Swain v. Swain
Swain v. Swain
Opinion of the Court
This was an action instituted by plaintilf to obtain a decree of divorce from the defendant, upon the ground that the latter had failed and neglected to provide her and their minor children with suitable support. Personal service of summons and complaint was had in Spokane county upon the defendant, who defaulted. Thereupon the prosecuting attorney appeared for the state and resisted the action. From a judgment of dismissal, this appeal is taken.
The evidence showed that, for some months prior to leaving appellant, the respondent had failed to support her or the children; that one morning before they were up, he had departed from his home, and had remained continuously absent ever since, a period of over one year, excepting on two occasions when he called at the house, remaining but a few minutes each time. During his absence he furnished appellant nothing for the support of herself or children, although able to do so; that before leaving them he had incurred indebtedness to the extent iof several hundred dollars, which he
We cannot see appellant’s “manner upon the witness stand,” but a reading of her testimony convinces us of no indifference other than might naturally be expected as a result of the humiliation and neglect to which she had been subjected. It does not appear that appellant knew of respondent’s intention to leave her and the family, and her counsel pertinently suggest that her failure to object to his leaving at the time is not extraordinary in view of the fact that she did not know he was going, and that he left while she and' the family were asleep. The fact that this woman, who with her family had been abandoned, and left to support themselves or to be the objects of the charity of friends, and to pay the debts which her husband had made and left unsettled, appeared' upon the witness stand indifferent to his again living with, or maintaining her, can hardly be characterized as an unusual occurrence
“Divorces may be granted by the superior court on application of the party injured, for the following causes: — • (4) Abandonment for one year. . . . (6) the neglect or refusal of the husband to make suitable provisions for his family.” Bal. Code, § 5716 (P. C. § 4630).
In this case there was an absolute abandonment for over one year, and there was an absolute neglect on the part of the husband to make suitable provision for his family. There was no excuse shown for the abandonment or for the neglect to provide. On the contrary, it affirmatively appeared that the respondent was a man of health, strength, and capacity sufficient to enable him to well provide for his wife and family, and he was shown to have received considerable sums of money during this period. The established, undisputed facts bringing the case clearly and conclusively within the letter of the statute, the condition of appellant’s feelings toward respondent, at the time of the trial, as adverted to in the findings, constituted no legal defense to her action. Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216.
The judgment of the honorable superior court is reversed, and the cause remanded with instructions to enter a judgment and decree as prayed for in her complaint.
Mount, C. J., Dunbar, Hadley, Fullerton, and Crow, JJ., concur.
Reference
- Full Case Name
- Hattie E. Swain v. Ed. S. Swain
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Divorce — Grounds—Nonsupport—Evidence—Sufficiency. Where, in an action for a divorce, the evidence shows an absolute abandonment for more than one year, and failure to provide any support for wife or children, by a man of capacity and well able so to do, bringing the case completely within the terms of the statute, there is no discretion, and it is error to refuse a divorce on the ground that the wife had not demanded support, or urged his return, and appeared indifferent as to his maintaining or living with her.