Wagner v. Wagner

Urner, J., delivered the opinion of the Court. The appellant sued for divorce from his. wife on the ground of adultery. No defense was made to the suit in the first instance, and the offense charged in the bill was duly proved. When the case was ready for a decree the defendant represented to the judge before whom it was pending that her husband, had cohabited witb her since the institution of the suit.

In view of this information the Court declined to decree the divorce, but the bill was not dismissed. The plaintiff subsequently filed a. petition in which he denied his wife’s statement as to the resumption of their marital relations, and alleged that she continued to- commit adultery after making the representations which induced the Court to refuse the divorce. The petition prayed that the case be remanded for further proof, and an order was passed for that purpose. Both parties then offered testimony upon the issue as to whether there had been cohabitation since the acts of adultery charged in the bill of complaint, the commission of the offense not being disputed.

It had already been proved that the plaintiff left his wife in July, 1915, on account of her marital infidelity, hut the defendant testified that ho afterwards frequently visited her in the homo in which she' had remained, and that marital intercourse repeatedly occurred on such occasions until April, 1916, when the visits were finally discontinued. It was admitted by ³⁴⁸ the plaintiff that he often returned to the home after separating from his wife, but he stated that he went there solely for the purpose of seeing their only child, a boy five years of age, who had been left with his mother under an agreement that the plaintiff would malee weekly payments for his support, and it was denied by the plaintiff that he at any time cohabited with his wife after the commission of the offenses which caused their separation. The defendant’s mother and uncle testified that on the occasion of the plaintiff’s visits to his former home he was sometimes alone with his wife in her room, although the child was usually present. In April, 1910, as the evidence shows, the defendant was ill, and at her request the child was taken by the father and has since remained in his custody.

The testimony is direct and uncontradicted that in July, 1910, the defendant was continuing her adulterous relations with the same person who was implicated in the marital offenses originally, proven. Upon a resubmission of the case for final decree the divorce was denied and the bill dismissed on the ground that the adultery of the wife charged in the bill had been condoned, and that the repetition of the act with the same person after the suit, while provable for corroborative purposes, could not be made the basis of a decree dissolving the marriage. From that decision the plaintiff has appealed. In our view of the case a divorce should have been granted.

Even if we were to conclude from the evidence that, after the adulteries charged in the bill of complaint were committed, the husband sustained relations with his wife which had the effect of condoning those offenses, which is a question we do not find it necessary to decide, yet she is shown to have been guilty of flagrant marital infidelity subsequent to the latest period to which the acts of condonation can be referred. It is an established principle in the law of divorce that condonation is