
    CASE 21 — PETITION EQUITY
    SEPTEMBER 27.
    Lee vs. Lee.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    1. When th e wife abandons the husband without cause, she is not entitled to alimony.
    2. In a suit by the wife for a divorce, the court cannot, on the cross-petition of the husband, grant him a divorce on the ground of the wife’s abandonment, unless her abandonment had continued for a year before the filing of his cross-petition.
    Sweeny & Taylor, for appellant,
    cited 9 Dana, 52; 2 B. M., 142; 2 Kent, 126.
   JUDGE ROBERTSON

deliverer the opinion op the coürt :

Although we cannot touch the divorce a mensa granted to Mrs. Lee, we can, nevertheless, decide, and do decide, that the ■circuit court erred in adjudging that she is entitled to alimony. No reasonable cause has been shown for her abandonment of her husband; and therefore, if she choose to live separate and apart from him, he should not be required to support her or contribute to her maintenance.

If her abandonment without his “fault,” whieh means conduct justifying the abandonment, had been continued one year before he filed his answer and cross-petition praying for a divorce a vinculo, he might, according to the present aspect of the case, have been entitled to such divorce. But at that time her final abandonment had been continued only about nine months; and no amendment was filed alleging an abandonment for a year. The circuit court did not err, therefore, in refusing, on that state of pleading and proof, to grant him a ■divorce. But, on the return of the case to the circuit court, if the parties shall still be unreconciled and apart, they may amend their pleadings and proof for an ultimate and more satisfactory adjustment of their unhappy difficulties.

Judgment reversed, and cause remanded for further proceedings as herein indicated.  