Morse v. Morse

Where a decree is sought under sub-di vision V of Sec. 5G89 of the Rev, Stat. for “any gross neglect of duty’’, it is not necessary that the cause of divorce should have continued for three years.

In this case it appears by the findings of the court set forth in the journal entry that for a period of about six months the defendant has been guilty of gross and wilful neglect of her marital duties, and that the plaintiff was entitled to a decree of divorce on that ground, unless it is necesary under the statute that the gross neglect of duty should continue for three years, and as the ■ court was of the opinion that the cause ■must exist three years, the petition was dismissed, with costs.

'' Held: That by the insertion of the word “any” in the Rev. Stat., it is evident that the intention of the legislature was to leave the granting of the decree to the sound discretion of the court trying the case, and ■that it is not necessary that the cause of di- .. vorce should have continued for three years. Any other construction would render the statute nugatory and superfluous. It is not necessary that a woman should starve for three years to entitle her to the benefits of the statute. Where the neglect is such ’that it is merely tantamount and equivalent to wilful absence, a sound discretion might ■require the cause to have existed for three years in analogy to the provision of the statute requiring wilfull absence to have con■tinued three years; but where the neglect is ■otherwise, is gross, and is passively cruel, ■ as in a case of starvation or failure to provide clothing, fuel, or the like, it is not necessary that the cause should have existed for three years. This holding is sustained by a majority of the judges in the Western District of the state. The judgment of the •court below is reversed, and the cause is remanded for further proceedings. ”