This is a suit for divorce instituted by the husband and based upon the ground of desertion of the wife for a period of more than six months preceding the date of the *Page 596 libel. The wife filed a cross-libel upon three grounds, namely, failure to support, desertion and extreme cruelty. The circuit judge denied both petitions and a decree was entered accordingly. The wife did not appeal. The husband alone appeals. Nine witnesses testified. Their testimony conflicts on important issues. The circuit judge who saw and heard the witnesses was in a better position than we are to determine questions of credibility. The general rule applies that much weight must be accorded to his findings. Upon an examination of the evidence no reason appears for disturbing them.
The circuit judge made detailed findings of fact, for the purpose, doubtless, of making clearer the questions of law which present themselves. He found that the parties, who were married on December 28, 1922, last lived together as husband and wife on September 21, 1925; that on the last mentioned date the wife, with the consent of the husband, left Honolulu for a visit to Japan and returned to Honolulu on January 8, 1926; that on January 8, 1926, she refused to resume cohabitation with her husband and has ever since persisted in that refusal; that this refusal was without just cause and against the will and wish of the husband; that on February 1, 1926, the wife filed a suit for divorce, charging the husband with non-support; and that in June, 1926 (the precise date according to the present agreement of counsel was June 24, 1926), a decree was entered dismissing that libel.
Our statutes provide that "for wilful and utter desertion for the term of six months" a divorce may be had. R.L. 1925, Sec. 2965. There is no doubt that in order to satisfy the statute the desertion must be for a continuous period of six months. A total of six months composed of two or more periods of less than six months, interspersed with other periods of cohabitation, will not suffice. From January 8, 1926, when the wife first left the husband, until *Page 597 February 1, 1926, when she filed her suit for divorce, twenty-five days elapsed. Then followed a period of four months and twenty-four days during which her suit was pending and undetermined. Then from June 24, 1926, when the decree was entered dismissing her suit, until December 14, 1926, when the present libel was filed, there was a period of five months and twenty days. The third period just mentioned continued for less than six months and is not sufficient in itself to meet the requirements of the statute. In order to complete the statutory period of six months either the first period of twenty-five days or the second period must be added. As above stated the first period clearly cannot be added, for the aggregate term would not under those circumstances be continuous. Can the second period be added?
While there are authorities to the contrary the weight of authority seems to me to be that the general rule is that during the pendency of a divorce suit the parties are in the eyes of the law justified in living separate from each other. Their rights are under investigation by the court and neither should be prejudiced by compulsory cohabitation during that time. To require a wife to continue to cohabit with her husband after she brings a suit for divorce alleging that her husband is guilty of some marital offense or delinquency would be to place her in a disadvantageous position in so far as the credibility of her testimony is concerned. The judge conducting the trial may well feel that a wife's story of the husband's adultery or cruelty or nonsupport or desertion is exaggerated or untrue when he finds the libelant continuing to live with the libelee in all respects as his wife. So, also, her cohabitation with him after the institution of the suit may amount to condonation and deprive her of any pre-existing right to a divorce. In so far as the right to live apart is concerned it seems to me to be immaterial *Page 598 whether the suit be brought by the wife or brought by the husband. Like other rules, this one has its limitations. It does not apply, for example, when the suit for divorce is brought in bad faith. Upon reason it is obvious that such a proceeding ought not to render justifiable a separation otherwise not justifiable.
A few authorities may not be out of place. "Where one spouse in good faith brings proceedings for a divorce against the other, though in fact, as it may develop, there is no ground for divorce, it is the general rule that there can be no desertion by the one of the other pending the divorce proceedings as it is presumed that no return would be then permitted; and furthermore the complaining spouse by a return to matrimonial cohabitation might be held to have condoned the ground on which the proceeding for a divorce was based." 9 R.C.L. p. 360, Sec. 147.
"While the rule has not been applied to a willful desertion or a desertion without cause, ordinarily the voluntary separation of either party during the pendency of a divorce suit brought by or against such party is not to be included in computing the statutory period of desertion; but the action for divorce must have been begun in good faith." 19 C.J. p. 80, Sec. 179.
"The parties should live separate during a suit for divorce. While the suit is pending cohabitation would be highly improper, and therefore the time of such separation can form no part of the statutory period. Separation during suit is not wrongful, but is contemplated by the law which requires the husband to support the wife separately while the suit is going on. Cohabitation at such time would be evidence of collusion or condonation, and would, if unexplained, be fatal to the case. The filing of a petition for divorce on the ground of adultery is sufficient notice that plaintiff will refuse a cohabitation, which *Page 599 would at once defeat the action. It is not only the right, but the duty, of the complainant to cease cohabitation. Such separation is not desertion, because the plaintiff, after the commission of the offense, has a right to separate from the other. The defendant does not desert, because such separation is caused by the plaintiff's suit for divorce." 1 Nelson on Divorce 144, 145.
"Of course parties to divorce proceedings should live separate during the pendency of the action, for while the suit is in progress cohabitation would be highly improper. Separation under such circumstances cannot be wrongful, but is contemplated by law, the husband being compelled to support his wife while the suit is taking its course. If separation of this character is not wrongful, a charge of desertion cannot be based upon it, and the period of separation which is proper — that is the legitimate, actual and direct result of the proceeding — cannot be reckoned as any portion of the year which, under our statute, must fully elapse and expire before an action for divorce on the ground of desertion can be commenced." Hurning v. Hurning, 80 Minn. 373, 377, 378.
"Some of the proceedings incident or belonging to divorce cases mark the sense of the law on the subject of cohabitation during the suit. Where the circumstances of the wife demand it, the court is authorized to require the husband, according to his ability, to support the wife separately while the suit is going on, and we can not suppose that this would be so, if the separation were deemed by the law to be wrongful.
"Then it is well settled, that collusion of the parties will be fatal to the suit, and uninterrupted cohabitation would usually be a sign of collusion, when it did not tend to show conjugal forgiveness, which, if shown in time and proper form, would be equally fatal to the case.
"But, apart from considerations of this description, *Page 600 we are of opinion that it was eminently wise and proper for the parties to keep separate during the pendency of the former suit, and that it would have been wholly incompatible with any just conception of the nature of that suit, and an offense against social propriety, if not a sufficient and deserved answer to the application, for the wife to have voluntarily cohabited with her husband after having stated a case to establish its impropriety, and on which she asked the court to set its seal of approbation by a decree." Porritt v. Porritt, 18 Mich. 420, 425, 426.
"The general proposition appears to be indisputable that the separation of one spouse from the other, pending a suit between them for divorce, is justifiable, and is therefore not an obstinate desertion during that period. * * * But in all the cases which state the proposition in general terms, there is an assumption that the case which relieves from the duty of cohabitation, pending it, is one brought in good faith, in order to submit to the consideration of a court a condition of facts which the complainant really believes entitles her to the relief sought. In such a case it is of no significance whether the complainant succeeds or fails in the suit by which she presents her claim. Her separation, pending it, is not obstinate, for the reason that there is a justifiable cause for it, and that it is her right to have a judicial determination of what she believes to be real grievance, unembarrassed by presumptions adverse to her which would necessarily attend upon continued cohabitation with her husband." Weigel v. Weigel, 63 N.J. Eq. 677, 680, 681.
"As the law sanctions the parties living apart during the pendency of a bona fide nullity suit such separation cannot be said to be willful and obstinate although continued during that period. In fact the settled doctrine of the law requires that pending a suit for the dissolution of marriage and equally for nullity the parties should not *Page 601 live together; and their living apart pending such proceedingsbona fide does not constitute desertion within the meaning of the statute." Barbour v. Barbour, 94 N.J. Eq. 7, 8, 9.
Wagner v. Wagner, 39 Minn. 394, is a case, and there are others apparently to the same effect, holding that where the desertion commenced prior to the filing of the first suit for divorce and was in its commencement without just cause the separation of the parties during the pendency of the first suit was not justifiable. I am unable to accept either the reasoning or the conclusion of that case. It seems to me that the reasoning in support of the general rule above stated, that during the pendency of a suit for divorce the husband and the wife are justified in living separate and apart, should and does apply as well to a spouse who prior to the institution of the first suit was living apart from the other without just cause as to one who did not leave the other until the actual filing of the suit. The same considerations above recited apply in favor of the one as in favor of the other.
While there was no express finding to that effect the inference is that the trial judge found that the wife in the case at bar, in instituting the first suit, acted in good faith. No reason appears for this court to hold to the contrary. Regarding, then, the first suit as brought in good faith the wife was during its pendency entitled to live apart from her husband and her absence during that period cannot now be construed as desertion.
In my opinion the decree appealed from, dismissing the libel of the husband, should be affirmed.