80 P. 974 | Kan. | 1905
This was a controversy between husband and wife. The plaintiff brought the suit asking for a divorce on the ground that his wife had been guilty of adultery, gross neglect of duty, and extreme cruelty. A female child was born of the marriage, which was about seven years old at the time of the trial, and for whose custody the plaintiff asked. In the answer and cross-petition of the defendant she denied the charges of marital misconduct, and alleged that the plaintiff had violated his marriage vows by frequent instances of extreme cruelty to her, and that he had also been guilty of gross and long-continued neglect of duty. She asked for a dissolution of the marriage relation, the custody of the little girl, and a division of the property that they had accumulated. At the end of his testimony the trial court, assuming that she had committed the acts charged against her, held that they had been condoned, and, therefore, that the plaintiff was not entitled to a divorce. She offered testimony tending to sustain the averments of her petition, and the court, finding that both plaintiff and defendant appeared to be in equal wrong, denied the divorce, awarded the custody of the child to its mother, ordered the husband to pay ten dollars per month towards its support, and directed an equitable division of the property.
Plaintiff complains, first, of the order of the court that required him to pay seventy-five dollars to the defendant as expense money and attorneys’ fees prior to the time of her answer and the final adjudication. It appears to be contended that the statute does not warrant provision for the expenses of a suit by the wife, unless she is the plaintiff in the case. The court is authorized, after a petition has been filed in a suit for divorce and alimony, or for alimony alone, to “make such order relative to the expenses of the suit as will
The next complaint is of the ruling of the court holding that the plaintiff’s testimony did not warrant the granting of the divorce. He offered testimony tending to show that his wife had adulterous relations with Homer Craft, a young man living in the neighborhood, and also testimony showing that she had been guilty of unwifely conduct with others. He states 'that his wife admitted to him a number of adulterous acts, running through a period of months, but he said that she claimed that they were not voluntary on her part. It appeared, too, that Craft told the plaintiff in detail of his relations with defendant, and yet he continued to live with his wife for about two years after learning of her alleged criminal conduct. During this time there were jar and clash and bitter quarrels between them. He frequently charged her with infidelity, and at one time separated from her because of a belief that she was guilty of adultery, but he stated that he was induced by his uncle to return and live with her on account of their child. The trial court assumed that his imputations of marital misconduct were true, but found that they had been condoned, and that he was therefore not entitled to a divorce.
Plaintiff argues that he forgave and reinstated his wife on the theory and belief that she was compelled to yield to the embraces of Craft, and that if he had been assured of her guilt he would not have continued to live with her. An essential element of condonation is a full knowledge by the injured spouse of the mari
She offered proof tending to show extreme cruelty and gross neglect of duty, and at the close of all the testimony the court found that both had violated their marriage vows and for that reason denied a divorce, awarded the custody of the minor child to the mother for the time being, and divided the property. It is contended that in any view that may be taken of the testimony there was not that mutuality of fault that justified the refusal of a divorce. In section 643 of the civil code it is provided that “when the parties appear to be in equal wrong the court may in its discretion refuse to grant a divorce,” etc. It will be observed that the refusal of a divorce, when both parties are guilty of violating the marriage contract, is left to the discretion of the trial court. The right to set up one matrimonial offense in bar of another has long been recognized, and recrimination, as it is termed, has been regarded as a valid defense, even in the absence of a statute. It is no more than the application of the equitable rule that one who invokes thé aid of a court must come into it with a clear conscience and clean
“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 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.”
It is insisted, however, that there is not equality of wrong between the offense of adultery and the other wrongs for which a divorce may be granted. The statutes, however, do not provide that the wrong shall be of the same character or proportioned in moral gravity. Ten grounds for divorce are prescribed by the statute; and abandonment, when established, is just as effectual to dissolve the marriage relation as is the graver offense of adultery. Since the legislature has treated each ground as the equal of any other, and visited upon each offense the same legal consequences, the court cannot well distinguish between them because one offense may appear to us to involve more of turpitude or disgrace than another.
In the ecclesiastical courts it was held that there could be no recrimination unless the offenses were of the same character, and some of the courts have undertaken to measure the gravity of the specified causes for divorce, and have refused to allow a cause to be barred by any matrimonial offense other than adultery. (Chambers v. Chambers, 1 Hagg. Con. 489; Cocksedge v. Cocksedge, 1 Rob. Eccl. 90; Bast v. Bast, 82 Ill. 584; Stiles v. Stiles, 167 id. 576, 47 N. E. 867;
We cannot say that there was not such equality of wrong as the statute contemplates. The question was settled by the legislature, and the court in its discretion could, as it did, hold that the plaintiff, who had been guilty of extreme cruelty and gross neglect of duty, was in equal wrong with the defendant, who was guilty of adultery.
Complaint is made of the order giving to the mother the custody of the child. The plaintiff proposed, if given the custody of the child, to place her in the home of a relative in Missouri. He had no right to expect that the court would send the child out of the state and beyond its jurisdiction. The mother keeps the child at the home of her parents, and if she is not given care and attention proportionate to her age and necessities, or if the surroundings prove to be unsuitable for her proper attention and development, the court can again exercise its authority and transfer her
Other objections are made which are not deemed to be material, and as we find no error the orders and judgment are affirmed.
