WICKLIFF. V. WICKLIFF. 411 WICKLIFF V. WICKLIFF. . 4-3959
Opinion delivered October 14, 1935. 1. DIVORCE—TIME TO SUE.—Where a divorce suit was brought under Acts 1931, No. 71, before plaintiff had been a resident for two months, but after he had resided in the State two months, he filed an amendment setting up an entirely separite cause of divorce, and defendant answered the complaint, it was no defense that the suit originally was prematurely brought. 2. DIvoRCE—DESERTION.—Desertion is ordinarily committed by the spouse who leaves the home where the marital relation has existed; but where a spouse intentionally brings the cohabitation to an end by misconduct which renders the contihuance of the marital relation so unbearable that the other leaves the family home, the former, and not the latter, is the deserter: 3. DIVORCE—DERERTION.—Where a wife committed acts of misconduct constituting a cause for divorce and thereby compelled the
412 WICKLIFF v. WICKLIFF. [191 husband, -to .leaVe her, the husband's action for divorce; brought more than 5 years after commission of such acts, held notbarred hy the . 5:year .limitation, since . the cause ,. for, divorce was continuing. Appeal. frOm Garland Chancery Court ; S. TV. Oar-ratt, Chancellor ; affirmed.. • Suit .by Glen Wickliff against Gertrude Wickliff. Decree for plaintiff, from which defendant appealed. • .' C. Floyd Miff, Jr., for appellant. • A. D. Shelton.,:for appellee.. - • SMITH, J. Appellee was ... granted a divorce from appellant, who insists on tbis appeal 'therefrom that- it should be . reversed:' (a) because appellee had not resided in the' State two months before filing sUit, and (b) because 'the . allegation of: desertion as ground -for . a divorce is not . SuStained by the testimony. . • The depositions : taken in the case shoiv that apPellee became a resident of the 'State on . December 21, 1933; and filed. suit for-divorce on February 19, 1934. He had not therefore been- a .resident .of this -State for two mOnths before-filing suit, as required by act 71 of the 1931 session of the General Assembly.. Acts 1931, page 201. • The complaint alleges numerous indignities and val.% ions acts of misconduct which no self-respecting man would en dB rp, On March 7, 1934, aPpellant filed a motion for an allowance of suit money and . maintenance. On April 10, 1934, she filed an answer . denying all the allegations of the complaint, and renewed her motion for an allowance for' support and maintenance.. • • On June 7; 1934, appellee filed an amendment to his complaint,in whih he charged deSertion alleged to have been committed as follows . . . "That for a long period of time prfor to the first day of September, 1926,. when he left the -defendant, the de-. fendant Cursed,. abused arid threatened him, and for days at a time remained_in a state of intoxication; that she remained away from home at nights, and made trips into the State- of_ Florida and elsewhere for the purpose of being with other : men ; that, by reason of the conduct of the defendant aforesaid, be was driven from his home ;
XYZ. K.] WICKLIFTI V. WICKLIFV. 413 that under the circumstandes'it was unsafe, unwise and highly. improper. and impossible • to remain With the - defendant, and that the defendant,: -by -reason of her con duct, is guilty of willful• desertion without reasonable cause-for the space • of -more- • than 'one- year. • . ' On • the lolloWing day. appellant •: fiIed :an-answer ' to the amended complaint,' in whicli • she' denied all, the • alle; gations of that pleading:. - • • !!.• • • •., • ' • • • It 'appears, • a s has been -Said, that the suit 'was' prematurely broUght. •- But the amendment to. the Complaint was-filed- at a. time when the plaintiff had ' resided in this State for a sUfficient length of- time . to sue for a divorce'. This amendment alleged -a new: cause • of action; . and, as was said in the case of' 'Wood v.- Wood, 59 Ark. -.441,•27 S. W:. 641, the filing' 'of awaniendment tg etting 'up an en:: tirely separate and distinct catiSe• of 'divorce, and- the answer . of • the def endant thereto,' 'were . equivalent' te, and not distinguishable frOm, the bringing of' a : new suit, and the defendant; by answering; - entered 'he'r 'APpeatanCe; and waived, summons; and the - same • result Was- reached .wonid- have -been.accomplished• had •a new • and . drigi-n-al complaint been' filed with service of process -thereon; • - AS it appears,' from .:the face of the pleadings'. and from the • depOsitions as• well, that -more than- five- years had elapsed , since - the separation 'of - the parties,-• no : divorce Can- be granted- beeause of , the• indignities and misconduct as stieh which induced-the.separatiom unless 'this misconduct is tantamount to desertion: • • • The- statute requires -proof that •the- cause- of divorce occurred- or- existed-Within five years next before the cOnaL mencement of: the-suit. SeOtion 3505, 'Crawf ord .86'.1■Ioses' Digest: But :desertion is •a continuing ea-Use of ,divorCe, and. `.` exists; ' 'the:meaning of the statute, as king as the -desertion : 'continues., -Mitlleobairtd , Mullanb and; 137 Ark: 505, 208 'S: . W.- 801-. • . • . • - Desertion is -ordinarily committed -by 'the' spouSe whO leaves . the home where the : marital ' relation . has -existed: But this is not alwaysArue, nor . 18 it necessarilY so. § 64, vol. 1, Nelson . on Divorce-and Separation, p. 104, it is said: •" The , general:rule is* that 'Where one party is guilty of a cause for divorce the injured party is -justi-:.
414 WICKLIFF V. WICKLIFF. [191 fied in leaving the home, and after such separation has continued for the statutory period the, injured party may obtain a divorce for desertion. If the conduct of the guilty party did not constitute,a cause for divorce, neither party is entitled to a decree. The injured party was absent without justifiable cause, while the guilty party is precluded from obtaining a divorce for a separation caused by his own misconduct." In 19 C. J., chapter Divorce, §§ 116-117, p. 61, it is said : " The spouse who by his or her act intentionally brings the cohabitation to an end is guilty of desertion. Hence where a Spouse intentionally brings the cohabitation to an end by misconduct which renders the continuance of the marital relations so unbearable that the other leaves the family home, the former, and not the latter, is the deserter." Among the numerous cases cited in the note to the text just quoted is our own case. of Rigsby v. Rigsby, 82 Ark. 278, 101 S. W. 727. In that case the husband's mistreatment of his minor stepdaughter caused his wife, .the child's mother, to leave his. home. Mr. Justice RIDDICK, speaking for the court, there said : "As her departure was caused by his unreasonable• conduct, and as he has never expressed any regret or invited or tried in any way to induce his wife to return, the courts, after the expiration of a reasonable time, are justified in treating his conduct as in law an abandonment of her." See also 1 Bishop, Marriage and Divorce, § 1710. So here while the five-year statute, above ref erted to, bars the action based upon the indignities as such, because the suit was not brought for more than five years after their commission, yet they were such acts as constituted a cause for divorce and rendered the continuance of the marital relation so unbearable that the husband was compelled to leave the. family home, in which case the wife, and not himself, was the deserter. The court was therefore justified in finding that the wife was the deserter, and, as this is a continuing cause of divorce, it was not barred by the five-year statute. The decree of the court awarding a divorce is therefore affirmed.
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