A husband, plaintiff in an action for divorce founded on desertion, was not entitled to a divorce by reason of the defendant's statement during cross-examination that when the final separation occurred she intended to "stay away" because she could not get along with the plaintiff. The defendant's statement, viewed in the background of the experience of the parties, did not render applicable the rule that a wife may not defend against a charge of desertion, whatever be her reasons for leaving, if her absenting herself is accompanied by an intent finally to sever the marriage relationship in fact, so as to amount to an extra legal divorcement. The defendant's statement, standing alone, would not be given a significance which was opposed to that to which it was readily susceptible when considered in the background of the previous experiences of the parties and the circumstances under which the conviction to "stay away" formed in the defendant's mind. Moreover, the language used by the defendant, taken literally, did not import a determination on the defendant's part to shake off her obligation as a wife without regard to any existing justification for such action. While to "stay away" might be absence, absence alone, however long continued, is not desertion. A husband is not entitled to a divorce for desertion if he consents to a separation, or if he produces it so that he is in practical effect the absenting party.
CORNELL, J.
It is found that, not only did the plaintiff put the defendant out of his home, but that had he not done so, his treatment of her would have amply justified her in leaving him for the protection of her health and physical and mental well-being. Campbell vs. Campbell, 110 Conn. 277, 279.
The single element upon which the plaintiff predicates a right to a divorce in view of the conclusions stated supra, upon the ground of desertion, is the defendant's statement on cross-examination to the effect that when the final separation occurred she intended to stay away because she could not get along with him (i. e. plaintiff). To sanction this contention the following excerpt from the opinion in Campbell vs. Campbell, supra, 280, is invoked: ".... nor can she defend against a charge of desertion, whatever be her reasons for leaving, if her absenting herself be accompanied by an intent finally to sever the marriage relationship in fact, so as to amount to an extra legal divorcement."
The statement in question, made by defendant, cannot be given a significance standing alone, which is opposed to that of which it is readily susceptible when considered in the background of the previous experiences of the parties and the circumstances under which such conviction so formed in her mind eventuated. Considered from the standpoint last adverted to, it is concluded that the defendant had finally come to a state of mind which led her to decide to "stay away" unless and until the conditions which menaced her ceased to obtain, in contradistinction to her previous willingness to return when she had been forced to leave, upon plaintiff's supplication and promises to treat her properly. In any event, it can hardly be said that the language taken literally imported a determination on defendant's part to shake off her obligation as a wife without regard to any existing justification for such action. To "stay away" may be absence, but absence alone, however long continued, is not desertion. Campbell vs. Campbell, supra, 279. Nor is a husband entitled to a divorce for desertion if he consents to a separation ( Spargo vs. Spargo, 107 Conn. 406, 407); a fortiori if he produces it so that he, himself, is in practical effect the absenting party.