Tarr v. Tarr

²⁰⁷ Parke, J., delivered the opinion of the Court. Joseph Sidney Tarr and Alice M. Tarr, his wife, were married on March 31st, 1920, and lived together for over eight years. On November 13th, 1931, the husband filed a bill of complaint for an absolute divorce on the ground of abandonment and desertion by his wife. In her answer the wife categorically denied the material allegations of the bill of complaint, and, a few days after her answer, she filed a cross-bill in which she charged her husband with abandonment and desertion, alleged she was without means of supporting herself and meeting the costs and expenses of the litigation between her husband and herself, and prayed for a divorce a mensa et thoro, temporary and permanent alimony, and counsel fees.

On this second bill of complaint, the chancellor passed an order nisi directing the husband to pay the sum of $100 as counsel fee for the wife’s solicitor, and the weekly sum of $20 as alimony pendente lite. The husband showed cause why counsel fee and alimony should not be allowed, and denied all the material allegations of the wife’s bill of complaint, except that he admitted his failure to contribute to her support, but justified his course on the ground of her alleged desertion. After testimony, which is not in the record, and a hearing, the wife was awarded $100 as a counsel fee for her solicitor, and the sum of $20 a month as.alimony pendente lite, and the parties took their testimony in open court, beforedhe chancellor, on the issue of divorce. An absolute divorce was granted the husband, and the cross-bill of the wife was dismissed, and she took an appeal from this decree.

Both spouses had been previously married, and no child was bom of their union. The husband took his wife to his farm, where his daughter, a young woman, lived. Within a mile from his home the sister of the wife lived with her husband, Upshur Lang, and their young children. The sister fell sick in October, 1928, and the wife helped to nurse her, without any objection by Tan*.

In November, Mrs. Lang was taken to the hospital, and Mrs. Tarr went with her, and returned when the invalid was brought back in January, ²⁰⁸ 1929, the latter lingering until May lYth, 1929, when she died. During this period, Mrs. Tarr did not live at her home because of her nursing of her sick sister; but the husband and ■wife are in direct conflict in regard to the nature of this separation. The husband testified that, after his wife left his home in November, 1928, she declined to return to him; that her visits to his house were to get articles which she desired; and that all marital relations had ceased with her first departure. The wife insists that her going to her sister’s was with no intention of desertion, but solely to nurse her ill sister, and that she sought to return to her husband, whose daughter had married and brotaght her husband to her father’s residence, but that he declined to receive her, although she frequently visited him at his home during the day and he came to see her at her sister’s dwelling, and that marital intercourse marked these occasions, and only ceased with his last visit of November 29th, 1931, which was after he had filed his bill of complaint for divorce.

It will illustrate no legal principle to present in detail and discuss the conflicting testimony in the cause at bar, which involves no more than the application of firmly established rules to the facts on this record; and so the conclusions of the court, after a careful consideration, analysis, and weighing of all the