Klemmer v. Klemmer

<p>[1] Divorce—-Desertion—Res Adjudicata—Reconciliation.—A decree determining the fact of the husband’s desertion of the wife and denying him a divorce does not estop him from thereafter seeking a reconciliation and restoration; nor, in a subsequent action, does such decree constitute an adjudication of his desertion.</p> <p>[2] Id.—Recrimination—Implied Negative Findings.—In an action for divorce by the husband, in which the wife pleads certain recriminatory matters but does not seek a divorce, and no findings are made as to such matters, the court’s finding of her desertion of the husband does not imply negative findings in regard to the recriminatory matters.</p> <p>[3] Id.—Recriminatory Facts — Purpose op Pleading — Necessity por Findings.—Recriminatory facts should be pleaded, but they are pleaded and proved as a defense simply and in bar of the plaintiff’s canse. If evidence in support of the recriminatory matters pleaded is introduced or properly tendered on behalf of the defendant, she is entitled to a finding on the issues raised by the pleadings, but if no evidence is introduced or offered in support of the recriminatory pleas, or if the evidence is of so weak a character as not to amount to a showing that the defendant at the time of the divorce suit had a subsisting cause of divorce, failure to find upon them may be excused.</p> <p>1. Decree against plaintiff in suit for divorce as bar to subsequent divorce action, note, 26 L. R. A. (N. S.) 577.</p> <p>■ Prior action for divorce in which claim for divorce might have been asserted by counterclaim, setoff, or cross-petition as bar to subsequent action for divorce, note, 8 A. L. R. 721.</p> <p>3. Recriminatory defenses in suits for divorce, notes, 15 Am. Dec. 211; 86 Am. St. Rep. 333.</p> <p>Right of recrimination as affected by comparative gravity of offenses, notes, 6 Ann. Cas. 171; .Ann. Cas. 1917A, 177.</p> <p>[4] Id.—Adultery—Failure to Comply With Section 1019, Code op Civil Procedure—Evidence Inadmissible.—Where the defendant in an action for divorce charged the plaintiff with adultery, referring to the person with whom the acts of adultery are alleged to have been committed as Jane Doe, but, though having ampio time without substantial excuse failed to cause the statutory notice to be given to her, upon objection being taken to the admission in evidence of the deposition of one E- M-, offered in support of such ground of adultery on the ground that the defendant had failed to comply with the provisions of section 1019 of the Code of Civil Procedure, the trial court properly excluded such evidence; and its refusal in the middle of the trial to grant a continuance that such person might be served did not constitute an abuse of discretion.</p> <p>[5] Id.—Adultery as Becrimination—Want op Finding—Error.—In such case, there having been no showing of the existence of a cause of action for divorce subsisting in the defendant upon the ground of adultery, failure to find upon such issue did not constitute reversible error.</p> <p>[6] Id.—Extreme Cruelty—Belations With Another Woman — Declaration in Her Will — Admissibility op Petition.—Where the defendant in. an action for divorce pleaded, by way of recrimination, extreme cruelty on the part of the plaintiff, based upon the latter’s conduct and relations with another woman, but there was neither allegation nor offer of evidence charging such other woman with adulterous conduct, the court committed error in excluding as evidence a verified petition of the plaintiff filed in an estate in which such other woman was a beneficiary, and where he alleged the death of such woman and set forth her will in which he was named as a beneficiary, and therein referred to as her “fiance” and she as his “betrothed wife.”</p> <p>[7] Id.—Belationship With Other Woman—Admissibility op Evidence.—In such action, there being no charge of adulterous conduct between the parties, evidence regarding the plaintiff’s relationship with such other woman was admissible, not alone in support of the defendant’s recriminatory charges, but upon the issue of good faith on the part of the plaintiff in his offer of reconciliation.</p> <p>6. Belations or associations of spouse with persons of opposite sex as cruelty or abusive treatment within statute defining grounds of divorce, note, L. R. A. 1918D, 427.</p> <p>[8] Id.—Offer of Reconciliation—Good Faith—Presumption—Evidence.—The presumption of good faith attends upon every act, unless the surrounding circumstances are such as to overcome the presumption; and in this action for divorce, the letters and conduct of the plaintiff, Ms relations with the other woman, and the latter’s naming him in her will as a beneficiary thereunder, she referring to him as her betrothed husband, his claim to her estate under such will, his successive and unsuccessful suits for divorce, and his long-continued failure t'o provide support for his wife and child, showed that the element of good faith in connection with his offer of reconciliation was entirely lacking.</p> <p>8. Necessity of good faith in seeking reconciliation after desertion, note, 138 Am. St. Rep. 155.</p>