McMullin v. McMullin

I dissent. It must be conceded, as held in the prevailing opinion, that the evidence in the record is legally sufficient to sustain the finding of the superior court that the long separation of these parties was by mutual consent, or at least by acquiescence. Neither of the spouses, therefore, could have maintained an action for divorce on the ground of desertion without first revoking his or her consent to the separation by seeking in good faith a reconciliation and restoration of conjugal rights and duties, a refusal of which would constitute desertion by the party so refusing. (Civ. Code, sec. 101)

The plaintiff bases his right of action upon an alleged revocation of his consent to the previous separation made in pursuance of this section of the code, and the trial court has found that he complied with its requirements in good faith. That he made a formal offer to resume conjugal relations is conceded, but the good faith of his offer is open to serious question, and although there may be evidence in the record sufficient to sustain the finding upon this point, it seems to me that any error of the trial judge in excluding evidence tending to invalidate his conclusion that the offer was made in good faith is vital. I think that such error was committed in sustaining the objection to the question asked the plaintiff in cross-examination. An offer in good faith under this provision of the code is an offer made for the purpose and with the genuine desire of resuming the *Page 126 conjugal relation, and not an offer made in the confident belief that it will be rejected, and for the mere purpose of evading a pecuniary obligation, or of laying the foundation for an action for divorce. The question addressed to the plaintiff was in the line of cross-examination adapted to develop his real motives and expectations, and it should have been allowed. I think the order denying a new trial should be reversed.

Rehearing denied.