275 P. 673 | Or. | 1929
This is a suit for a divorce; the complaint, filed by the husband, seeks the decree upon a charge of adultery. The answer, in addition to denying this accusation, alleges that the plaintiff deserted the defendant in April of 1921; it prays for a divorce. The Circuit Court dismissed the complaint and also the cross-complaint; the plaintiff appealed.
AFFIRMED. We are satisfied that the defendant's charge of desertion is well established; the plaintiff's accusation of adultery is apparently supported by substantial evidence. It may be well, therefore, at this point to determine what results follow if we should conclude that both charges are true.
In Carmichael v. Carmichael,
"It is a bar to any suit to dissolve a valid marriage, or to separate the parties from bed and board, that either before or after the complaint of delictum *625 transpired the plaintiff himself did what, whether of the like offending or any other, was cause for a divorce of either sort."
This court then added:
"This is for the obvious reason that the law forbids redress to the plaintiff who is in equal default with the defendant, and helps those who obey it, and not those who violate it."
When the court employed the words "equal default," obviously it was not referring to infractions of the moral code of equal gravity but had reference to the statutory law. In Hengen v.Hengen,
"* * On the principle that one who comes into a court of equity for relief must come with clean hands the following precedents may be read with profit in this connection: Taylor v. Taylor,
See, also, Wakefield v. Wakefield,
In Jenkins v. Jenkins,
"* * divorce is a remedy for the innocent and injured party only, and that it will not be allowed where it appears that the complainant, although otherwise entitled to a decree, has been guilty of acts that constitute a cause for divorce, is a principle taught by the decisions in this jurisdiction, as well as by court decisions elsewhere; and, in this circumstance, such misconduct on the part of the plaintiff may be set up by defendant in recrimination." *627
A further reason for rejecting the applicant who is in paridelicto with his guilty spouse "is that it is a logical paradox to grant a divorce to two persons, each being entitled to a decree against the other." Rapp v. Rapp,
"In some jurisdictions, either by force of precedent, or by statute, an offense committed by plaintiff in order to be effectual as a plea in recrimination must be of the same character as that relied on by him as a ground for divorce. The general rule, however, is that the offense pleaded in recrimination need not be of the same nature as the offense which defendant has committed, but any misconduct on the part of the complainant which constitutes ground for divorce bars his suit without reference to the nature of the offense of which he complains. 19 C.J., Divorce, § 222, p. 95. To the same effect, 9 R.C.L., Divorce and Sep., § 181, p. 388; Keezer, Marriage and Div. (2 ed.) § 427, and Schouled, Marriage, Divorce, etc. (6 ed.) § 1724. Thus our precedents without exception ally themselves with the trend of authority."
It would seem to follow as a necessary consequence that where the one seeks a divorce upon the charge of adultery the other may plead in bar desertion. Such is the general holding: Young v.Young,
Having in mind the fact that the plaintiff had deserted the defendant for more than one year before the alleged act of adultery occurred, we conclude that under the statutes and practice of this state the defendant's plea of desertion, when sustained by proof, operated as a bar to relief for the husband upon his charge of adultery.
We do not believe that the defendant, if guilty of adultery, is deserving of much more censure than the plaintiff. Upon their marriage the plaintiff brought his bride from her home in Philadelphia to a farm in Oregon; here, among strangers, she was compelled to find an abode in the home of the plaintiff's parents and family; being unable to endure the many unpleasantries which soon developed from this ill-chosen domestic establishment, she returned to Philadelphia a few months after her arrival in Oregon, where the child of plaintiff and defendant was born. All of this is developed at greater length in Thomsen v. Thomsen,
So far we have proceeded upon the hypothesis that the proof sustained both accusations. We shall now consider the defendant's charge against the plaintiff. From the conclusions expressed in Thomsen v. Thomsen, supra, it is clear that the plaintiff never provided a home for his wife, and that his unsatisfactory offer of one was prompted largely by a desire to prepare himself for a divorce suit. The evidence discloses that when the defendant bid her husband good-bye at the railroad station at Hood River, and returned to her parents' home, the old adage that absence makes the heart grow fonder found an exception in the plaintiff so far as his affection for his wife was concerned. His letters soon became quite formal, then he adopted the plan of preparing copies of them, evidently he was already looking *630
ahead to the divorce court; still later he sent as his epistles an occasional blank sheet of paper; next we find his letters bearing the highly dignified complimentary close "Respectfully your husband, Fred A. Thomsen," and finally came the complaint and summons in his first suit for a divorce. Before this court had reached that suit he instituted the present one. While it is true that a cause of suit for desertion cannot be created out of the time consumed by one spouse in suing the other for a divorce, Schouler Divorce, Separation, etc. (6 ed.), § 1620, Dillion v.Dillion, supra, yet we are satisfied that a sufficient period of time elapsed to constitute desertion, disregarding the time consumed by the litigation; and we are further satisfied, that it was the plaintiff and not the defendant who was the deserter. It is the husband's duty to furnish a home, wherein the wife is free from ill treatment and unwarranted interference from members of other households. When such a home is not provided, the wife is justified in leaving, and in so doing is not guilty of desertion, but may charge the husband with constructive desertion: Schouler Divorce, Separation, etc. (6 ed.), § 1644; Keezer, Marriage
Div. (2 ed.), § 334; 9 R.C.L., Div. Sep., § 152; Sisemore v.Sisemore,
Having made this disposition of the defendant's charge against the plaintiff, we deem it unnecessary to investigate the plaintiff's crimination of adultery against the defendant. A child was born as the result of the act of copulation, which the plaintiff declares was committed with a paramour, but which the *631 defendant says took place with the plaintiff under false assurances of a resumption of their conjugal relations. If the plaintiff's version is true, his desertion was not interrupted by this act of intercourse, and he cannot succeed in this suit under the authorities previously cited; if the defendant's testimony is true, the plaintiff is the father of this child, and his charge of adultery is not sustained. The defendant has not appealed; her conduct in the vicinity of the time of conception and in the days following the birth of the child, the fact that she referred at times to her alleged paramour as her husband, and at other times to him as the child's father, would render it impossible for us to grant her relief if she had appealed. Under these circumstances we adopt the Circuit Court's decree which dismissed both the complaint and the cross-complaint.
The defendant, by appropriate procedure, has moved for an allowance of attorneys' fees for appearing in this court. Under the authority of O'Brien v. O'Brien,
The decree of the Circuit Court is affirmed. Defendant may have her costs and disbursements in this court. AFFIRMED.
BELT, BEAN, and RAND, JJ., concur. *632