This case, in my opinion, reflects an unfortunate situation. The paramount interest of the Territory in the preservation of the marital status has been flagrantly disregarded. A divorce may only be granted where a statutory ground therefor has been made out by clear and convincing proof. The trial judge was apparently motivated *Page 56 by the philosophy that as long as a reconciliation of the parties could not be effected they might just as well be divorced. And this court, embarrassed by the rule in respect to appeals from circuit judges in chambers, has affirmed the decree of the circuit judge, adopting for its purpose only such of the evidence as appears to give its opinion support.
The evidence at best is meager and unsatisfactory. Outside of the parties themselves, there were two witnesses called, both by the appellee, one his brother Charles's wife, the other the maid in the hospital, the substance of the respective evidence of whom is referred to in the majority opinion. The evidence of the appellee is exceedingly brief. But, although he testified that during the short two-months period within which they lived together prior to her departure in October following their wedding, his wife left him three times and admitted that she had asked him to provide a separate home where they could be alone, by themselves, away from his family, he absolutely failed to show that her disaffection was without cause. He gave no explanation of why she had left him upon the three occasions prior to October, 1939, and, according to him, the cause which led her to leave him in October was innocuous and occasioned by an incident with which she had no concern.
The evidence of the wife is equally brief but apparently from other causes. Her failure to understand the simplest questions propounded to her, her responses thereto, and her manner of testifying, showed her to be timid and lacking in ordinary understanding and powers of expression. On cross-examination by opposing counsel, she protested that this outburst of her mother-in-law which precipitated her return to her own parents was not the only reason for her leaving but that there were other reasons. She testified "They were always making complaints *Page 57 about me living there and telling things about me. * * * his family, his brothers and sisters, said things that — * * * His brothers and sisters said things * * * she [the mother-in-law] said things that hurts my feelings a lot; * * * she said other things too." This admittedly is not particularly satisfactory. But she was undoubtedly attempting to convey the thought that the October incident was not the only occasion when her then condition was made the subject of vilification and abuse by members of her husband's family.
As I view the evidence, it is the simple case of the victim of illicit relations taken after marriage to the home of her husband, which she shared in common with other members of his family, and there left to shift for herself and to bear as best she could the family's implications and insults which her condition excited. She was then approximately nineteen years of age. Her husband's home was apparently a family rendezvous. If things were going along so well with these people, is it not passing strange that the existing amicable relations were so abruptly terminated by a wife whose desire was not to suspend cohabitation but to continue cohabiting with her husband elsewhere than in the family home?
As I read the authorities, while the prerogative reposes exclusively in the husband to select the marital domicile, this power must be reasonably and not arbitrarily exercised1 and such selection must be made with due regard for the welfare, comfort and happiness of the wife.2 In other words, the marital domicile selected must be a suitable one, measured by all the surrounding facts and circumstances *Page 58 of the particular case.3 The refusal of the wife to live in the marital domicile provided by the husband does not constitute statutory desertion, where the domicile selected is not a suitable one. Whether or not the marital domicile selected is a suitable one is influenced by many considerations, one of which may be the presence in the household of the relatives of either of the spouses. It is a matter of common knowledge that the presence of "in-laws" in the marital domicile is a prolific source of grief. The wife has the right to expect to be provided with a home in which only the parties to the marital relations reside and over which she is the mistress. There are many conceivable reasons, cogent in themselves, for parents being included in the family menage; similarly, brothers or sisters or their children. In the instant case, however, it does not appear that the husband's relatives were being supported by him or that any reason existed for their presence or his living with them, except for the convenience of the parties involved. But if the husband insists that his wife live with him in a marital domicile in which other members of his family reside, the latter must so conduct themselves toward the wife that her welfare, comfort and happiness are not unduly disturbed. And where it appears that as a proximate result of their presence the welfare, comfort and happiness of the wife, without fault on her part, are unreasonably disturbed, thereby rendering the home unsuitable, the wife may, without being guilty of statutory desertion, suspend cohabitation and impose as a condition to its renewal the removal of such relatives from the marital domicile or the establishment of a marital domicile elsewhere, where the parties may live by themselves.3 *Page 59
I do not consider the case of Ewing v. Ewing authoritative, the rule therein enunciated being influenced by the Maryland statute.
Moreover, there is evidence to which the majority opinion does not refer, which in my opinion is decisive of the merits and makes it obligatory that the decree be reversed; that is the undisputed evidence of the wife, admitted by the husband, that after their separation in October, 1939, she repeatedly solicited resumption of cohabitation. And it is upon this evidence that appellant assigned as error the failure of the appellee, libelant below, to show that she had left him with the intention never to return. In my opinion the assignment is well taken.
To constitute statutory desertion it is not enough that it appears that the wife lives separate and apart from the husband for the required period. In the absence of evidence to the contrary, the law presumes that such separation is with the consent of the husband. In order to constitute statutory desertion, it must further appear that the wife deserted the husband without just cause, with the intention not to return nor to resume cohabitation.4 The statute requires that the desertion be "utter" and "wilful."5 The plain meanings and implications ascribed to the respective words, "utter" and "wilful," require that the desertion be voluntary and without justification, with the design and purpose to terminate cohabitation and never to return.6 Further, it is undisputed that not alone *Page 60 did the wife repeatedly solicit of the husband the renewal of cohabitation but her last entreaty to live together in a home of their own, to accomplish which she had secured a house for the modest monthly rental of ten dollars, was under advisement by the husband when he filed his libel for divorce. Upon this last occasion he told her he would let her know on the following Monday. His only answer was the filing of the libel.
It was incumbent upon the appellee to show that the desertion was "utter" and "wilful." In this he absolutely failed. Up to the time the libel was filed the wife had never unequivocably refused to return to him and resume cohabitation in his own home. On the contrary, negotiations which had for their object the resumption of cohabitation were pending at the time that the libel was filed. In divorce proceedings strict proof is required of the statutory ingredients of the offense charged. In a case of statutory desertion the "renunciation of him [the husband] must be fully and clearly shown."7
The decree appealed from should be reversed and the libel dismissed. This disposition of the case would carry with it the retaliatory cross libel.
1 Neville v. Neville, 220 Ala. 57, 124 So. 107;Spafford v. Spafford, 199 Ala. 300, 74 So. 354-356; Brewer v. Brewer, 79 Neb. 726, 113 N.W. 161; Hall v. Hall, 69 W. Va. 175, 71 S.E. 103.
2 Thomsen v. Thomsen, 118 Ore. 614, 247 P. 808; Rood v. Rood, 117 Pa. Super. 291, 178 A. 173, 174.
3 Loughney v. Loughney, 111 Pa. Super. 214, 169 A. 460;Damm v. Damm, 82 Mont. 239, 266 P. 410.
3 Thomsen v. Thomsen, 128 Ore. 622, 275 P. 673, 675;Rood v. Rood, cited supra note 2; Horkheimer v.Horkheimer, 106 W. Va. 634, 146 S.E. 614; Hughes v. Hughes,113 W. Va. 698, 169 S.E. 403; Marshak v. Marshak,115 Ark. 51, 170 S.W. 567; Field v. Field, 139 N.Y.S. 673.
4 Hall v. Hall, supra; Mikolojczak v. Mikolojczak,283 S.W. 328 (Tex. Civ. App., 1926).
5 "For wilful and utter desertion for the term of six months." R.L.H. 1935, § 4460, par. 2.
6 Hanover v. Hanover, 34 Ohio App. 483, 171 N.E. 350;Billion v. Billion, 137 Ore. 622, 1 P.2d 1108, 1111.
7 Horkheimer v. Horkheimer, supra; See also Reynolds v.Reynolds, 68 W. Va. 15, 69 S.E. 381-383. *Page 61