120 Wash. 411 | Wash. | 1922
— The plaintiff, Henry J. Pierce, seeks a decree of divorce dissolving the bonds of matrimony existing between him and the defendant, Violetta E. Pierce. He commenced the present action in that behalf in the superior court for King county in June, 1921, following the going into effect of ch. 109 of the Laws of 1921, p. 331, amending our statute prescribing the causes for divorce. He claims the right to a decree of divorce from the defendant upon the sole ground that they have lived separate and apart for a period of more than five consecutive years immediately preceding the commencement of this action. While by his complaint he seems to allege in effect that such living separate and apart from each other is the result of their mutual consent, his counsel has, throughout the progress of the case, both in the superior court and in this court, proceeded upon the theory that he is entitled to a decree of divorce regardless of the cause or fault of their living separate and apart for the period of more than five years. The defendant, while admitting they have lived separate and apart for more than five years, resists the granting of a divorce, upon the ground that their separation has at all times been, and now is, wholly the result of the plaintiff’s own election and fault, and against her will and consent. A trial in the superior court resulted in a decree awarding the plaintiff a divorce as prayed for; from which the defendant has appealed to this court.
There was tendered in behalf of the defendant, upon the trial in the superior court, evidence which we regard as conclusively showing that the living of these parties separate and apart has at all times been against the will and consent of the defendant, and without fault on her part, and wholly the result of the election and fault of the plaintiff. While this evidence was
The arguments of counsel for the respective parties are addressed wholly to the question of whether or not the plaintiff is entitled to a decree of divorce as prayed for upon the sole ground that he and the de
By ch. 109, p. 331, § 1, of the Laws of 1921, the section of o‘ur divorce statute prescribing causes for divorce was amended to read as follows:
“Be it enacted by the Legislature of the State of Washington:
“Section 1. That Section 982 of Remington & Ballinger’s Annotated Codes and Statutes of Washington (being Sec. 7501 of Pierce’s Washington Code), be amended to read as follows:
“Section 982. Divorces may be granted by the superior court on application of the party injured, for the following causes :
“1. When the consent to the marriage of the party applying for the divorce was obtained by force or fraud, and there has been no subsequent voluntary co-habitation.
“2. For adultery on the part of the wife or of the husband, when unforgiven, and the application is made within one year after it shall have come to the knowledge of the party applying for a divorce.
“3. Impotency.
“4. Abandonment for one year.
“5. Cruel treatment of either party by the other, or personal indignities rendering life burdensome.
*415 “6. Habitual drunkenness of either party, or the neglect or refusal of the husband to make suitable provisions for his family.
“7. The imprisonment of either party in a state penal institution if complaint is filed during the term of such imprisonment.
“8. A divorce may be granted to either or both of the parties in all cases where they have heretofore lived or shall hereafter live separate and apart for a period of five consecutive years or more. In all such eases, the divorce may be granted on the application of either husband or wife, and either husband or wife shall be considered the injured party and the period of five years or more shall be computed from the time the separation took place.
“9. In case of incurable, chronic mania or dementia of either spouse having existed for five years or more, while under confinement by order of a court of record, the court may, in its discretion, grant a divorce.” Bern. Comp. Stat., § 982.
The contention here made in behalf of the plaintiff is that subdivision 8, above quoted, is to be read entirely apart from all other provisions of the section, since it is complete within itself when so read; though all of the preceding seven subdivisions are not complete within themselves, and can only be given complete sense by reading each of them with the introductory sentence of the section providing that “Divorces may be granted by the superior court on application of the party injured, for the following causes: . . .” It is apparent that one of the “following causes” is that specified in subd. 8, in so far as its setting in the section is concerned; and that it must be read in connection with the “party injured” introductory sentence, unless it is so plainly separable therefrom as to call for its reading and interpretation entirely apart.
Viewed superficially, this argument may seem somewhat persuasive; but what, it may be well asked, did
The construction of subd. 8 contended for by counsel for the plaintiff, it is plain, we think, would lead to this result: A husband could, without any cause other than his own vicious will, forcibly drive his faithful and devoted wife from their home, exclude her therefrom and refuse to live with her for a period of five years; and then obtain a divorce from her solely because of such separation created by his own wrong. Or he could commit one or more of the number of conceivable acts grossly violative of his legal and moral marital duties, such as would effect the separation of his wife from him for a period of five years or more, wholly without her fault or consent; and at the end of such period of separation invoke the bare fact of separation, and the law as it is here sought to be construed by counsel for the plaintiff, as an absolute and unqualified cause for the granting to him of a divorce.
The passage of a statute in such language as to compel the courts to adopt such a construction or interpretation of it, leading to such results, would be a radical departure from the policy of our state expressed in its divorce statutes since the beginning of territorial days, when in 1854 it was first enacted as the introductory sentence of this same section — which has never been changed except by amendment — that “divorces may be granted by the district court (superior court), on application of the party injured, for the following causes;” (Laws of 1854-5-6, p. 405) all causes for divorce being in that act specified in seven subdivisions following such introductory sentence, in substance the same as the seven subdivisions preceding the eighth subdivision embodied in the amendment of 1921 (ch.
The passage of such a statute, expressing a legislative intent such as is here contended for by counsel for the plaintiff, would also be a radical departure from what may be called the common law of divorce; that is, those principles of the unwritten law of divorce supplemental to the statute law, universally recognized by the courts of this country as of controlling force, when applicable, except when plainly modified or abrogated by statute. Under the head of “Recrimination,” in vol. II of Bishop on Marriage, Divorce and Separation, at §§ 344 and 346, that learned author makes these observations:
“A view adequate for our present elucidations is that, extending through our entire law, yet variously modified according to the particular issue, there is a rule which forbids redress to one for an injury done him by another, if himself in the wrong about the same thing whereof he complains. And it will not avail the plaintiff that he is less in fault than the defendant ; he must come into court, as the expression is, with clean hands. . . .
“The doctrine which is thus seen to extend through the entire field of our jurisprudence prevails therefore in the divorce law. If in the former it is a little variable and in some respects its exact form and proportions are uncertain, so in the latter there are or have been judicial doubts and conflicts concerning it, and some differences created by legislation. But in a general way the doctrine is everywhere recognized.”
Onr present problem may not be one of recrimination in the strict sense of that term, but manifestly the observations above quoted from Bishop are as applicable here as if our problem were one of recrimination in a strict sense. Indeed, if a husband or wife, applicant for a divorce, will not be awarded a divorce because of his or her own wrong, even though the other has committed a marital wrong which of itself would call for the granting of a divorce as against the applicant, much less we think would such applicant be entitled to a divorce when the other spouse has been entirely without marital fault, as the defendant in the present case has been. These views of the law of divorce, speaking generally, find support in our own decisions in the following cases: McDougall v. McDougall, 5 Wash. 802, 32 Pac. 749; Colvin v. Colvin, 15 Wash. 490, 46 Pac. 1029; Stanley v. Stanley, 24 Wash. 460, 64 Pac. 732; Bickford v. Bickford, 57 Wash. 639, 107 Pac. 837; Pierce v. Pierce (these parties), 68 Wash. 415, 123 Pac. 598; Maloney v. Maloney, 83 Wash. 656, 145 Pac. 631; Pierce v. Pierce (these parties), 107 Wash. 125, 181 Pac. 24; McMillan v. McMillan, 113 Wash. 250, 193 Pac. 673. A critical reading of these decisions, we think, will not fail to leave in the reader’s mind the conviction that this court has regarded the introductory provision of our divorce statute — that “Divorces may be granted by the superior court on application of the party injured, for the following causes” — as merely declaratory of what, as we have already seen, is the common or unwritten law of divorce, and that, had the introductory words of the statute been simply, “Divorces may be granted for the following causes,” our holdings would
We have, then, as we view the conditions -of our present problem, these weighty considerations to be kept in mind and applied in our present effort to ascertain the legislative intent expressed by the language of subd. 8 above quoted: (1) the embodying of that subdivision, as a cause for divorce, in a section of the statute together with all the other enumerated causes for divorce, following the introductory sentence of the section which evidences a legislative intent that divorces shall be granted only to an injured party, manifestly excluding injury resulting to a party from his or her own fault; and the embodying in the subdivision of the words “either husband or wife shall be considered the injured party . . -.” (2) the fixed and unvarying legislative policy of this state from the beginning of our territorial government, covering a period of nearly seventy years, of adhering to the “injured party” principle, declaratory, as we think, of the common or unwritten law of divorce; and (3) the extraordinary result of allowing an applicant for divorce to take advantage of his own wrong and fault in creating the very condition upon which he might rest and claim his right to a divorce, if subd. 8 means as is here contended for by counsel for the plaintiff. Conceding for the present that the legislature has power to specify such a cause for divorce, surely, in the light of these considerations, no court should hold that the legislature has done so unless its
The statutes of several states and decisions of the courts construing them have been called to our attention; none of which, however, we regard as of controlling force in our present inquiry; this by reason of the difference in these statutes from our own. The state of Louisiana has a statute reading as follows:
“That when married persons have been living separate and apart for a period of seven years or more, either party to the marriage contract may sue, in the courts of the state of his or her residence, provided such residence shall have been continuous for the period of seven years, for an absolute divorce, which shall be granted on proof of the continuous living separate and apart of the spouses, during said period of seven years or more.” (Act No. 269 of 1916, p. 557.)
Under this statute, as held by the supreme court of that state, separation for the time and under the conditions prescribed is an absolute and unconditional cause for divorce, excluding all inquiry into the question of which party is injured or in fault. Hava v. Chavigny, 143 La. 365, 78 South. 594; Goudeau v. Goudeau, 146 La. 742, 84 South. 39. That statute, however, it will be noticed, is entirely complete within itself, and does not have a setting as one of several enumerated paragraphs preceded by a common introductory sentence expressing the “injured party” thought; nor does it in the slightest degree suggest the “injured party” thought, as does our statute. The state of North Carolina had a statute of similar import to that of the Louisiana statute, which by a bare majority opinion of the supreme court of that state was held to create an absolute and unconditional cause for divorce at the suit of either party, irrespective of
The state of Kentucky has a statute in which is specified as a cause for divorce, “living apart without any cohabitation for five consecutive years next before the application.” (Ky. Stat. [Carroll], §2117.) This statute seems to prescribe an absolute unqualified cause for divorce. The decisions of the supreme court of that state construing this statute in other respects furnish us but little light in our present inquiry, though there are observations made in the decisions of that court which seem to suggest that the courts, even under that statute, should not lose sight of the question of fault or injury of or to the respective parties. Hale v. Hale, 137 Ky. 831, 127 S. W. 475; Brown v. Brown, 172 Ky. 754, 189 S. W. 921. The state of Wisconsin has a statute which seems to make voluntary separation of a husband and wife for a period of five years cause for divorce. Sanders v. Sanders, 135 Wis. 613, 116 N. W. 176. That statute and its construction by the Wisconsin court, however, do not furnish us any aid in our present inquiry.
The state of Bhode Island has a statute which permits the granting of a divorce in the discretion of the
We note, among others, some decisions of the courts dealing with claims of right which if upheld would result in the claimant profiting by his own wrong. In Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 12 Am. St. 819, 5 L. R. A. 340, the court of appeals held that the statute of New York relating to the distribution of estates will not be construed so as to secure the benefit of a will to a legatee who killed the testator in order to prevent a revocation of the will; this upon the theory that the legatee could not so take advantage of and profit by his own wrong, though the law seemed to give him the absolute right he sought to enforce. In Perry v. Strawbridge, 209 Mo. 621, 108 S. W. 641, 123 Am. St. 510, 16 L. R. A. (N. S.) 244, it was held that a
Some contention is made in behalf of the plaintiff that subd. 8, as found in the amendatory act of 1921, § 1, p. 331, was so enacted at that time for the purpose of obviating the effect of our decision in the case of Pierce v. Pierce (these same parties), 107 Wash. 125, 181 Pac. 24, wherein we held that subd. 8, first enacted by ch. 106 of the Laws of Í917, p. 353, providing that,
. “Where the parties are estranged and have lived separate and apart for eight years or more and the court shall be satisfied that the parties can no longer live together, ’ ’
must be read in connection with the introductory sentence of the section. The argument seems to be that the legislature, having in mind our decision in that case, must have intended to make the separation of husband and wife for the period of five years or more an absolute, unconditional cause for divorce; but again we say, if that was the legislative intent, why merely amend the section prescribing the causes for divorce by inserting subd. 8, (Laws of 1921, § 1, p. 331), as amended in the same section, as one of the
It seems to us that, all things considered, the language of subd. 8, of ch. 109 of the Laws of 1921, 4 1, p. 331, was intended only to effect a change in the prior law in two particulars: (1) The law was changed so as to become retroactive, in that the period of separation “shall be computed from the time the separation took place;” it having been held by us in Pierce v. Pierce, 107 Wash. 125,181 Pac. 24, that the 1917 act was prospective only in its operation in this respect. (2) The law was changed in that it created what we deem to be nothing more nor less than a rule of prima facie proof, to wit, that an applicant for divorce, pleading and showing that there has been a separation and living apart for a period of more than five years, shall prima facie be presumed to be the injured party and be entitled to a decree of divorce. In other words, when the applicant has proceeded thus far, he or she has made out a case which, in the absence of other proof, entitles him or her to a divorce as a matter of right. But that, to our minds, does not argue that such proof becomes conclusive upon the question of who is “the injured party” in the sense of precluding the opposing party from showing by proper evidence who is in fact “the injured party.” We cannot escape the conclusion that the legislature never intended, .in the use of the language of subd. 8, of ch. 109 of the Laws of 1921, § 1, p. 331-, above quoted, that an appli
The decree awarding a divorce to the plaintiff is reversed.
Mackintosh, Tolman, Mitchell, Holcomb, Hovey, and Bridges, JJ., concur.