Rapp v. RappRapp v. Rapp
Thе testimony supports the finding of a master that the defendant, between the months of August and Decembеr, 1901, committed adultery with one Albert Searle.
The complainant swears, however, that he left his wifе in March, 1897, and has never lived with her since. He assigns as cause for leaving her that she drank and ran аround with other men and carried on so that he could not live with her. He seems never to have sоught her since he left her.
The facts, so barely stated by him, display a desertion by the husband, a separation from his wife without her consent for no proved cause, i. e., no cause for which he would be entitled to a divorpe.
So far as appears, therefore, the defendant, in March, 1889, had been deserted two years, and the adulterous 'acts proved against her were committed after March, 1899.
That the adultery of a complainant bаrs him or her from procuring a divorce against a defendant for the same cause is entirely settled. It seems equally clear that complainant’s adultery is also a bar against a divorce for defendant’s desertion. Reid
I am of the opinion that, as the testimony stands, the complainant is bаrred from asking for a divorce.
The doctrine of recrimination is discussed by Mr. Bishop in chapter 2, volume 2, of his work on Marriage and Divorce. In section 93 he lays clown the rule that any conduct for which the law provides thе same consequences, whether the conduct be of the same sort or not, will bar a suit for dissоlution of marriage. Inasmuch as desertion and adultery are under our statutes each a ground fоr divorce a vinculoi, they fall within this rule.
The reason for a bar is sometimes said to be that the complainant is in pari delicto and does not come into court with clean hands. In other cases the reason assigned is that it is a logical paradox to grant a divorce to two persons, each being entitled to a deсree against the other, and therefore the court will aid neither.
This question was stirred before Chief-Justice Beasley, sitting as master in Adams v. Adams, 17 N. J. Eq. (2 C. E. Gr.) 324. It was not necessary for him to decide in that case whether dеsertion by the complainant was a bar to her right to a divorce because of defendаnt’s adultery, since he found that the desertion had not existed for the statutory period. The view exрressed, however, respecting the efficacy of such a recriminatory plea, if prоven, was in favor of the defence.
The same question was before Chancellor Zabriskie in thе ease of Hedden v. Hedden, 21 N. J. Eq. (6 G. E. Gr.) 61, 76. The case was decided upon another ground, but the chancellor alludеd to the question with the remark that the courts of some states, with statutes like ours, had held that desertion was a sufficient bar to divorce for adultery.
In Reading v. Reading, Supp. Stew. Dig. 188, Vice-Chancellor Bird held that to a bill for divorce upon the ground of adultery an answer, setting up cruelty on the part of the complainant, wаs a good answer. This also seems to have been the view of Chief-Justice Beasley in Adams v. Adams, supra.
That a desertion which has existed during the period fixed by the stаtute as ground for an absolute divorce should be a bar against the deserter asking for a divorсe against the deserted party for a subsequent adulterous act seems manifest.
. A man who leаves his wife without his protection, subjected to the temptations which assail a deserted wife, has little cause for complaint if she unfortunately yields to the solicitations which her situation invites. Thе meagreness of the claim which such a man has upon the divorcing branch of the government is dеpicted by Lord Brougham in the matter of Simmons Divorce Bill, 12 Cl. & F. 339.
Admitting, therefore, that desertion would be a bar if pleaded, the question remains, should the court, of its own motion, take notice of a complainant’s conduct in an ex parte case? The rule is undoubtedly settled that recrimination is a counter charge which must bе pleaded with certainty.
Chancellor Zabriskie, in Jones v. Jones, 18 N. J. Eq. (3 C. F. Gr.) 33, held that the court could not lay hold on any matter not put in issue, and he distinguished between a recriminatory defence and a case where collusion apрeared.
This view of the chancellor’s is the subject of some suggestive remarks by Mr. Bishop in sectiоn 341 of the second volume of his Marriage and Divorce. Mr. Bishop doubts the applicability of the rule in all cases wherе it might appear upon the trial, although not pleaded, that the complainant is guilty of an аct which, if pleaded, would debar him from the divorce.
■ However that may be, it does not affect the present matter, for an exception to the rule, stated by Chancellor Zabriskie, is admitted by him, and'the exception is where the complainant, in putting in his ease, himself shows his own guilt.
This is what the complainant has done in the present case. The divorce must be refused.