214 P. 885 | Or. | 1924
Lead Opinion
Entering upon the trial of this canse de novo, we are confronted with the question as to the sufficiency of the proof to warrant the court in granting a divorce.
“5. Willful desertion for the period of one year;
“6. Cruel and inhuman treatment or personal indignities rendering life burdensome.” Or. L., § 507.
From the allegations contained in the counterclaim, facts are averred that tend to show desertion.
In this jurisdiction, it has been held by judicial decision that desertion is established by proof that the defendant has refused to have marital intercourse with the plaintiff: Sisemore v. Sisemore, 17 Or. 542 (21 Pac. 820); Baker v. Baker, 99 Or. 213 (195 Pac. 347).
There is a division in the decisions upon this question in other jurisdictions. Under what is perhaps the majority thereof, the refusal of intercourse by one of the parties to a marriage contract does not constitute desertion.
This court has followed the doctrine enunciated by Bishop, where that author wrote:
“Nothing injurious to the health can be required of either party in marriage. But if, from no consideration of health, and from no other good reason, either the husband or the wife permanently, totally, and irrevocably puts an end to what is lawful in marriage and unlawful in every other relation, — to what distinguishes marriage from every other relation, — this, by the better opinion, constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other, in the capacity of servant, of master, of brother, of sister, of parent, of child, or a friend, either for pay or as a gratuity.” 1 Bishop, Marriage, Divorce and Separation, § 1676.
“The general rule is that in the absence of proof that the health of the complaining spouse is either injured or threatened, the refusal of the other to cohabit is not legal cruelty.” 19 C. J. 56.
In Pinnebad v. Pinnebad, 134 G-a. 496 (68 S. E. 73), it was held that a wife’s refusal to have sexual intercourse with her husband is not legal cruelty and is not a ground for divorce. See, also, Platt v. Platt, 38 Pa. Super. Ct. 551.
However, there are cases to the contrary. See Campbell v. Campbell, 149 Mich. 147 (112 N. W. 481, 119 Am. St. Rep. 660), wherein the court held that a wife’s refusal to have sexual intercourse with her husband for a period of three years constitutes such extreme cruelty as warrants the granting of a divorce. This opinion is based upon former Michigan
In the case of Sevens v. Sevens, 107 Ill. App. 141, it was held that the refusal upon the part of the wife to cohabit with her husband except for a period of about six weeks after their marriage did not constitute extreme and repeated cruelty. See, also, Hexamer v. Hexamer, 42 Pa. Super. Ct. 226.
In Schoessow v. Schoessow, 83 Wis. 553 (53 N. W. 856), the court held that the refusal of a husband to have intercourse with his wife did not constitute “cruel and inhuman treatment,” particularly in the absence of any testimony tending to show mental or bodily injury resulting to the wife from the husband’s refusal. See Varner v. Varner, 35 Tex. Civ. App. 381 (80 S. W. 386).
A wife’s refusal of sexual intercourse does not constitute cruelty which will justify granting him a divorce: Holyoke v. Holyoke, 3 New Eng. Rep. 169, 78 Me. 404 (6 Atl. 827); Cowles v. Cowles, 112 Mass. 298; Gordon v. Gordon, 48 Pa. 226; Eshbach v. Eshbach, 23 Pa. 343.
Giving to the terms, “cruel,” “inhuman,” and “personal indignities, ” their true significance, as used in the statute cited above, we adopt the following as expressing our views:
“In what respect the refusal by the wife to allow the husband access to her bed can be termed crael * * I cannot conceive; nor, having a reference to the proper meaning of terms, can I see how such treatment will render his life burdensome * * .” McGill v. McGill, 3 Pittsb. R. (Pa.) 25.
“ ‘Tbe maxim that tbe decree must be secundum allegata, as well as secundum probata,’ says Chief Justice Marshall, in Schooner Hoppett v. The United States, 7 Cranch, 389 (3 L. Ed. 389), ‘is essential to the due administration of justice in all courts.’ * * This rule requires that a party must obtain his decree on the grounds stated in his pleading. # * ” Bender v. Bender, supra.
Again, the decree must be based upon, and be in accordance with, the facts alleged in the pleadings, and should be supported by the findings of fact: 14 Oyc. 713.
In the case of Senkler v. Berry, supra, it was said:
“It is now the settled law of this state, that in divorce proceedings the title to real property authorized to be awarded to the successful party by Section 511, B. & 0: Comp., is not transferred by force of the statute, but by force of the decree; that to enable the court to act judicially on the subject of property in such cases, and to make a decree that shall have the effect of divesting the title to real property out of one of the parties to the suit and transferring it to another, it must appear in the pleadings, not only that such party from whom it is proposed that the title shall be taken is the owner of the property, but also of what the property consists; and that, as the decree has the effect of transferring the title, it must be one of the muniments of the title and should identify the parcel or parcels intended to be transferred or affected thereby with as great certainty as is required in ordinary conveyances: Bamford v. Bamford, 4 Or.*284 30; Wetmore v. Wetmore, 5 Or. 469; Hall v. Hall, 9 Or. 452; Ross v. Ross, 21 Or. 9 (26 Pac. 1007).”
“The parties and their daughters live together in Dalles City, Wasco County, Oregon, at No. 320 East Second Street, in said city.”
Answering his wife’s charge of nonsupport, Mathias Schoren says, in effect, that his wife left his home “that he owns and maintains at 320 East Second Street, Dalles City, Oregon.” In his counterclaim for a divorce he again avers that he owns and maintains a home at 320 East Second Street, Dalles City, and that his wife, without cause, “left the defendant’s bed and board and moved to rooms on the second floor of their home.” The only purpose of the wife’s suit was to obtain support under the provisions of the act of the legislative assembly of 1889, entitled, “An Act to provide for the support of maried women,” and codified as Sections 9749-9752, inclusive, Or. L. Mathias Schoren’s intention, in referring to their home, was to show that she had abandoned him and the home he had provided for her. Neither party intended to, nor did either, bring the parcel of real property described in the decree into the case for judicial determination by any pleading, as measured by the rule announced by the authorities hereinbefore quoted. The- absence of necessary allegations to empower the court to decree a transfer of title is not supplied by the stipulation hereinbefore referred to, nor does the stipulation aid the description. It follows that the decree of the
As hereinbefore stated, the decree granting the divorce is likewise invalid.
For the reason that a dismissal of this proceeding would leave the controversy unsettled, the cause is remanded to the Circuit Court for such further action as the parties deem fit, not inconsistent with this opinion.
Neither party shall recover costs and disbursements in this court. Reversed and Remanded.
Rehearing
Affirmed on rehearing February 13, 1924.
On Rehearing.
(222 Pac. 1096.)
A rehearing was granted in this case upon the petition of plaintiff, in which it was vigorously contended that defendant is precluded from successfully prosecuting this appeal by controlling rules of practice recognized and applied by all courts, which rules, it is asserted, were not considered in the former decision herein (ante, p. 272, 214 Pac. 885).
In the petition for rehearing, and upon reargument of the case, counsel for plaintiff pointed out that the provisions of the decree awarding a divorce to defendant, granted the specific relief prayed for by defendant, and to obtain which he submitted evidence that satisfied the trial court that he was entitled thereto; also that the decree recites in substance that the provisions thereof, determining the respective rights of plaintiff and defendant in and to the personal property and real estate described in the decree and partitioning the same between the parties, were expressly consented to by defendant, and incorporated in the decree pursuant to an oral stipulation entered into by the parties in open court.
Referring to the provisions and recitals of the decree above mentioned, plaintiff contends that defendant is estopped to assert that the decree is erroneous, because: (1) The part thereof awarding a divorce is favorable to him and was rendered by the court at his request, and (2) The portion of the decree relating to property was given and entered by the court with the express agreement and consent of defendant.
In support of defendant’s asserted right of appeal herein, counsel for defendant claims that the agreement concerning property rights, evidenced by the stipulation relating thereto, was not a completed agreement and was not to become such an agreement until reduced to writing and signed by the parties, and that it was so understood between the parties at the time the same was dictated to the court reporter, and hence it is claimed by defendant that the Circuit Court erred in treating mere negotiations of the parties in their efforts to reach a settlement of their property rights, as a completed agreement, and incorporating the same in the decree. Counsel for defendant advances the further contention that the provisions of the decree relating to property are void, for the reason that they are outside the issues made by the pleadings.
In our former decision we held: (1) That the evidence submitted by defendant was insufficient to warrant the court in awarding him a decree of divorce against plaintiff, and (2) That the provisions of the decree partitioning real property between the parties
“Where a party procures the rendition or entry of a judgment, decree, or order, or is responsible for error therein, he is estopped to assert, on appeal or error, that it is erroneous. One who asks and obtains relief cannot appeal from the decree granting it because the effect thereof differs from his anticipations. ’ ’
In the case of McMahan v. McMahan, 142 Ind. 110 (40 N. E. 661), both. plaintiff and defendant sought a divorce. The plaintiff wife was awarded a divorce and a certain sum as alimony. Defendant objected to the amount of alimony allowed by the court, and endeavored to prevail upon the court to reduce the amount thereof, but without success. Thereafter defendant moved the court to substitute a new finding and decree in place of the one already made. Defendant wrote out a substitute finding and decree which he desired the court to enter, and embodied the same in his written motion therefor. The court allowed his motion and caused the proposed finding and decree to be entered of record precisely as appellant desired that it should be done. Defendant appealed from that decree. The court, in affirming the decree of the lower court, said:
*289 “The appellant is in no position to complain of the judgment entered on account of the facts found not being sufficient to warrant a divorce. * * A party who expressly asks that a designated ruling, finding or judgment be made or rendered, cannot avail himself of that ruling or action of the court, although it may be material and may be exhibited by the record. What a party expressly asks the court to do, when done, cannot be available as error, however erroneous such action may be without a violation of the plainest principles of the law. Elliott’s App. Proced., §§ 626-630, and authorities there cited.
“One cannot urge error in the proceedings leading to a judgment entered by consent. Weander v. Johnson, 42 Neb. 117 (60 N. W. 353).”
The principle involved in the rule of practice under discussion has been applied and enforced by this court in a number of cases: Wesco v. Kern, 36 Or. 433, 436 (59 Pac. 548); Woodburn v. Aplin, 64 Or. 610, 620 (131 Pac. 516); Cartwright v. Moffett, 69 Or. 368, 373 (136 Pac. 881, 138 Pac. 1076); Weygandt v. Battle, 88 Or. 310, 320 (171 Pac. 587).
Cartwright v. Moffett, supra, was a suit to set aside a deed made by plaintiff to her son, upon the ground that the son had fraudulently concealed from the grantor the full legal effect of the document. During the course of the trial, in answer to queries by the court, plaintiff stated that a decree sustaining the deed and declaring that defendant held the legal title to the property conveyed thereby, one half in his own right in fee simple and the other in trust for his brother, another son of plaintiff, all subject to the life estate of plaintiff, would be satisfactory to her. The court entered a decree in conformity to the consent of plaintiff thus given, from which plaintiff ap
“It may be, indeed, that the court technically erred in ingrafting upon the deed the conditions of the trust which had been agreed upon between the parties by parol, for it was within the scope of the pleadings and evidence to have dismissed the complaint. But the error, if any, is favorable to the plaintiff, and binds the other party because he has not appealed. * * It would be sacrificing substance to form for ns to decline to uphold the decree of the court.”
It is clearly apparent that the rule announced by the authorities above cited, applies to that portion of the decree appealed from, which awarded defendant a divorce, and prevents him from asserting on appeal that it is erroneous.
In Twitchell v. Risley, supra, Mr. Justice Slater, speaking for the court, said:
“The purpose of an appeal is to bring up for review an erroneous action of the trial court; but the trial court performs no judicial act when an order, decree, or judgment is entered by consent. No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court’s. 2 PI. & Pr. 99.”
The effect of a consent decree entered upon the oral stipulation of the parties, and which purports to dispose of matters in a case wherein the pleadings would not, if the matter were contested, authorize such a decree, was carefully considered in the case of Schmidt v. Oregon Gold Mining Co., supra, wherein the effect of a consent judgment or decree was clearly defined. In that case this court, following the decision in Rader v. Barr, supra, held that a judgment or decree rendered upon the oral stipulation of the parties in open court, constituted a consent judgment or decree and was equivalent to a judgment or decree given by confession, from which no appeal can be taken. Mr. Justice “Wolverton, speaking for the court, said:
“As a general proposition all provisions of a decree outside of the issues raised by the pleadings are void, but this cannot be predicated of a consent decree. * *
*292 “But a consent decree is not in a strict legal sense a ‘judicial sentence.7 ‘It is,7 says Mr. Gibson in Ms excellent treatise entitled Suits in Chancery, § 558, ‘in the nature of a solemn contract, and is, in effect, an admission by the parties that the decree is a just determination of their rights upon the real facts of the case, had such been proved. As a result, such a decree is so binding as to be absolutely conclusive upon the consenting parties, and it can neither be amended or in any way varied without a like consent, nor can it be reheard, appealed from, or reviewed upon a writ of error. The only way in which it can be attacked, or impeached, is by an original bill alleging fraud in securing the consent.7
“Mr. Beach, in his Modern Equity Practice, § 792, says: ‘Parties to a suit have the right to agree to anything they please in reference to the subject matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement, if it comes within the general scope of the case made by the pleadings.7 * *
“A judgment or decree entered upon the pleádings or after contest must fall within the issues raised by the pleadings, but a consent decree will be valid and binding upon the parties if its provisions fall within the general scope of the case made by the pleadings. This distinction is clear and incisive, and, it will be seen by the foregoing authorities, is recognized both by the text-writers and the courts.77
The parties, acting upon the advice and suggestion of the circuit judge, immediately commenced negotiation's for a settlement, and continued their efforts to reach a settlement until about noon of the following day. The negotiations were conducted in the court chambers by the attorneys for the respective parties. Plaintiff and defendant were so bitterly hostile to each other, that no progress could be made while both were present; but they remained in the courthouse, and were consulted from time to time by the attorneys representing them respectively. The circuit judge remained about the courtroom and his chambers all the time the efforts at settlement were in progress, and from time to time endeavored to, and did, promote the same by suggestions and advice. Finally an agreement was reached; the parties were called into the chambers of the court, and in the presence of the judge and the parties, the opposing attorneys together dictated to the court reporter a stipulation setting forth the agreement which had been reached, in the words following:
*294 “It is Hereby Stipulated by and between tbe parties hereto that regardless of the decree of the Court in reference to a divorce, that the property rights of the parties hereto shall be and are hereby settled in the following manner, to wit:
“The real estate situated on Third Street in Dalles City, Oregon, shall be divided into east and west halves and the defendant shall have the west half of the property, together with all personal property, of every kind owned or used by him in connection with his blacksmith business.
“The plaintiff and Geneva Schoren are to have the east half of said property, but the defendant shall have the rig’ht to use the building on the rear of the lot and known as the ‘Wagon Shop’ as now situated as long as he remains in business, or until such time as the plaintiff and Geneva Schoren, or their successors in interest, shall sell the east half of said property, or until said building shall have been destroyed, excepting only such portion of said building at the east end thereof as may be designated by the Court, which portion shall be occupied and used by the plaintiff and Geneva Schoren, or their successors in interest, and providing, however, the defendant shall construct a partition across said building upon the line designated by the Court separating the portion which the defendant is to use from the portion that the plaintiff and Geneva Schoren is to use.
“The plaintiff and Geneva Schoren are to have all personal property in or about the building on the east half of said premises, excepting only the articles mentioned in the list hereto attached and made a part hereof.
“It is further understood and agreed that the defendant and Helen Schoren may live in the dwelling house until the first day of April, 1921, but shall vacate on or before that date, and that during the time that they remain in the house they shall not in any way interfere with the plaintiff or Geneva Schoren, or any of the personal property belonging to them,.ex*295 cepting in so far as it máy be necessary for them to nse some portion of said personal property in connection with their occupancy of the house in proper manner and in the manner that it has heretofore been set out.
“The plaintiff shall assume and pay the mortgage upon said real estate amounting at this time to $1580.00, together with the interest thereon from and after the 17th day of January, 1921, and the defendant is to assume and pay all other indebtedness.
“It is Further Agreed that each party shall execute and deliver to the other a quitclaim deed for the other’s portion of the real estate.
“The plaintiff shall, within a reasonable time, and without delay, and at the time the deeds are exchanged, procure and deliver to the defendant, a release of his portion of the real estate from the mortgage above mentioned.”
Immediately following the dictation to the court reporter of the foregoing stipulation, the parties went to the premises described therein, and made the division of personal property provided for in paragraph 4 of the stipulation, listing the property so divided.
It was understood by the judge, the parties and their respective attorneys that in case a property settlement was effected by the parties, defendant would be granted a divorce, providing the evidence which he intended to offer, when submitted, satisfied the court that he was entitled to a divorce; and that any decree given would adjust the property rights of the parties in conformity to the terms of the property settlement agreed upon by them.
When court convened after the noon recess, February 9, 1921, and following the division of personal property above mentioned, the attorneys for the
At the conclusion of defendant’s testimony, the court declared the same sufficient to entitle defendant to a decree of divorce, and thereupon assented to the offer of one of the attorneys for plaintiff to prepare a draft of the findings, conclusions and decree and submit the same to the judge and to the attorney for defendant.
Thereupon, in the presence of defendant and his attorney and the attorneys for plaintiff, and with their acquiescence and consent, the court directed the court reporter to tear up and destroy the stenographic notes of the evidence introduced by plaintiff at the commencement of the hearing.
Owing to the occupation of the attorneys with other matters, and to the fact that the attorney for defendant resided in Hood River, it was not ascertained that the attorneys could not agree upon the form of the findings and decree until about April 1, 1921.
In the meantime defendant refrained from making payment of overdue installments of principal and interest upon the mortgage described in the stipulation and canceled insurance policies upon the dwelling-house awarded to plaintiff by the agreement expressed in the stipulation and collected return premiums, to which he was entitled, on account of such cancellation. Plaintiff arranged to place a new mortgage upon the part of the property awarded to her by the
Upon April 18, 1921, the cause came before the court upon the application of plaintiff, in which he requested the court to sign findings and a decree, a draft of which had been prepared by the attorneys for plaintiff and submitted to the court and the attorney for defendant. Defendant resisted plaintiff’s motion, and assigned as reasons for his objections: (1) That the stipulation above set out, which was embodied in the proposed findings and decree was not to be effective until reduced to writing, signed by the parties and filed in court; and (2) That the stipulation was not made in open court as declared in the proposed findings and recited in the decree, and hence had no binding force. It was not then, nor is it now, claimed that the stipulation failed to express the agreement as the same was understood by the parties at the time it was dictated.
The circuit judge, after carefully reviewing all the facts and incidents leading up to the dictation of the stipulation to the court reporter and the acts of the parties and their attorneys subsequent thereto, signed the findings and the decree as of February 9, 1921. The findings express the conclusions of the trial court as follows:
Finding No. IX. “That in open court prior to the taking of any testimony in reference to divorce, the parties made and entered into an oral stipulation and agreement settling property rights, which stipulation and agreement * * is as follows: (Stipulation set forth in full).”
“This cause having come on regularly for hearing upon the trial thereof in open Court on the 8th and 9th days of February, 1921, and the Court having heard the testimony in said cause and having on said date approved the stipulation and agreement of the parties in reference to settlement of their property rights made in open Court in the chambers of the Court, * * and the court being now fully advised, etc.”
There was nothing in the language of the stipulation nor in the conduct of the parties at the time the stipulation was dictated to the court reporter which indicated that it was not a completed agreement or that it was not to become effective until reduced to writing and approved and signed by the parties.
On the contrary, all the acts of the parties and everything that transpired at the time tends to establish the terms of the stipulation as an agreement entered into with the full consent and approval of both plaintiff and defendant; especially is this so in view of their hostile attitude towards each other. To all intents and purposes that stipulation was made in open court. The court was purposely kept open for the transaction of that very business; and until it was completed the judge of the court was actively engaged in its supervision. The record clearly establishes the contention of plaintiff that the decree from which defendant has attempted to appeal is a consent decree, from which no appeal can be taken.
It follows that our former decision herein was erroneous, and should be vacated and the opinion rendered in announcing the same recalled. It is so