Appeal from the Circuit Court of Clay County; the Hon.
FRANKLIN R. DOVE, Judge, presiding. Reversed.
HOFFMAN, PRESIDING JUSTICE.
This case involves an appeal from a decree of divorce awarded the plaintiff wife on the grounds of desertion. The decree awarded the plaintiff a divorce, ordered the defendant to pay plaintiff her attorney fees in the sum of $1,000 and, in addition, vested in her a homestead estate in the domicile which was owned by the defendant. The decree further ordered defendant to pay all taxes assessed against the homestead and to make all necessary and reasonable repairs thereto. Further, it provided that the defendant was to pay plaintiff the sum of $200 a month as alimony and the same was made a lien upon the real estate.
The defendant argued in the trial court and strongly urges in this court that the decree is contrary to the manifest weight of the evidence. In particular, he contends that the evidence falls far short of establishing desertion under our law.
The parties here were married in 1917. At the time of the hearing the husband was almost 64 years of age and the wife was 67. They had lived together in the same house in Iola for better than 30 years, and had raised two children. During the course of their marriage, both had accumulated property, by savings, hard work and inheritance, so that at the time of the hearing the husband held farm land valued between $70,000 and $131,000, while the wife had bank accounts totaling approximately $5,000. There is no evidence that the husband worked, but the wife was head cook at the grade school cafeteria where she earned $115 a month, and, in addition, was the recipient of a monthly social security check in the sum of $40.40.
Prior to December of 1958 the parties lived in the same house, an old dilapidated structure, which was without a furnace or running water, and had rotting floors and sills. For 15 to 20 years prior to this time, these people, though living in the same house, had no sexual relations, slept in separate bedrooms, ate their meals separately (he doing his own cooking) and they scarcely, if ever, talked or communicated in any way with the other. Up and until the past 12 years plaintiff wrote checks upon the husband's bank account and had all her material needs furnished to her. However, for the past 6 years, at least, the husband made no provision for the wife, except to pay the fuel and electric bills in the home which was owned by him. She has been working at the school cafeteria to support herself otherwise.
On December 4 or 5, 1958 the husband went to Florida. He testified that this was the second time he had done this and that he went both times pursuant to his doctor's orders. As on the previous occasion, he neither took nor offered to take his wife with him nor did he write to her from Florida. She learned where he was only by talking with her neighbors and her grandson. He spent the winter in Florida and returned to the home in Iola in March, 1959. All of the time he was in Florida he paid the fuel and electric bills at the home, and continued to do so even after this suit was filed. When the defendant returned in March, he lived in the home with plaintiff, exactly as he had previously, for about one week, and then moved into a trailer out on one of his farms. He had purchased the trailer in Florida. From that time on, defendant has lived alone in the trailer, only returning to the home to get tools and personal belongings.
On December 23, 1959 the plaintiff filed this suit for divorce, alleging as her grounds the desertion of the defendant, commencing upon December 5, 1958.
With regard to the alleged separation on or about December 5, 1958, there is very little evidence in the record. However, the following testimony of the plaintiff is most significant: When she learned that he had gone to Florida, she testified that "I didn't do anything about it. . . . It didn't occur to me that it was unusual that he did go to Florida. . . . I wasn't surprised. . . ." Then, the following questions and answers appear:
"Q. Was it against your will that he went this time?
"Q. You didn't care, did you? It didn't make any difference to you, did it?
"Q. Well, did you care or didn't you care?
"Q. You did care. How much did ...