Rylee v. Rylee 142 Miss. 832, 108 So. 161

Cook, J.,

delivered the opinion of the court.

On the 2d day of October, 1917, the appellant, W. J. Rylee, filed his bill for divorce against his wife, the appellee, alleging as a ground for; divorce, willful, obstinate, and continuous desertion for a period of more than two years preceding the filing of the bill. To this bill the appellee filed her answer, denying the grounds for divorce alleged in the bill, and averring that her separation from the appellant was due solely and alone to the ill treatment of herself and children by the appellant, and misconduct on his part, persisted in to such an extent, and for such a length of time, as to render it impossible for her to live with him. She made this answer a cross-bill, and prayed for temporary and permanent alimony, and for the custody of their minor children, but did not ask for a divorce. On the trial of these issues the appellant’s bill was dismissed, and prayer of the appellee’s cross-bill was granted.

On February 22, 1922, the appellant filed a second bill, praying for a divorce from appellee on the ground of willful, continued, and obstinate desertion for a period of more than two years next preceding the filing of this bill; the averments of the bill being practically the same as those of the first one, except as to the period of the time covered by the alleged desertion. The appellee filed her answer denying the allegations of the bill of complainant, and averring that her separation from the appellant was caused solely by his misconduct and his ill treatment of her. She also set forth in her answer the former proceedings as an adjudication, that her separation from the appellant had not been voluntary, willful, *838obstinate and continuous for moré than two years before tbe institution of said suit, and that said adjudication is, and remains, in full force and effect, and is conclusive of the rights of the appellant in respect to all matters and things alleged in the bill in the present case. In a cross-bill she also prayed for temporary and permanent alimony.

The appellee also filed a special plea of res adjudicata, alleging’ that the proceedings in the first suit were an adjudication in bar of the relief sought in the present bill, and that said adjudication was' still in full force and effect, and was conclusive of the rights of the' appellant in respect to all matters and things alleged in the second bill of complaint.

Appellant set this plea of res adjudicata down for hearing on its sufficiency in law, and the court held that the decree in the first suit was a bar to the present suit, and likewise held that it was a bar to any future bill for divorce that the appellant might, or could, bring on the ground of desertion.

Thereupon the appellant filed a motion to be permitted to amend his bill so as to charge that, since the 8th day of June, 1918, the date of the decree in the first suit, he had been leading’ a correct and proper life, and had been at all times since that date ready, willing, and able to support and maintain the defendant and their minor children; that he had in good faith made to the defendant repeated offers of reconciliation, assuring her that he was then, and had been for a long time prior thereto, living a proper, just, and upright life, and that he was willing, able and eager to support and maintain her and their minor children, and care for them properly, but that the defendant had refused all his offers of reconciliation, and informed him that she never expected to live with him, regardless of the kind of life he might live, and that, during all this time, which was more than two years before the bringing of the suit, the defendant had willfully, continuously, and obstinately refused to *839return and live with the complainant as his wife. The court below held that this proposed amendment was insufficient to state a cause of action, and refused to permit the amendment, and entered a final decree awarding the defendant alimony, and dismissing the bill of complaint.

The averments of the bill of complaint in the first suit are practically identical with those of the original bill in the second suit. The grounds for divorce alleged in the two suits are the same, and, since no change of conditions is alleged, the adjudication in the first suit that the defendant was not in default at the time of the original separation, and that she was entitled to separate maintenance, is conclusive of the cause of action alleged in the second suit, and the court committed no error in sustaining the plea of res adjudicata-.

The next assignment of error urged by counsel is based upon the refusal of the court below to permit the amendment to the original bill, as hereinbefore set out, by which the complainant sought to charge that, since the final determination of the first suit, he had made repeated bona-fide offers of reconciliation, all of which had been refused by the defendant.

In the early case of Kenley v. Kenley. 2 How. (Miss.) 751, the court said that, while mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention or even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty which will justify a decree for separate maintenance to the wife, yet in the case where the wife had a separate provision decreed to her, upon just grounds of cruelty, “it would be discontinued if the husband should bona fide offer to cohabit with her and undertake to treat her kindly for the future. ’ ’ In that case, the proof showed that, after a decree of separate maintenance had been granted, the husband repeatedly invited his wife to return to him, and promised her kind and affectionate treatment, which she refused, and, in *840discussing the law and facts there involved, the court continued, in the following language:

“It is a just conclusion that from the law and facts here stated that, had there been a separate maintenance decree in favor of the appellee in this case, upon just grounds of cruel treatment, it would be discontinued upon the evidence here adduced, for the reason that in such cases courts of. equity will afford the wife no aid whatever to continue her separation from her husband, as it is deemed subversive of the true policy of the matrimonial law, and destructive of the best interests of society. ’ ’

In the case of Fulton v. Fulton, 36 Miss. 517, the court said: “Where parties have separated, for any cause, if one of them comes back and offers to renew the matrimonial relations, an end, in a legal point of view, would be put to the separation; as, in all cases, the legal desertion ends with the intent to desert. Bishop on Mar. & Div. section 513. But the offer to return, to have the effect of putting an end to the desertion, ‘must be made, in good faith, free from improper qualifications or conditions, and really intended to be carried out in its spirit, if accepted.’ Id. If the offer to return, on the part of the appellee, was made in good faith, and the appellant, as it is alleged, refused to receive her, his refusal would amount to a desertion on his part, from the time of such refusal, and therefore effectually bar his right to relief.”

In the ease at bar the proposed amendment to the bill alleged that, subsequent to the rendition of the decree in the first suit, the appellant in good faith requested the appellee to return to him, and promised her kind and affectionate treatment, and that she refused all his offers of reconciliation. The good faith of the appellant’s offers can only be determined upon a hearing, but in determining the sufficiency of the proposed amendment it must be accepted that the appellant was honest in his intention to remedy his fault, and that Ms offers of reconciliation and request to return were made in good *841faith, with honest intention to abide thereby, and that the defendant deliberately refused these offers. It is the policy of the law, and is deemed to the best interests of society, to encourage reconciliations and resumption of the marital relations between estranged spouses, and, where one of the contracting parties abandons the other, although the original abandonment may have been justified by reason of the fault of the other, and there may have been as adjudication of that fact, when the offending party repents of the error, and in good faith seeks a reconciliation, and requests that the marital relation be resumed, and this offer and request is deliberately refused, this refusal amounts to a desertion from that time, and, if persisted in for the statutory period thereafter, will entitle the one seeking the reconciliation to a divorce. Appleton v. Appleton, 166 P. 61, 97 Wash. 199, and authorities there cited.

We think the amendment should have been allowed, and the cause heard upon its merits, and, therefore, the decree of the court below will be reversed and the cause remanded.

Reversed and remOAided.

McGowen, J.

I dissent from the view of my brethren in this case, believing that the plea of res adjwdicata would be good as to the bill amended as proposed, and that the learned chancellor in the court below properly held that the decree denying the divorce first sought to be obtained by the complainant on the ground that the defendant had been guilty of willful, continued, and obstinate desertion for the space of more than two years was a good defense to the second suit on the same ground for divorce; and the court correctly held, in my opinion, that by that decree the living apart of the wife from the husband had the sanction of the law, was justifiable in law; and that the proposed amendment to the second bill for divorce on the same ground of desertion was properly rejected; that the defendant wife was then living apart *842from her husband by the sanction of the solemn decree of the chancery court.

I believe that res adjudicaba—conclusiveness of a judgment in divorce eases—is to be enforced under the well known principles of law as in any. other judgment, and I do not believe it is safe to say that the words or actions of a husband, imputing honesty thereto, still anxious to be rid of the marital tie, anxious to be rid- of the aíimony and burden placed on him by the decree of the court, can set at naught the former decree of the court to the effect that the offended spouse had a. right to leave his bed and board.

For instance, suppose in this case Mr. Eylee had shot his wife, and had seriously wounded her, and he had, in the first instance, filed his bill on the ground of desertion, and she had interposed her answer setting up that fact showing her right to a divorce, but, on account of religious scruples or other commendable motives, she did not desire to have a divorce, nor have her future life besmirched with whatever stigma that might be attached to being a divorced person; that she did not ask for a divorce in the cross-bill, but simply resisted his obtaining a divorce from her, and the court had decreed that under the state of facts the complainant was not entitled to a divorce. Then the husband, with the powerful incentives to be rid of his wife, and to be rid of the burden of supporting her, upon his knees, begs her to return. Can any court say when this testimony is reduced to writing that it is not in good faith? And yet would it not be shocking to say that, having been shot down by a brutal husband, she must suffer the ignominy and disgrace of having a decree go against her because she refused to forgive under such circumstances?

Take another case. Suppose a husband, with witnesses, should find his wife engaged in an act of infidelity to him, and he thereafter refused to consort with her, and, after a period of two years, she files a bill for divorce, alleging the statutory ground of desertion; he files his *843answer setting up her infidelity as his reason for leaving her, and. sustains the allegations of his answer, and the court so decrees. Can this offending wife go to him and say:

“I am good now, and I will be good in the future; you must take me back, or in two years from now the court will grant me a divorce?”

The effect of the holding of my brethren, in my opinion, is that the spouse who left bed and board for sufficient reasons could finally by continued institutions of divorce proceedings be nagged and forced into consenting to a divorce by nonresistance.

I do not think the authorities cited in the main opinion should control us in this important matter, because they are not directly in point, and do not undertake to settle the questions here involved. The purpose of res adjudicata is to set at rest litigation, and surely it is to the interest of society as well as the purpose of the law to put an end to litigation. Under the main opinion the end of the litigation is in the mind and actions of the original, offending party rather than in the solemn decree of the court.

I do not believe that there can be willful, continued and obstinate abandonment where one lives apart from the other spouse under the sanction of a court decree. This view is sustained in the case of Weld v. Weld, 7 N. W. 267, 27 Minn. 330, wherein that court said:

“Desertion imports a willful abandonment by )one party of the other, and involves a violation of marital duty and obligation on the part of the one guilty of desertion, and there is not such violation where a wife is living apart from her husband under sanction of a court decree.”

An obstinate desertion cannot be predicated upon the act of a person whose action is sanctioned by the decree of a court of competent jurisdiction. The general rule is announced in 9 Ruling Case Law, p. 459, section 270, as follows:

*844“Judgments and decrees in divorce proceedings are within the general rule applicable to a judgment or decree that, when it is sought to be made available in subsequent proceedings between the same parties, it is conclusive and binding on them in regard to all matters shown to have been put in issue or to have been necessarily involved in the former suit and actually tried and determined in it. . . . As between the parties to the proceedings, a valid judgment or decree is conclusive of all charges set forth and facts found or which might have been found, and of defenses raised at the trial.”