CHARLESTON.

#### Julia Herbeck *v.*Joseph Herbeck

(No. 6255)

Submitted February 19, 1929.

Decided February 26, 1929.

*Poffenbarger & Poffenbarger,*for appellant.

Maxwell, Judge:

This is a divorce ease.

The parties were married at Charleston January 1, 1925, and went at once to the City of Baltimore where they took up their residence. The defendant was employed as a draftsman at Sparrows Point a few miles from the city. About the middle of the following month the plaintiff returned to Kanawha County, West Virginia, and has not lived with her husband since that time. She instituted this suit in the Common Pleas Court of said county about one year later.

The burden of her bill of complaint is that the defendant has been guilty of extreme cruelty toward the plaintiff; that he mistreated and abused her and made threats against her life; that he deceived her as to his nationality and by fraud secured her consent to marry him; that while she resided with *37tbe defendant at Baltimore be would be away from ber from six o’clock in tbe morning until seven o’clock in tbe evening, leaving ber alone in tbeir apartment; that sbe and tbe defendant' are wholly unfitted to live *together;*and that they are not temperamentally suited to each other. Tbe prayer of tbe bill is for an absolute divorce, or annulment of tbe marriage, and for general relief.

Tbe defendant was proceeded against as a non-resident. He was not served with process. On tbe bearing, upon order of publication and upon tbe plaintiff’s bill and depositions in ber behalf, tbe court entered a decree on tbe 21st day of June, 1926, annulling tbe marriage. On tbe 20th day of November, 1926, after having given proper notice to tbe plaintiff, tbe defendant filed bis petition in tbe trial court to have tbe proceedings reheard, -whereupon, on said date, tbe court granted leave to tbe defendant to file bis answer and to make such defense in tbe cause as was lawful and proper. Pursuant to that authority tbe defendant filed an answer and took tbe depositions of himself and others in support of bis defense to tbe allegations of tbe plaintiff’s bill. On final bearing, August 29, 1927, tbe court set aside tbe annulment decree of June 21, 1926, but being of opinion that tbe plaintiff was entitled to a divorce from bed and board from tbe defendant, entered a decree granting ber such relief. From that decree tbe defendant prosecutes this appeal.

Tbe record does not disclose any misconduct on tbe part of tbe defendant justifying tbe plaintiff in abandoning him at tbe City of Baltimore. Evidently they bad some little differences, but it does not appear that be mistreated ber in any particular. His absence through long hours each day from tbeir apartment was necessitated by bis regular employment by tbe Bethlehem Steel Company at its plant some fourteen miles away. Her allegation that prior to tbeir marriage be deceived ber as to bis nationality, even if serious, is not well taken because it appears from a letter which be wrote to ber parents a few weeks before tbeir marriage that be fully disclosed that be was born of parents who bad immigrated to this country some forty years ago. In this very gentlemanly letter, wherein be sought tbe consent of tbe parents to bis *38contemplated marriage with tbeir daughter he told them fully about himself and offered to answer any inquiries that they might desire to make of him. The young lady was at that time residing with her parents and it must, of course, be presumed that she was informed of the contents of the letter upon its receipt by them. The parents gave their consent to the marriage and at their request an older daughter wrote the defendant to that effect. The plaintiff’s lonesomeness and homesickness after she reached the City of Baltimore as the wife of the defendant did not justify her in abandoning him. He is not proven guilty of any misconduct that is recognized by our statute as ground for divorce. In the absence of such misconduct on his part she was not warranted in deserting him. *Dawkins*v. *Dawkins,*72 W. Va. 789. But he does not seek a divorce. There appearing to be no legal basis for the decree awarding the plaintiff a divorce from bed and board, we reverse the same and dismiss the cause.

*Reversed and dismissed.*