{
  "id": 1407874,
  "name": "McKay v. McKay",
  "name_abbreviation": "McKay v. McKay",
  "decision_date": "1927-02-14",
  "docket_number": "",
  "first_page": "918",
  "last_page": "922",
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  "last_updated": "2023-07-14T19:50:04.452939+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "McKay v. McKay."
    ],
    "opinions": [
      {
        "text": "Smith, J.\nAppellant and appellee were married in 1917 and lived together until October, 1923, at which time they separated. Appellant brought suit for divorce, alleging cruel and inhuman treatment on the part of appellee, her husband. At the trial of this suit in March, 1924, the court denied appellant\u2019s prayer for divorce, and dismissed her complaint.\nIn October, 1924, appellant employed a different attorney and brought a second suit for divorce, alleging, in substance, the same grounds recited in the first complaint; but this suit appears to have been dismissed.\nIn May, 1925, appellant employed her present attorney and brought this, her third, suit for divorce, in which she alleged that appellee had deserted her. Appellee filed an answer and cross-complaint, in which he denied that he had deserted appellant, but alleged the fact to be that she had deserted him and had continued her desertion for the period of more than one year, and had annoyed him with frivolous suits for divorce, and he pleaded the decree in the first suit as a bar to the present cause of action.\nAt the trial from which the present appeal comes the prayer of appellant for a divorce was refused and that of appellee granted. At this trial numerous witnesses were examined, but we think no useful purpose would be served in setting out this testimony in detail.\nWe think the present suit of appellant is not barred by the decree in the first suit, for the reason that she .alleges a different cause for divorce, one which could not have existed when she filed her first suit \u2014 that of desertion \u2014 as the parties had not been separated a year when the first suit was commenced. I Nelson on Divorce and Separation, \u00a7 555.\nIt is true, as is insisted by. counsel for appellee, that appellant left appellee without sufficient cause, and the parties have since been separated for more than a year. The decree in the first cause, wherein cruel treatment is alleged, is. not, as we have said, a bar to the present suit, wherein desertion is alleged as the ground for divorce; but the first decree is conclusive of the fact that appellant was not driven from her home by appellee\u2019s cruel treatment. The court was correct therefore in holding that it was appellant who had deserted appellee, and not he who had deserted her.\nIt is true also that the parties have since been separated for more than a year. This makes a prima facie case of desertion, inasmuch as appellant had left appellee without justification for so doing, but we think it very clearly appears that, before the desertion had continued for a year \u2014 and thereby become a statutory cause for divorce \u2014 appellant attempted, in good faith, to effect a reconciliation with appellee. She expressed her willingness and desire to return to appellee and to live with him, and he has shown no cause for refusing to permit her to return, except that she left him and instituted a suit for divorce without having legal right to that relief.\nIf one spouse leaves another without cause and absents himself or herself from the innocent spouse for the period of a year, a completed cause for a divorce arises, and, when the cause of action has been thus perfected, the offending spouse cannot, by offering, in good faith, to return to the conjugal relation, destroy. the right of action which the other has to sue for a divorce. Desertion, like any other cause for divorce, may be condoned, but the right of condonation lies with the innocent spouse, and not with the guilty one.\nIn the chapter on Divorce and Separation in 9 R. C. L., \u00a7 148, it is said: \u201cIf a statute declares that divorce may be granted for desertion for a time specified, there seems to be no dissent from the proposition that desertion continued for such period creates a perfect right to a divorce which it is beyond the power of the party in the wrong to destroy without the consent of the other. Hence an offer to discontinue the desertion and return to and live with the deserted spouse, though made in good faith and before the institution of any suit for divorce, cannot, unless accepted, constitute any defense to such suit.\u201d The cases cited in the note to the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 84 A. S. R. 135, sustain the text quoted.\nBut, before the desertion had continued for a year \u2014 \u25a0 and therefore before appellee\u2019s cause of action had matured \u2014 appellant offered more than once, and, we think, in good faith, to return to and live with appellee, and when she did this the desertion on her part ceased.\nWe conclude therefore that the court was in error in holding that appellant had deserted appellee.\nIn the case of Griffin v. Griffin, 166 Ark. 85, 265 S. W. 352, we said that \u201cthe court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke. In such cases the parties must, by mutual concessions, make the yoke lighter. \u2019 \u2019\nAppellant, by her recantation and offer to return to appellee, terminated the desertion, and she did so before her desertion matured as a cause for divorce in appellee\u2019s favor, and it was error therefore to grant him a divorce.\n. We have concluded that the decree granting appellee a divorce should be set aside, and it is so ordered, and the cause will be dismissed.",
        "type": "majority",
        "author": "Smith, J."
      }
    ],
    "attorneys": [
      "Price Shofner, for appellant.",
      "B. 8. Kinsworthy, for appellee."
    ],
    "corrections": "",
    "head_matter": "McKay v. McKay.\nOpinion delivered February 14, 1927.\n1. Divorce \u2014 former decree as bar. \u2014 rA decree dismissing a wife\u2019s suit for divorce on the ground of' cruel and inhuman treatment, brought before a cause of action for desertion had accrued, did did not bar her subsequent suit on the ground of desertion brought after such desertion had continued for the required year:\n2. Divorce \u2014 bar of cause 0f action. \u2014 A decree of dismissal, in a wife\u2019s suit for divorce 0fC;.the ground of cruel treatment, is conclusive of the fact that the wife-was not driven from home by the husband\u2019s cruel treatment; in a subsequent action by her on the ground of desertion. , \u25a0\n3. Divorce \u2014 evidence of desertion. \u2014 In an action for divorce on the ground of desertion, evidence that the parties have been separated for more than a year and that there was no justification for the desertion establishes a prima, facie case.\n4. Divorce \u2014 desertion\u2014completed cause op action. \u2014 If one spouse leaves another without cause and absents himself or herself from the innocent spouse for a year, a completed cause of action for divorce arises.\n5. Divorce \u2014 desertion\u2014offer to renew cohabitation. \u2014 One who without cause deserts his spouse for a year cannot, by offering in good faith to return, destroy the completed cause of action for a divorce.\n6. Divorce \u2014 condonation.\u2014Desertion, like any other cause for divorce, may be condoned, but the right of condonation lies with the innocent, and not with the guilty, spouse.\n7. Divorce \u2014 offer to renew cohabitation. \u2014 A wife\u2019s desertion did not entitle the husband to a divorce on that ground, where, before expiration of a year and maturity of the cause of action against her, she in good faith offered to return and live with her husband.\nAppeal from Pulaski Chancery Court; John E. Martineau, Chancellor;\nreversed.\nPrice Shofner, for appellant.\nB. 8. Kinsworthy, for appellee."
  },
  "file_name": "0918-01",
  "first_page_order": 936,
  "last_page_order": 940
}