An action for separate maintenance may be maintained only for a cause for which a divorce may be obtained. Birdzell v. Birdzell, 33 Kan. 433, 6 P. 561, 52 Am. Rep. 539 (1885); 12 Okla. Stat. Ann. § 1284:
"The wife . . . may obtain alimony . . . without a divorce, . . . for any of the causes for which a divorce may be granted. . . ."
The origin of the right granted by the Oklahoma statute may be traced to the General Statutes of Kansas, 1889, paragraph 4762. Lewis v. Lewis, 39 Okla. 407, 135 P. 397; Poloke v. Poloke, 37 Okla. 70, 130 P. 535, Ann. Cas. 1915B, 793. Anderson v. Anderson, 140 Okla. 168, 282 P. 335, 74 A.L.R. 1231, nonresident wife may sue nonresident husband for alimony; Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145, residence for one year not being requisite to the statutory action for separate maintenance; Davis v. Davis, 61 Okla. 275, 161 P. 190; Walker v. Walker, 140 Okla. 1, 282 P. 361; West v. West,114 Okla. 279, 246 P. 599. At the time of the adoption of the statute, the construction placed upon it was that alimony without divorce may be obtained only for a cause for divorce. Birdzell v. Birdzell, supra. Presumptively, the adoption of the statute was in view of the construction placed upon it. That was a reasonable construction, for if the right came by statute, the grant may carry limitation upon exercise of the right, and if the right was not a statutory grant but existed independently under the common law (Bueter v. Bueter [1890]1 S.D. 94, 45 N.W. 208, 8 L.R.A. 562), nevertheless, the state has an interest in maintenance of the institution of marriage and may, as it has by statute, restrict exercise of the right by granting to a defendant causes for denial of the exercise — "Either may make the same defense to such action as . . . to an action for divorce. . . ." (The statute, idem.) However, the power to grant a divorce is a statutory and not a common-law power. 19 C. J. 23, par. 28. See cases cited under note 8.
In Johnson v. Johnson, 57 Kan. 343, 46 P. 700 (1896), it was held error to allow a wife permanent alimony in the form of a quarterly allowance for the support of herself and minor child where it was found she was not entitled to a divorce.
In Anderson v. Anderson, supra (1929) this court held itself bound "by the interpretation placed thereon (the statute, supra) by the court of that state (Kansas) prior to its adoption." In the text of the decision, we rejected the decision in Wohlfort v. Wohlfort, 116 Kan. 154, 225 P. 746, 40 A.L.R. 538, now relied upon by the majority opinion, as well as Osman v. Osman, 86 Kan. 519, 121 P. 327, saying:
". . . inasmuch as this case was not decided until 1924, the rule stated does not apply."
Alimony without divorce is a legal device suitable to a temporary status and one that may end by reconciliation, death, or divorce. The payment may not be awarded in lump sum, but is continually subject to modification. Kusel v. Kusel, 147 Cal. 57,81 P. 295; Doggett v. Doggett, 85 Okla. 90, 203 P. 223. The causes for alimony (or, in its narrower sphere, separate maintenance) are limited to the causes enumerated by statute for divorce. Section 665, O. S. 1931, 12 Okla. Stat. Ann. § 1271, enumerates the applicable causes.
Herein, the plaintiff approached, in pleading, three causes that would justify a divorce decree. They were (1) *Page 360 abandonment for one year, (2) extreme cruelty (sixth cause), and (3) gross neglect of duty. But a petition must state facts constituting a cause of action in ordinary and concise language. Phelps et al. v. Halsell, 11 Okla. 1, 65 P. 340; Weems v. Melton, 47 Okla. 706, 150 P. 720; Liberty National Bank of Weatherford v. Lewis, 172 Okla. 103, 44 P.2d 127. An examination of the petition filed herein discloses its inadequacy.
Abandonment, to be properly pleaded and proved for such a cause, must be abandonment for one year. Assuming desertion was sufficiently pleaded as existing for a time, that in itself is not sufficient; it must continue for the period of time stated and required by statute. That it did not exist from the time pleaded, to wit, the year 1936, is disclosed by the pleading that plaintiff maintained an apartment at defendant's request and at his expense in the year 1939. She testified that she raised no objection when defendant left their abode at the Skirvin Hotel on April 1, 1936, and on August 23, 1937, she wrote defendant indicating her agreement to anything that would make him happy. This agreement contemplated, of course, the continued marital status limited as it was to plaintiff's support. It is stressed by plaintiff's request from defendant for gift of a trip to Mexico City and to Alaska.
Lack of abandonment for one year is evidenced by the pleading that after the spring of 1936, defendant absented himself from plaintiff and their said residence practically all the time andseldom "communicated with plaintiff in any way and ceased to cohabit with the plaintiff. That he did not come to said apartment or in any other manner visit with the plaintiff or in any manner perform his marital duties except to send her an allowance of $225 a month," which was subsequently reduced to $200 per month.
Thus it is evident and in evidence that whatever desertion existed on the part of defendant, it did not develop into abandonment for the period of time required by statute for the reason that the third element of abandonment was not present; that element is nonconsent on the part of the one deserted. Plaintiff was agreeable to her status at the time of commencement of this action for support, provided that support continued. The three elements constituting abandonment are: Cessation of cohabitation, continued for the statutory period of time; (2) intentional on the part of the offending spouse not to resume cohabitation; and (3) nonconsent on the part of the abandoned spouse. 9 R.C.L. 140, p. 354.
The modifying words italicized in the text of plaintiff's pleading convert essential averments of an element of the cause into a mere reproachful complaint. Indubitably there is uncertainty and indefiniteness unconformable to statutory requirements in all pleading. Extreme cruelty as a cause is likewise insufficiently pleaded, for the reason that while the plaintiff alleged that while living at the Skirvin Hotel in the year 1936, defendant applied harsh and unbecoming language in addressing her, both in private and in public, causing her great humiliation and suffering, subsequent allegations of the petition effectively disclose condonement of whatever extreme cruelty was caused by defendant's acts, providing support was continued as it was.
Likewise, gross neglect of duty as a cause is insufficiently pleaded, for nowhere contained in the petition of plaintiff is there specific reliance had upon this ground. The nearest approach to it is a "collect" to be gathered from the whole plea, i.e., allegations that defendant did not cohabit with plaintiff or in any manner perform his marital duties except to support her.
It is apparent that under plea and proof, the plaintiff condoned all neglect of marital duties on the part of her spouse, if any, save and except the duty of a husband to support a wife. *Page 361
Plaintiff's petition in the latter regard alleged that defendant advised plaintiff in the middle of March, 1939, of his intention to discontinue financial support of plaintiff. The averment continues in conclusion that a payment of support money continued down to the time of commencement of this action, but that the subsequent payment was subterfuge for the real purpose of "forestalling the filing of this action." Suffice it to say the payment was made on the 31st day of March, 1939, though the check in payment thereof was refused by plaintiff and protested by defendant when this action was instituted on the 1st day of April, 1939, and the tender thereof served no ulterior purpose as alleged. It may be that the offer did serve the purpose to show that the action was prematurely filed, for since the marital status of the parties, by condonement or otherwise, had reached the point where support money was in fact the only connection or disagreement between the parties, resort should not be had to this special proceeding to secure that which is given irrespective of the motives of donor, who has at least complied with all that the law may require of him.
That the defendant has done all that the law may require of him is evidenced by the fact that, by the majority judgment, he is required, under coercion, to contribute to the support of plaintiff $100 per month, whereas of his own volition, whether by subterfuge or otherwise, he sought to contribute and was contributing, until resort was had to law, the sum of not less than double the amount per month.
It is submitted that legally, arithmetically, and financially, this action and judgment labor in error.