159 Mass. 281

March 7, 1893 - June 9, 1893

Bristol County

Divorce - Libel by Deserting Party - Former Libel

A libel for divorce for desertion, under the Pub. Sts. c.146, s. 1, cannot be maintained by the deserting party, although the desertion was caused by the misconduct of the other party.

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LIBEL, filed on January 14, 1892, by Harriet F. Padelford, for a divorce from David Padelford, on the ground of desertion.

The libel alleged that the libellant and libellee were married on August 24, 1873, and that they thereafter lived together as husband and wife until January 2, 1886, when, the libellee having for the previous three years cruelly and abusively maltreated the libellant, and endangered her life and health, and put her in fear of physical injury, she deserted the libellee, and since that date has lived entirely apart from him.

The libellee demurred, and also filed an answer in bar alleging that the libellant had previously brought a libel for divorce against the libellee on the ground of extreme cruelty and cruel and abusive treatment during the same period of time as was alleged in the present libel, and that, at a hearing on the merits, that libel was dismissed.

Blodgett, J. sustained the demurrer, and the libellant appealed to this court. The judge also ruled that the decree in the former action was a bar to the present action, and ordered the libel to be dismissed; and the libellant alleged exceptions.

C.A. Reed, for libellant.

W.H. Fox, for libellee.

MORTON, J. It was formerly provided that "a divorce from the bond of matrimony may be decreed in favor of either party in all cases where one of the parties has deserted, or shall hereafter desert, the other, for the term of five years consecutively: provided, that when the libel is filed by the party deserting it shall appear that the desertion was caused by extreme cruelty of the other party, or, in case the libel is filed by the wife, that the desertion was caused by the gross or wanton and cruel neglect to provide suitable maintenance for her by the husband, he being of sufficient ability so to do." St.1857, c. 228, s 2. This statute was re-enacted in Gen.St. c. 107, s 7, as to divorces from the bonds of matrimony. It did not apply, and never did, to divorces from bed and board. St.1857, c. 228, s 2; Gen.St. c. 107, s 7. Prior to 1857 it had been provided that a divorce from the bond of matrimony, in favor of either party, might be decreed when the other had deserted for five years. St.1838, c. 126. This last statute was expressly held not to include a case where the libel was brought by the deserting party, even though the desertion was caused by

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the misconduct of the other party. Pidge v. Pidge, 3 Met. 257 ; Fera v. Fera, 98 Mass. 155 . There can be no doubt that St.1857, c. 228,s 2, was passed in consequence of the decision in Pidge v. Pidge, supra. The statute of 1870, c. 404, which made a material change in the divorce laws, apparently left the provisions of Gen.St. c. 107, s 7, still in force. In this situation, the law, as it stands now, was enacted, providing simply for divorce for "utter desertion continued for three consecutive years next prior to the filing of the libel." Pub.St. c. 146, s 1. We must regard the omission by the legislature from the Public Statutes of the provisions formerly contained in St.1857, c. 228, s 2, and in Gen.St. c. 107, s 7, permitting a libel to be brought in certain cases by the deserting party, as significant, and as manifesting an intention on its part, not only to limit divorces for desertion to cases in which the libellant has actually been deserted by the other party, but to exclude cases in which the libellant was the deserting party, even though such desertion had been caused by the misconduct of the other party. The ruling sustaining the demurrer was therefore correct, and as it is decisive of the case there is no need to consider whether the judgment dismissing the former libel is a bar to this libel.

Order dismissing libel affirmed.

Exceptions overruled.