ROBERSON VS. ROBERSON (DIVORCE)

Key holdings

Practitioner summary

Plaintiff husband appealed from a judgment for the defaulted, non-appearing defendant wife in his desertion divorce action (wilful desertion for one year, Rev. Laws 5838) and from denial of new trial. The parties married in Martin County, North Carolina; after five months in Raleigh the plaintiff took brief railroad work at Hemlet, the defendant returned to her parents, and the plaintiff spent about a year in New York before arriving in Nevada in late December 1914. His 1915 Washoe County annulment suit was decided for the wife by court and jury. His November 29, 1915 letter asked her to come as his wife while declaring his dislike, his inability to forgive, her ruination of his life and prospects, the unavailability of assistance from his relatives, and prospective farm-labor poverty; his February 3, 1916 letter accused her and her lawyer of trying to put up a job on him and redirected her to the earlier letters. Held: although the husband, bearing the support burden, ordinarily selects the family domicile, and a wife's refusal without good and sufficient reason to join him at a domicile established in good faith amounts to desertion (9 R.C.L. 365; 1 Nelson, Div. & Sep. sec. 68; 14 Cyc. 613), a spouse who deserted in the first instance must seek reconciliation in good faith, with offers free from improper qualifications and conditions and framed in terms likely to be accepted (9 R.C.L. 373; McClurg's Appeal, 66 Pa. 373; Fishli v. Fishli; Fulton v. Fulton, 36 Miss. 528; Woolard v. Woolard, 18 App. D.C. 326; Heaton v. Heaton; 14 Cyc. 619). The trial judge could conclude the invitation was not extended in good faith but to pave the way for the divorce suit; the wife's non-acceptance therefore was not statutory desertion. Judgment and order affirmed.

In plain language

A husband sued his wife in Washoe County for divorce on the ground of desertion. The couple had married in Martin County, North Carolina, lived briefly in Raleigh, and then the husband left - first to New York for about a year, then to Nevada in late December 1914 - admitting at trial that he separated because he did not feel like he wanted to live with her. In 1915 he sued unsuccessfully in Washoe County to annul the marriage. He then wrote his wife a letter dated November 29, 1915 asking her to come to Nevada as his wife, but the letter told her that he disliked her more than ever, could never forgive her, that she had completely ruined his life and prospects, that she could expect no assistance from his relatives, and that she would have to live as he lived and suffer whatever hardships he went through. She replied with letters full of expressions of love and pleas for genuine reconciliation, but did not come. The wife never appeared in the divorce case, yet the trial court entered judgment against the husband, and he appealed. The Nevada Supreme Court affirmed. While a husband ordinarily may choose the family home and a wife's unjustified refusal to join him can be desertion, this husband was himself the first deserter, and a deserting spouse's reconciliation offer counts only if made in good faith. His frankly brutal letters - reminding her of his contempt while nominally inviting her - were, in spirit, a warning that he did not want her to come, evidently written to pave the way for the divorce suit that followed. Her failure to accept such an offer was not desertion.