Damm v. Damm

Divorce ? Desertion ? What Constitutes ? Custody of Minors ? Discretion ? Evidence ? Depositions ? Decree ? Support of Divorced Wife not Authorized Under Statutes. Divorce ? Depositions Used in Former Action ? When Admissible. 1. In a divorce proceeding commenced by the wife in which defendant under his cross-complaint asked, inter alia, for the custody of their minor child, depositions used as evidence by defendant in a former action brought by him, resulting in a denial of the divorce, reflecting upon the fitness of the wife to have custody of the child, were properly admitted in the second action, the parties having been identical in both suits and it appearing that the wife had opportunity to, and did, cross-examine the deponents. Evidence ? Depositions Used in Former Trial ? Admissibility Dependent on What. 2. The admissibility of depositions used upon a former trial is not so much dependent upon exact identity of parties and causes of action as it is upon the identity of the question being investigated and the opportunity of the party against whom it is offered to cross-examine. Divorce ? Refusal of Wife to Come to Home Provided by Husband Constitutes Desertion, When. 3. Where the husband having a home in this state removed temporarily to a city in another state and on returning to his home in Montana with intention of remaining there, requested the wife to accompany him but met with the declaration that she would never again go there, such refusal constituted desertion on her part, in the absence of proof that the home was not a fit place in which to live or that her refusal to return was the result of his inability to pay for her transportation. Same ? Desertion by Wife ? Curable by Bona Fide Offer to Return. 4. Where the wife deserts the husband under circumstances referred to above (par. 3), to cure the desertion it was incumbent upon her, under section 5744, Revised Codes 1921, to attempt to effect a reconciliation and make an offer, in good faith, to return. 5. In determining the question as to which one of the parties to a divorce action shall have custody of the minor children, the welfare of the latter is a matter of paramount consideration which must of necessity be left largely in the sound discretion of the trial court, and its award in that respect will not be disturbed on appeal except on a showing of manifest abuse of that discretion. Same ? Custody of Minors ? Evidence ? Sufficiency to Uphold Judgment of Court Awarding Custody to Husband. 6. Evidence tending to show that while the parties were living in a city in Oregon, long before defendant husband returned to his ranch in this state, the wife had deserted the family residence and abandoned a minor child, renting a place for the ostensible purpose of running a dressmaking establishment which was later raided by prohibition officers who found a large amount of "homebrew," etc., she pleading guilty of illegal possession thereof, and showing other damaging facts, held sufficient to demonstrate that the court in awarding custody of the child to the husband did not abuse its discretion in the premises. Same ? Wife not Entitled to Support Where Husband Decreed Divorce for Offense of Wife. 7. In the absence of legislation permitting it, the district court is without authority to compel a husband to whom a divorce has been granted for an offense of the wife to make provision for her support. Same ? Wife Deserting Husband not Entitled to Support. 8. A husband is not required to support his wife while she lives separate and apart from him against his will and without his consent and refuses to follow him to his chosen place of residence.