
    Fred P. Pierce vs. Ida Pierce.
    January Term, 1897.
    Present: Ross, C. J., Tart, Rowell, Tyler, Start and Thompson, JJ.
    
      Divorce — Petitioner's Wilful Desertion a Bar — Presumption in Support of Judgment Below.
    
    In a divorce proceeding the county court found the petitionee guilty of adultery, but dismissed the petition. As the parties were leaving the place where the marriage ceremony was performed the petitioner had said to the petitionee, “You go your way and I will go mine,” and had nothing to do with her afterwards. Held, that it must be presumed, in support of the judgment, that the court found the petitioner guilty of wilful desertion for three years, the contrary not appearing.
    Petition for divorce. Heard at the December Term, 1896, Windsor County, Mtmson, J., presiding.
    Petition dismissed. The petitioner excepted.
    The petition was not contested, and the facts stated in the opinion as to the manner in which the parties separated were drawn out by inquiries of the court.
    
      J. G. Harvey for the petitioner.
    The petition was dismissed on the ground that the petitioner’s conduct was such as would have given the petitionee a cause for divorce but for her own fault. The bill of exceptions, however, does not show that the desertion was wilful, nor that it continued for three years.
   Thompson, J.

This is a petition for divorce on the ground of adultery. The court found the petitionee guilty of adultery. As the parties were leaving the place where the marriage ceremony was performed, the petitioner said to the petitionee, “You go your way and I will go mine,” intending thereby to have her understand that he should have nothing more to do with her: Thereupon they separated, and the petitioner has had nothing to do with the petitionee in any way since then. The court below dismissed the petition, to which the petitioner excepted. To sustain the judgment of the court below, it is to be presumed, the contrary not appearing from the record, that that court found the facts necessary to sustain it. The evidence tended to show wilful desertion of the petitionee by the petitioner, and it will be presumed that the court found it to be wilful and continuous for three years before the commission of the adultery by the petitionee. This would bar the petitioner’s right to a divorce. Tillison v. Ttllison, 63 Vt. 414, is full authority for this holding.

ffiidgment affirmed.  