Chalkley v. Chalkley

Prescott, J., delivered the opinion of the Court. The decision in this case turns entirely upon findings of facts. The appellant sued his wife for an absolute divorce on the ground of voluntary separation of the parties for the statutory period. The wife answered his complaint and had her attorney present at the taking of the testimony of the witnesses of her husband, -which was taken before an Examiner.

Her attorney cross examined the husband and his witnesses, but the appellee did not testify or offer any evidence in her behalf. The chancellor found that after the separation of the parties, which will be mentioned shortly, the wife had “made repeated efforts to reconcile the marriage.” He therefore refused to divorce the parties, granted custody of five of the parties’ children to the wife (and provided for their support by the husband), granted custody of one of the children to the father, and awarded counsel fees from the father to the wife’s counsel. The only provision of the decree which is contested is that portion denying the divorce. The parties were married in 1942 and six children were born as a result thereof.

As early as 1956, marital discord developed, and in that year sexual relations between the parties ceased. The appellant testified that in May of 1960, he, with the consent and approval of his wife, occupied a bedroom in a separate part of the home from the wife. On December 8, 1960, she awakened him and told him “to get out and get his divorce.” He indicated to her that he would do so and packed his belongings. She had taken one of the children to school and he awaited her return, and when he attempted to speak to her, she walked by him on the driveway without a word.

The separation of the parties has been continuous and uninterrupted since the above date. After a period of eighteen months had elapsed, suit was instituted. Appellant offered his daughter, Carol, as a witness. She testified that after December 8, her mother told her that she told ³³² the husband to get out (but she had done so in anger), and based upon this conversation with her mother, it was her understanding that her mother was willing for her father to have left on December 8.

The only evidence concerning any attempts of the wife to become reconciled is found in the testimony of the appellant and the daughter, Carol. Appellant was asked if his wife had made any effort to have him return after his departure. He stated that beginning in 1961, she, on several occasions, asked him, “When are you coming home.” He explained to her the reasons why he would not return and she referred to those reasons as-“a grudge list.” He interpreted her questions “When are you coming home” as a desire on her part to have him return and “assume the same sort of relationship as before” (without sexual relations and the parties occupying separate bedrooms). Carol testified that her mother wanted her father “to come back to the house” for a short time after he left, but her mother had never indicated to her that she wanted her father to live with her as man and wife.

In addition to his own testimony and that of his daughter, appellant offered his father as a witness. He testified that after the separation, he went to see his daughter-in-law. He