with his wife.
In an early decision of this court, Fulton v. Fulton, 36 Miss. 525, it was said that as ground for divorce, three things must concur to constitute desertion, namely: "1. A wilful desertion of the complainant by the defendant. 2. That such desertion by the defendant be continued for three years continuously; and 3. That the desertion be without the consent of the complainant."
Amis on Divorce and Separation, sec. 190; 30 C.J., pages 1072-1073; 9 R.C.L., pages 354-355; Broadus v. Broadus, 221 S.W. 804; State v. Weber, 48 Mo. App. 504; Vickers v. Vickers, 45 N.W. 274, 199 P. 76; 14 Cyc. 611; Luper v. Luper, 61 Or. 418, 96 P. 1101; Polley v. Polley, 128 Md. 60, 97 A. 526; Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231; Werpupp v. Werpupp, 108 N.J. Eq. 169, 154 A. 424; Biddle v. Biddle, 104 N.J. Eq. 313, 145 A. 639; Jenny v. Jenny, 178 Cal. 604, 174 P. 652; Decker v. Decker, 279 Ill. 300, 116 N.E. 688; Fulton v. Fulton, 36 Miss. 517.
The husband was making no move to take his wife home, but was resting quietly on his bed. Nothing had been said on the subject of her going since the afternoon before. But upon her insistence that he take her, and after repeated demands that he do so, and after he told her he did not propose to take her until her mind was made up, the appellant changed his clothes and took his wife home. So that the Chancellor's finding is not only against the great preponderance of the evidence, it is against all the evidence on the subject, appellee's as well as the others. But if we are mistaken in this, we know we are not mistaken when we say there is not here a shred of evidence to indicate that she did not go home willingly, or that she was not fully acquiescing in the matter of her going home.
Kenley v. Kenley, 2 How 751; Rylee v. Rylee, 108 So. 161; McLemore v. McLemore, 163 So. 500; Bangert v. Bangert, 232 Ill. App. 517; Reischfield v. Reischfield, 166 N.Y.S. 898, 100 Misc Rep. 561; Strum v. Strum, 80 Misc. Rep. 277, 141 N.Y.S. 61; Silberstein v. Silberstein, 156 App. Div. 689, 141 N.Y.S. 376; People ex rel. Douglass v. Naehr, 30 Hun. 461; 19 C.J. 64; Taylor v. Taylor, 108 Md. 129.
There is another angle from which this case may be viewed that reveals a situation fatal to appellee's cause of action. What we have in mind is what the courts have dubbed, rather facetiously it would seem, the "honors equal" doctrine; that is, the case where both parties are about equally at fault in bringing about a rupture of the marital relation. We take it that the same rule would hold in a suit for separate maintenance.
Ammons v. Ammons, 109 So. 795; Long v. Long, 135 So. 204; Dunn v. Dunn, 125 So. 562.
W.C. Sweat, of Corinth, for appellee.
The bill alleges that the appellant without any cause or excuse stated to her that he was going to carry her to her father's home and not live with her any longer, and that he did carry her to her father's home and there left her; and that about a week and a half afterwards she went back to her husband and tried to get him to take her back and live with her, and that this he refused to do; and we submit that this is a sufficient charge of wilful desertion.
I submit that the testimony shows clearly that the appellant tired of his wife and decided to carry her home and did carry her home and left her there to stay, and that she went back in good faith to get him to take her back and begged him to take her back, and this he flatly refused to do, and this constitutes desertion on his part.
Fulton v. Fulton, 36 Miss. 517.
If we conceded that his wife did go home in the first instance voluntarily, which we do not concede at all, but as a matter of fact if she had gone home at her own request this did not justify him in the least in refusing to take her back, and this did not justify him in staying away from her father's where he had carried her, for ten days without any communication whatever, and it most certainly did not justify him in staying away from her father's for six weeks after she had come back to him and begged him to take her back. What he should have done and what any normal husband who intended to do the right thing would have done, would have been to go to see her and ask her to come back even before she ever returned and to say the least of it, when she did return if he had been wanting to make a go of their married life he would have welcomed her back; but most certainly after she had returned and asked him to take her back and he refused and she still went back to her father's, if he had any intention at all of not completely and finally abandoning his wife he would within this six weeks' time have bethought himself and gone to her and told her that he was wrong in refusing to take her back and asked her to come back to him; but, according to his own admissions not a word did he say to her, nor intimation, either directly, by messenger or by mail did he indicate that he was willing to try it again, but absolutely ignored her from the time that he carried her to her father's for nearly two months, until this bill was filed.
17 Am. Jur., sec. 117, page 212.
The record in this case shows that the appellee went back to her husband and attempted to get him to take her back. It also shows that he refused to take her back; and it is shown by her mother and her uncle that when she came out of this interview with her husband she showed that she had been crying. She, therefore, pleaded with him with tears in her eyes for him to take her back, and he refused. Even if his actions up to that time had not constituted desertion his refusal to take her back, and this is undisputed, constituted desertion on his part.
Hudson v. Hudson, 138 Am. St. Rep. 154; Fulton v. Fulton, 36 Miss. 538.
We insist that the conduct of the appellant in this instance constituted desertion of his wife and that she had a right to file a suit for separate maintenance.
Pfannebecker v. Pfannebecker, 119 Am. St. Rep. 623; Garland v. Garland, 50 Miss. 694; Dewees v. Dewees, 55 Miss. 315.
An offer of reconciliation must be made in good faith, and not merely to lay a foundation for or to defeat an action for divorce. It must be free from improper qualifications and conditions, and must also be conciliatory in form and substance.
19 C.J. 66, sec. 124; Merritt v. Merritt, 76 A.L.R. 1023.
This court has held in many cases that a decree of the Chancellor should not be disturbed on the facts unless it is manifestly wrong.
Herd v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Grace v. Pierce, 127 Miss. 83, 90 So. 590; Scott v. Perry, 140 Miss. 452, 106 So. 12; Seller Motor Co. v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 833; Babcock v. Holloway, 140 Miss. 120, 104 So. 696, 105 So. 739.
The rule is that the chancellor's findings on an issue of fact will not be overturned on appeal unless they are against the overwhelming weight of the evidence.
Austin v. Page, 169 So. 671.
This is a suit by a wife against her husband for separate maintenance upon the alleged ground of desertion on his part. The cause was heard on bill, answer, and proofs, resulting in a decree in the wife's favor, awarding her $17.50 a month support money. From that decree, the husband prosecutes this appeal.
The wife was a Miss Luckett. Her family and the Conn family made their homes on farms about three miles apart in Alcorn County. They were married the 25th of November, 1937, and separated July 17, 1938. The wife alleged in her bill that on the latter date her husband without cause forced her to leave their home and return to that of her parents; that since that time and up to the bringing of her suit, they had lived apart. In his answer, the husband denied the allegations of the bill and offered to take his wife back and resume their marital relations if she were willing.
It is argued on behalf of the husband that the evidence was insufficient to show desertion on his part, and, if mistaken in that contention, the wife should have been denied separate maintenance because the evidence showed that the husband's offer in his answer to resume marital relations was made in good faith. The evidence was conflicting on both of those issues. The chancellor resolved them both in favor of the wife. In other words, that the husband had deserted the wife and his offer in his answer to take her back as his wife was not made in good faith.
In numerous decisions of this court so familiar to the bench and bar of the state that it is unnecessary to set them out, this court has held that the finding of the chancellor on an issue of fact will not be disturbed unless against the overwhelming weight of the evidence. We cannot say that the findings of the chancellor are subject to that criticism. He had the witnesses before him. He saw their appearance and manner on the witness stand. On appeal we have only the written testimony. Sometimes the written word means one thing, and, when spoken in connection with the manner and appearance of the speaker, means the opposite. Putting it differently, the false witness may be able to hide behind the written word, but not the spoken word.
Affirmed.