Opinion
April 2, 1953 —
May 5, 1953.
APPEAL from a judgment of the municipal court of Outagamie county: OSCAR J. SCHMIEGE, Judge. Reversed.
For the appellant there was a brief by Gold McCann, and oral argument by Roland J. Steinle, Jr., all of Milwaukee.
For the respondent there was a brief by Benton, Bosser, Becker Fulton, and oral argument by David L. Fulton and Franklin L. Nehs, all of Appleton.
Plaintiff, Eugene T. Powless, commenced an action for divorce from his wife, Agnes Powless, on the ground that on September 2, 1946, she deserted him. The parties were married on November 20, 1943. For about two years after the marriage they resided at Davenport, Iowa, and then removed to Oneida, Wisconsin, an Indian community, where they resided for a short period of time with plaintiff's sister.
Defendant testified that while they were living at Oneida with the husband's sister the latter told her several times that there was no house big enough for two families, and that her brother had no share in the estate and had no business there; she testified that statements to the same effect were made to her in her husband's presence. This was denied by plaintiff.
In December, 1945, they went to Milwaukee in search of work and there resided with defendant's sister and brother-in-law. Mrs. Powless obtained a job in Milwaukee at which she earned $40 per week. Because of pending strikes the husband was unable to obtain employment in Milwaukee at that time.
In the month of December, 1945, the plaintiff returned to his sister's home in the Oneida Reservation. He testified that when he returned to Oneida he did not ask defendant to accompany him because she had obtained employment in Milwaukee. He visited with his wife at Milwaukee on a number of occasions until Labor Day, 1946. He testified that he had requested a number of times that she return with him to Oneida and that she refused. He did not see her again until he saw her in the courtroom at the trial except on one occasion when she attended his brother's funeral.
Since the parties went to Milwaukee in December, 1945, the plaintiff has contributed nothing to the support of the defendant. He testified that in 1946 he earned less than $500, in 1947 less than $500, in 1949 less than $300, in 1950 $300, and that since 1950 he had not asked his wife to join him at Oneida. He has no property except his earnings and a 1941 Pontiac automobile.
Upon examination by the court plaintiff testified as follows:
" Q. Are you willing at this time to take your wife back if she is willing to come? A. I am afraid we can't get along. We have been apart you might say five years now. I think it will be from bad to worse.
" Q. Would you like to try it again? A. No, it has been too long."
Defendant testified that when plaintiff suggested in December, 1945, that they remove to Milwaukee she told him that she would go "anywhere where we could get our bread and butter;" that while in Milwaukee, where they stayed two weeks, he was unemployed although he had been offered several jobs at a salary of one dollar per hour and that he refused to accept the offers because he did not consider the wages sufficient. She testified that on several occasions when the plaintiff came to Milwaukee she asked him what his plans were, whether he intended to work in Milwaukee and that his only answer was that his sister wanted him to work her farm at Oneida and that on one occasion defendant told him that if he found a place to live she would join him. She denied that she had ever refused the request of her husband to live with him, and testified that she told him that she would go back to him if he would move from the sister's house and provide a place for her and support her.
Judgment of divorce on the ground of desertion was granted the plaintiff on July 9, 1952. Defendant appeals.
A husband has the right to select the place where the family shall reside and if the wife unreasonably refuses to remove with him to the place of his selection her conduct constitutes unlawful desertion. Gray v. Gray, 232 Wis. 400, 287 N.W. 708. The question then is whether the trial court was warranted in finding that the defendant's refusal to remove to Oneida was unreasonable. Accompanying the husband's right to choose the domicile of the family is his duty to support his wife and maintain her in a home in which she need have no fear that she will be dominated by his relatives and in which she may have some hope of remaining as more than a tenant at the sufferance of his relatives. Although the plaintiff testified that his sister's house in Oneida is a rather large one and that it might be rebuilt to accommodate two families, nowhere in the record does it appear that he had ever suggested to his wife that he would ask his sister's consent to provide separate quarters, nowhere does it appear that he had ever told her that he planned to rebuild the house, and nowhere does it appear that his sister had ever indicated to him that she would remodel the house or permit him to do so.
During the time that he lived in Oneida and after he left his wife in Milwaukee plaintiff never earned over $500 per year and in one year, only $300. It is probably not without reason that he failed to testify that he had been able in the past or would be able in the future to provide for her and to make some reasonable effort to earn more money so as to be equipped to take care of her.
Defendant, at the time of the trial, was employed in Milwaukee and apparently earned sufficient to provide for her support. Plaintiff, on the income which he has received, must certainly have had some difficulty in providing food and clothing only for himself.
Plaintiff contends that because the parties are of Indian blood, were raised in an Indian community, were accustomed to the way of living in Oneida, defendant was "fully conversant with the limitations and hardships of life in that society," and there is nothing to suggest that at the time of their marriage he had agreed to leave the community, her refusal to return thereto is unreasonable. It is undoubtedly true that at the time of the marriage no agreement was made that the parties would forever reside in an Indian community. But there was an undertaking on his part to support her, and at least an implied agreement that he would not require her to spend her life in the unpleasant environment which he describes and where by his own admission he has been unable or unwilling to provide adequately for his own maintenance, to say nothing of his failure to have earned enough to provide for the two.
Defendant's refusal to remove to Oneida was not unreasonable.
By the Court. — Judgment reversed.
FRITZ, C. J., and BROADFOOT and CURRIE, JJ., dissent.