Funt, Morris F.

English

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Volume 40 Issue 1 Article 13 December 1933 Domestic Relations--Constructive Desertion--Husband's Duty to Provide a Separate home for His Wife Morris F. Funt West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Family Law Commons Recommended Citation Morris F. Funt, Domestic Relations--Constructive Desertion--Husband's Duty to Provide a Separate home for His Wife, 40 W. Va. L. Rev. (1933). Available at: https://researchrepository.wvu.edu/wvlr/vol40/iss1/13 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYDoMESTIc RELATIONS - CONSTRUCTIVE DESERTION - HUS-BAND'S DUTY TO PROVIDE A SEPARATE HOME FOR His WIFE. - Wsought a divorce from H on the grounds of constructive desertion.H filed a cross-bill charging actual desertion. H and W lived inH's parental home although H was financially able to furnish aseparate home. W left because of a "host of petty annoyancesand tyrannies" which she suffered from H's mother. H madeno satisfactory effort at reconciliation. Held: W was entitled toan a mensa decree. H's petition was denied. Hughes v. Hughes.'In an early case, the West Virginia Court of Appeals inter-preted the "wilful desertion" statute as requiring the intentionalcessation of cohabitation without reasonable cause. By this test"reasonable cause" exists only when the offending party's con-duct amounts to legal cruelty sufficient to support a decree amensa or a vineulo. This is the general rule.' West Virginia,however, relaxed this requirement in Horkheimer v. Horkheimer,'where the court granted a decree though there was apparently noground for affirmative relief. The decree was granted solely uponthe wife's right to a separate home if the husband was financially1169 S. E. 403 (W. Va. 1933).'Martin v. Martin, 33 W. Va. 695, 11 S. E. 12 (1890). Accord: Alkire v.Alkire, 33 W. Va. 517, 11 S. E. 11 (1890); Reynolds v. Reynolds, 68 W. Va.15, 69 S. E. 381 (1909)."'Justifiable cause which will excuse a husband or wife from leaving theother, must be such as could be made the foundation of a judicial proceedingfor a divorce a Tnensa. 1 Martin v. Martin, supra n. 2; Dawkins v. Dawkins,72 W. Va. 789, 79 S. E. 822 (1912); Huff v. Huff, 73 W. Va. 330, 80 S. E.846 (1913); Fisher v. Fisher, 81 W. Va. 105, 93 S. E. 1041 (1917); Kittlev. Kittle, 86 W. Va. 46, 102 S. E. 799 (1920); Hamilton v. Hamilton, 87W. Va. 534, 105 S. E. 771 (1921). Although the statute does not specify"wilfulness" as an element of desertion a mensa, the court said in Hall v.Hall, 69 W. Va. 175, 71 S. E. 103 (1911) "Though the statute allows adivorce a mensa et thoro for abandonment or desertion, in general terms, anddoes not in express words require willfulness, it must be assumed that thelegislators, in drafting and enacting it, intended such abandonment and de-sertion as is generally recognized and treated as sufficient ground for alimited divorce."'Pidge v. Pidge, 44 Mass. 257 (1841); Lyster v. Lyster, 111 Mass. 327(1873); Arnaboldi v. Arnaboldi, 101 N. J. Eq. 126, 138 At. 116 (1927);Searcy v. Searcy, 196 Mo. App. 311, 193 S. W. 871 (1917); Towson v.Towson, 126 Va. 640, 102 S. E. 48 (1920).r106 W. Va. 634, 146 S. E. 614 (1929). "The law entitles a wife to ahome over which she alone may preside. When there is no serious obstaclein the way of the husband providing such a home, she is not required to livein the home of his parents under their domination." A denial of this"right" amounts to legal cruelty, and there is compliance with the generalrule. Accord: Roberts v. Roberts, 108 W. Va. 71, 150 S. E. 231 (1929);Davis v. Davis, 108 W. Va. 157, 150 S. E. 523 (1929); Walker v. Walker,109 W. Va. 662, 155 S. E. 903 (1930).1Funt: Domestic Relations--Constructive Desertion--Husband's Duty to ProPublished by The Research Repository @ WVU, 1933RECENT CASE COMMENTSable to provide it. In Beu7tring v. Beuhring, the court suggeststhat the husband must not only provide a separate home, but ahome at a sufficient distance from the home of relatives to protecthis wife from their frequent intrusions. Quaere, must the husbandprovide a new home if the wife finds the neighbors (not relatives)annoying? The instant case does not go as far as the Benlingcase but it aids in fixing in West Virginia a qualification uponthe general rule that the husband may determine the domicil andthe wife must follow him unless the abode endangers her life orhealth." Apparently in West Virginia, the wife may assert herright to a separate home and a refusal by the husband, financiallycompetent to provide such a home, will amount to "justifiablecause" for the wife to leave.8 Or conversely, the husband's re-fusal to provide a separate home is "legal" cruelty.' The criticsof this conclusion allege that this permits the wife to gain a de-cree by leaving home that she could not acquire by remaining."Perhaps the distinction is a real one - that the conduct ac-quiesced in by her husband in the one case is not a real threatupon her life or health, that in the second case her very actiondemonstrates that the threat is real. The result of the instantcase is consonant with a general demand for a re-definition ofcruelty to fit a changed social order.-MORRIS S. FUNT.111 W. Va. 135, 161 S. E. 25 (1931). "While it is the conceded rightof the husband to determine primarily the location of the matrimonialdomicile, that right must be exercised reasonably, and he may not arbitrarilyrequire his wife to live with or in close proxinity to a relative who mistreatsher as did the daughter in this instance."2 "If such a requirement is made,the wife is justified in leaving the husband and may charge him with con-structive desertion."7 Davis v. Davis, Walker v. Walker, both supra n. 5. And the test of dangeris apparently subjective. Watson v. Watson, 112 W. Va. 77, 163 S. E. 768(1932).'Hughes v. Hughes, supra n. 1. Horkheimer v. Horkheimer, supra n. 5.The Horkheimer case apparently rests upon three closely related cases. (1)Hoffhines v. Hoffhines, 146 Md. 350, 126 Ati. 112 (1924). "One of thestrong incentives for marriage is the prospect and expectation by the newlymarried parties of establishing an independent home . . . . This instinctivedesire of home building should be encouraged and fostered, as upon thefoundation of independent and happy homes the stability and prosperity ofa nation largely depends.-" (2) Marshak v. Marshak, 115 Ark. 51, 170 S.W. 567 (1914). (3) Brewer v. Brewer, 79 Neb. 726, 113 N. W. 161 (1907)."The family is the unit of the social organism, and, while the institutionof new families to some extent involves the disintegration of the older house-hold, it is absolutely necessary to continued social existence."' Supra n. 5, 7. But see: State v. Beslin, 19 Idaho 185, 112 Pac. 1053(1911); Coleman v. Coleman, 164 Ky. 709, 176 S. W. 186 (1915); Powellv. Powell, 29 Vt. 148 (1856); Winkler v. Powell, 173 Ala. 46, 55 So. 536(1911).10 (1930) 28 MICH. L. REv. 623.2West Virginia Law Review, Vol. 40, Iss. 1 [1933], Art. 13https://researchrepository.wvu.edu/wvlr/vol40/iss1/13

Domestic Relations--Constructive Desertion--Husband\u27s Duty to Provide a Separate home for His Wife

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Domestic Relations--Constructive Desertion--Husband\u27s Duty to Provide a Separate home for His Wife

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