I agree that the complaint was and is insufficient as a basis for a decree on the ground of willful desertion for failure to allege the time when the desertion took place and that the court erred in overruling the demurrer and motion to strike. By thus agreeing with the majority on this issue, I am not to be understood as subscribing to the rule announced in the case of Crenshaw v. Crenshaw, Mont., 182 P.2d 477. In that case no objection was made to the sufficiency of the pleading as here.
I think, however, that no useful purpose would be subserved in remanding the case for a new trial and to that extent I disagree with the majority.
The evidence does not show willful desertion on the part of defendant and affirmatively shows there was no willful desertion on her part in that plaintiff admitted that he had not established or offered to establish a suitable residence in Helena. Nor did he prove that had he done so she would have refused to move to Helena and there live with him. These are essential elements upon which to base a charge of willful desertion by the wife. Compare Vosburg v. Vosburg, 136 Cal. 195,68 P. 694; Bibb v. Bibb, 39 Cal. App. 406, 179 P. 214; Alves v. Alves, 126 Cal. App. 260, 14 P.2d 578.
The case of Giebler v. Giebler, 69 Mont. 347, 222 P. 436, relied upon by plaintiff is not applicable here. In that case there had been a separation agreement which suspended the *Page 443 duties and obligations of the spouses toward each other and the question there involved was whether the husband could make a bona fide offer of reconciliation without first securing and furnishing a home for himself and his wife. The court held that a good faith offer of reconciliation could be made without first providing a home. In the case before us there had been no breach or suspension of the marital duties and obligations. The parties were, for convenience of the children who were attending school in Butte and because of the uncertain tenure of plaintiff's employment in Helena, living separate and apart by agreement. Plaintiff was sending support money to defendant regularly each month for herself and children. There was involved no element of reconciliation.
The only question here involved is, Can it be said that defendant willfully deserted plaintiff without a showing that she refused to live in a suitable home, provided by him or which he in good faith offered to provide for them, in Helena? I think the evidence here fails to show willful desertion on the part of defendant.
Since it affirmatively appears from the record that plaintiff cannot make out a case of willful desertion on the part of defendant, I think plaintiff's action should be ordered dismissed.