Grace F. ANTON, Appellant,
James L. ANTON, Appellee.
Husband's divorce action. The Superior Court, New Castle County, granted decree of absolute divorce on ground of constructive desertion, and wife appealed. The Supreme Court, Southerland, C. J., held that evidence on issue whether wife tolerated husband for what he was worth and no more, and was a wife in name only, supported finding that wife had been guilty of constructive desertion.
[49 Del. 432] Appeal from a judgment of the Superior Court of New Castle County, granting to the plaintiff below a decree of absolute divorce on the ground of constructive desertion. Affirmed.
James M. Tunnell, Jr. of Tunnell & Tunnell, Georgetown, for appellant.
Warren Roberts, Wilmington (A. James Gallo, Wilmington, with him on the brief), for appellee.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
The question in this case is whether the specific findings of the trial judge are sufficient to support his conclusion that the defendant (the wife) was guilty of constructive desertion.
One of the causes for absolute divorce under the Delaware statute is ‘ wilful desertion for two years'.13 Del.C. § 1522. In construing this statute our courts have approved the doctrine of ‘ constructive desertion’ .
Harrington v. Harrington, 8 W.W.Harr. 333, 38 Del. 333, 192 A. 555. In the liberal view of this doctrine, one spouse may leave the other and sue for divorce after two years if the latter's conduct has been such as to be absolutely inconsistent with the marriage relation and such as to make it ‘ impossible to continue cohabitation with safety, health or self-respect’, even though such misconduct is
not in itself a specified ground for divorce. This view was adopted by the Superior Court. 8 W.W.Harr. 337, 38 Del. 337,192 A. 557. In approving the rule, the court said:
‘ In fact, if any other rule were applied one of the parties might be compelled in some cases to submit to indignities that would make life almost intolerable.'
The court added, however:
‘ Perhaps we might also state that disagreements, on whatever ground, incompatibility of temper, want of affection, or such treatment as merely disturbs the peace and quiet of the family home are not sufficient to justify the husband in leaving [49 Del. 433] his wife.’ 8 W.W.Harr. 337-338, 38 Del. 337-338,192 A. 157.
As counsel for the wife correctly says, this is a rule the application of which presents troublesome questions. There is no evidence in this case of misconduct affecting the husband's health or safety. At what point does misconduct cease to constitute mere disagreements, incompatibility and so forth, and become misconduct to a degree making it impossible to continue the marriage relation with self-respect? Obviously no rule of thumb can supply the answer to this question. The inquiry involves a difficult task-an examination of all the acts of the parties leading to the break-up of the marriage, and an evaluation of the degree of wrongdoing of the accused spouse. The final conclusion-that the misconduct has become so flagrant as to produce a condition no longer to be borne-must be arrived at as an over-all inference from specific facts found by the trial judge. Our courts have been conservative in applying the rule, and we think rightly so. See the Harrington case, supra, and
Hudgins v. Hudgins, 8 Terry 247, 47 Del. 247, 90 A.2d 478. The rule may not be used, by a process of gradual ‘ liberalization’, to grant divorces on the ground of incompatibility. But the familiar rule that the trial judge, who sees and hears the parties before him, is in a better ...