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• Title: Clem v. Clem
• Author : Supreme Court of Montana
• Release Date : January 17, 1934
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 57 KB

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Husband and Wife ? Divorce ? Desertion ? Separate Maintenance ? Cross-complaint of Defendant Wife ? Sufficiency ? Pleading ? What Necessarily Implied Deemed Directly Averred ? Rejection of Reconciliation ? Reasonableness of Award to Wife ? Appeal and Error. Divorce ? Desertion ? Separate Maintenance ? Sufficiency of Cross-complaint of Wife. 1. Cross-complaint of the wife, in an action for divorce on the ground of desertion, praying for separate maintenance based on desertion by the husband, alleging that the wife at the request of the husband had removed to another state; that the husband had given her to understand that he did not desire her to return and that he had refused to cohabit with defendant wife, held sufficient to state a cause of action for separate maintenance. Same ? Separate Maintenance ? Offer of Reconciliation ? Pleading ? What Necessarily Implied Deemed Directly Averred. 2. In pleading, whatever is necessarily implied in or reasonably to be inferred from an allegation must be taken as directly averred; and under that rule, an allegation in the cross-complaint of the wife, above referred to, that plaintiff husband had refused to maintain further marital relations with defendant, was equivalent to averring an offer to return, i.e., that she had sought reconciliation, which was refused, refusal in such circumstances constituting desertion on the part of the husband. (Sec. 5743, Rev. Codes 1921.) Same ? Initial Mutual Separation of Spouses ? Attempted Reconciliation ? Rejection of Offer Constitutes Desertion. 3. Where a separation between husband and wife was in its inception by mutual consent, such consent continued until revocation thereof by one or the other party seeking reconciliation; thereafter the one rejecting the overtures thus made is guilty of desertion. Same ? Separate Maintenance ? Sufficiency of Evidence to Show Desertion by Plaintiff Husband. 4. Evidence in an action for divorce by the husband for desertion, in which by cross-complaint the wife sought separate maintenance on the same ground, held to show that the wife had lived in another state with the children for about nine years with the consent of the husband, that she was anxious to resume marital relations, and that plaintiff husband rejected her offer of reconciliation, etc., held sufficient to justify the finding of the trial - Page 571 court that the husband was guilty of desertion, and the wife entitled to separate maintenance. Same ? Separate Maintenance ? Reasonableness of Award Under Facts. 5. An award of $40 a month made to the wife as separate maintenance, on the ground of desertion by the husband, who had a steady income of $178.67 a month, held reasonable, the wife being physically unable to earn a living, other than a precarious one by way of occasional sewing and teaching music to a small class of pupils. Same ? Trial Without Jury ? Admission of Improper Evidence ? Presumption on Appeal That Court Disregarded Such Evidence. 6. If the court in a divorce action committed error in admitting evidence as to communications between the parties after the commencement of the action, it will be presumed on appeal, where the cause was tried by the court without a jury, that in arriving at its conclusion the court disregarded such testimony.

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