Shirley v. Shirley

138 A.2d 392 (1958)

John Edward SHIRLEY, Appellant, v. Diane Lee SHIRLEY, Appellee.

No. 2089.

Municipal Court of Appeals for the District of Columbia.

Argued November 18, 1957.

Decided January 24, 1958.

Samuel Shapiro, Washington, D. C., for appellant.

Wesley E. McDonald, Washington, D. C., entered an appearance for appellee, but filed no brief.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

This is an appeal from a final judgment dismissing appellant's uncontested suit for an absolute divorce on the ground of desertion.

Appellant testified that the parties were married in November 1951; that approximately seven weeks later he went to work one morning at two o'clock and returned at noon to discover that his wife had left, taking her clothing; that he had not seen her since, made no effort to locate her, and does not know where she is presently living. Two other witnesses corroborated the fact that appellant had not lived with his wife since the time of the alleged desertion.

The court found, among other things, that appellant "gave no reason for his wife's leaving and offered no evidence that he was without fault," and that appellant's "evidence as to the alleged desertion of his wife was not credible."

As we indicated in Marcey v. Marcey, D.C.Mun.App.1957, 130 A.2d 918, the elements of the offense of desertion are a voluntary intentional abandonment of one party by the other, without cause or justification and without the consent of the party abandoned. Plainly appellant's evidence here falls short of these requirements in two respects: there was no showing that he was himself without fault or that he did not consent to the separation. Accordingly the trial judge was correct in dismissing appellant's complaint.

Affirmed.