2 Colo. App. 8 | Colo. Ct. App. | 1892
delivered the opinion of the court.
The legal rights and obligations of these parties are fixed by the facts which are contained in the record, and those which in this court must be taken to be established by the verdict of the juiy. They were married in 1874 at Danville, Illinois. They afterwards removed to Kansas which was their home until sometime in 1881, when, as the jury has declared by their verdict, Redington deserted his wife. Mrs. Redington brought this action of divorce against her husband, setting up three grounds; desertion, non-support, and adultery. Redington took issue on these allegations and filed a cross-bill asserting the adultery of his wife. The verdict expressly found the issues of desertion and non-support in the wife’s favor, but made no affirmative finding as to the matter of the adultery. As the law seems to be, this is wholly unimportant, so long as the fact exists. There was an express finding that Redington deserted his wife in 1881. The circumstances of this desertion need neither be stated nor considered. The finding will not be reviewed. It is based on proof fairly submitted to the consideration of the jury. It is so well supported by the evidence that this court, if called on to pass on the facts, would find the same way. The husband then may, for the purpose of applying the rules of law which are decisive of the rights of the parties, be held to have done what the statute says shall give rise to a cause of action for divorce. The decree must then follow the bill and proof unless there be in the record that which bars the wife’s recovery. The issue as to the wife’s adultery tendered by Redington and accepted by her was not disposed of ly any finding on the subject. Considering the course which
These preliminary statements of fact, and this conclusion concerning the statute, simplifies and narrows the investigation to the single question already stated.
Since the courts of this country first commenced to discuss this question they were hampered by what seemed to be an unavoidable necessity to rest their decisions upon the only precedents then available from the English tribunals. It occasioned this difficulty. The English courts until the recent Divorce Act only granted divorces a mensa et thoro, and did not accord to any other offense than that of adultery equal force for the purposes either of a bill or of a plea. The earlier American adjudications followed this line of reasoning, adopted those cases as authority for their decisions, and there are in the American Reports cases which adjudicate that neither cruelty, nor desertion, nor any other statutory ground, can be made the subject of a valid and successful recriminatory plea. They rest on no correct doctrine, and unless the conclusion be forced by some affirmative statute it should not be accepted. It is a rule recognized in all courts, and applicable to all' classes of actions, that every suitor who seeks redress at the hands of a court should come unfettered and unsullied by faults and wrongs of his own commission against the contending party. This principle has become aphorized in the law as “ clean hands.” It is plainly and palpably violated and infringed whenever a litigant who prays a divorce has been guilty of any act which under the statute would furnish the defendant a cause of action as against him. This alone ought to be sufficient to defeat the plaintiff’s right of recovery, for she was guilty of a great offense against the marital obligation before she filed her bill. It has never been sufficient even under the English authorities to respond that even though this be true, you first sinned and I may .therefore recover. The law left them where it found them. This conclusion finds strong support
Under the law as established by these authorities, on the coming in of the verdict establishing the desertion by the husband, the court being advised by the wife’s admission that she had been guilty of adultery, should have' dismissed both bill and cross-bill and left the parties bound by the tie which they had severally dishonored. Under these circumstances and with the pleadings and the suit in its present shape the court should make no decree concerning alimony. It is doubtless true that since the husband must remain obligated by his marriage contract he is bound to care for his children and to maintain and educate them. It is wholly unnecessary to determine what his duties may be with reference to his wife, since there is nothing in the proofs offered in the case which would enable the court to judge of the gravity of her temptation, nor how far the husband was responsible for her fault by reason of his conduct. This matter is designedly left wholly undetermined, since the issues and the proofs do not properly present the question.
Because of the error committed by the court in entering a judgment on the verdict in favor of the wife, the cause must be reversed and remanded with directions to the court below to dismiss both the bill and the cross-bill, with such order as to costs as to that court may seem proper.
Reversed.