96 P. 666 | Kan. | 1908
The opinion of the court was delivered by
In this action Walter Bovaird petioned for a divorce from his wife on the ground of abandonment., She answered denying that she had ever deserted or abandoned her husband, and alleging that he had abandoned her and had instituted three different actions against her for divorce, two of which were tried and decided adversely to him and the other was dismissed. She also alleged that he had been guilty of adultery with a number of women and had been living a dissolute life, and her prayer was that a divorce be refused and that she be granted alimony.
At the trial the court made special findings to the effect that the parties were married in 1888; that in 1897 the plaintiff abandoned his wife, without cause or
Notwithstanding the recited facts, the plaintiff is. here insisting that he is entitled to a decree of divorce. Abandonment was the only ground upon which a divorce was asked, and the court found upon unquestioned!
“It is no more than the application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands. Divorce is a remedy for the innocent and injured, and the plaintiff that has himself broken the marriage contract can not well ask to be relieved from its obligations because his spouse may also have broken it.” (Page 388.)
Much less may an offending plaintiff ask for the severance of the matrimonial bonds where the spouse is free from blame. There is a strong statement of the same rule in volume 2 of the fifth edition of Bishop on Marriage, section 87, in this language:
“The matrimonial relation is one of mutual dependence and duty; and it would seem to be within all legal analogies, and all sound canons of morality, to refuse to hear a plaintiff complaining of the defendant’s infraction of one of the links of this common chain, when*318 he had equally broken another. Moreover, the law is for the assistance of those who obey it, not those who violate it; and, when two parties are both in the same wrong, the court helps neither.”
But plaintiff calls attention to the fact that since coming to Kansas he has apologized for his wrong, has requested his wife to resume marital relations, has offered to provide her with a home, and. that these tenders have all been made in good faith. At an earlier timé he proposed reconciliation and offered her a home in South Dakota, but the court that tried the case be- ' gun in that state found that the offer was not bonafide and was only made for the purpose of laying the ground for an action of divorce. Is it any wonder that she distrusts his motives in the later offer or that she should be slow to accept him as a repentant and reformed spouse? It is noticeable, too, that he couples with his confession and proposal the statement that his wife was in fault.- Aside from his previous duplicity and deceit there are the admitted acts of adultery to make her ■ hesitate, and it is not easy to overlook or condone matrimonial offenses of that gravity. They were not only wrongs against her, but were wrongs' against society, and public opinion does not readily sanction the conduct of a spouse who condones adultery in the other. But is she compelled to condone his wrongs when her husband confesses his guilt and informs her that he is ready “to forget and forgive the past?” Courts are inclined to encourage reconciliation and the resumption of the marital relation between, spouses who are estranged; but here plaintiff is claiming the benefit of an . offer of reconciliation made, it. must be assumed, in good faith, and is using it as a. •basis for a charge of desertion against his wife in order to obtain a complete severance of the marriage-bonds. Seven years before that time he had broken his marriage vows in a number of ways, but she had never-condoned his misconduct; and must it be said that she ■
According to the ecclesiastical law one who committed adultery was not entitled to any relief, and while the modern law is not so strict or severe it does not enforce condonation upon a faithful wife who has been loaded with shame and sorrow resulting from the infidelity and gross misconduct of her husband. Even in the case of the less serious ground of desertion the rule is that if the deserter desires to put his wife in fault by an offer of reconciliation it must be made before the other party acquires the right to a divorce against him. In Benkert v. Benkert, 32 Cal. 467, it was held that repentance does not obliterate the matrimonial offense, and that, where the offending party comes with an offer of reconciliation after the time has expired and the right of action has fully accrued for desertion, the injured party is not obliged to accept such an offer, and, also, that the offer is not binding upon one who makes it unless it is accepted and acted upon. It has been said:
“The offer to return is ineffectual if made after the statutory period has elapsed. However wilful the leaving may have been, or however destitute of reasonable cause, it is not a ground of divorce unless the separation has continued for the statutory period. The ‘door of repentance and return’ must be kept open during that period. But after the statutory time has elapsed the injured party has a cause for divorce. If such party refuses to renew cohabitation it is not desertion. For to renew cohabitation is to condone the offense, and the law does not enforce condonation. The refusal of an offer to return will not bar the divorce to which the party is already entitled.” (1 Nelson, Div. & Sep., § 75.) •
Reconciliation may, in the course of time, follow reformation, but the court will not hold that because the defendant did not accept the plaintiff’s proposal she is to be treated as a deserter, nor that he be awarded a divorce on the theory that she is the party
The judgment of the district court is affirmed.