Cooper v. Cooper

• Decision Date: 13 July 1868
• Court: Michigan Supreme Court
• Parties: Joel P. Cooper v. Marcia V. Cooper

17 Mich. 205

Joel P. Cooper v. Marcia V. Cooper

Supreme Court of Michigan

July 13, 1868

Heard July 8, 1868 [Syllabus Material] [Syllabus Material]

Appeal in chancery from Kalamazoo circuit.

The bill in this cause was filed by complainant to obtain a divorce from defendant on the ground of desertion.

The cause was heard on the pleadings and proofs, and a decree granted in favor of complainant.

The facts are stated in the opinion.

Decree of the court below, granting a divorce, reversed, and the bill dismissed, with costs of both courts.

Stuart Edwards & May, for complainant:

1. The bill in this case charges the defendant with desertion, and that only.

a. It is therefore insisted that the defendant can not charge the complainant with adultery occurring subsequent to the desertion, and where it in no way caused or tended to produce it.

It is no answer to the charge of desertion, and the statute does not contemplate, nor was it made to favor, this species of equitable set-off.

b. The statute permits recrimination for the same crime or misconduct; and hence by fair implication excludes every other crime or misconduct, expressio unius est exclusio alterius.

c. The powers of the court as to divorces, depend on the statutes of this state, and not on any law derived from England: Hopkins, 557; 3 Edw. Ch., 462.

A defendant can not resist a divorce for adultery by setting up the desertion of the complainant: 4 Porter (Ala.), 467; 12 Mo. 53; 4 Rawle 460; 14 Wend. 637.

2. But if not correct in this construction of the statute, it is well settled that the defendant must plead and clearly prove the charge. In other words, her proof must be sufficient to entitle her to a decree in case she were complainant: 4 Paige 432; 6 Mass. 276; 3 Barb. S. C., 236; Tyler on Inf. and Cov., § 689.

3. As regards condonement, the rule is, that where the party cohabits with the offender, after probable knowledge of the offense, he shall be presumed to have remitted it: Bishop on Mar. and Div., § 359.

This rule is nevertheless based upon the implied promise of the complainant that he would abstain from personal violence in the future.

4. The cruelty which entitles the injured party to a divorce, is conduct which endangers the life or health of the complainant, and renders cohabitation unsafe: 2 Paige 501; 2 J. J. Marsh, 322.

Balch, Smiley & Balch, for defendant.

1. The ill usage of the defendant by the complainant is a sufficient cause for her leaving him. It is always a defense to desertion when it constitutes cruelty or neglect, and it has been held to be by some when it did not amount to such legal cruelty as would constitute an affirmative cause of action: 1 Bishop on Mar. and Div., 791; 2 Danes Ab., 308; Reeve Dom. Rel., 207; 5 Ire. 674; 16 Md. 213, 219; 4 Rand. 662; 18 Tex. 528.

2. Such conduct by the husband as justifies the wife in leaving him is not only a defense to his action, but it constitutes desertion of the wife by him. There is no difference in law between leaving a wife to take care of herself, and making her life intolerable by cruelty and neglect, so that she can not live with her husband or in his presence: 1 Bish. on Mar. and Div., 569, 791, 792, 793, 794; 5 Ire. 674; Reeves Dom. Rel., 207; 18 Tex. 528.

3. The articles of separation constituted an acknowledgment by him of his improper conduct towards her, and of her right to a maintenance separate and apart from him. He was liable to support her, and made provisions for it: 1 Bishop 568, 578.

4. The evidence shows that his conduct towards her was the same after her return as before--swearing at her, calling her names, accusing her of unchastity, etc. This was sufficient to revive the original cause of cruelty, neglect and desertion; a less degree of cruelty being required to revive a former cause than to constitute original cruelty or desertion: 2 Bishop on Mar. and Div., § 58; 25 Vt. 678; 4 Barb. 217; 2 Greenl. on Ev., 53.

5. It seems the other party may set up acts as a bar to a suit that have been condoned, although the condonation might be a bar to a suit by the other party setting up the condoned acts. This is founded in the doctrine that the party complaining and asking relief must show himself blameless: 2 Bishop on Mar. and Div., 97; 1 Hag. Ec., 789, 797.

6. Slighter acts will bar than found an original suit: Astley v. Astley, 1 Hag. Ec., 714, 721.

7. The adultery proved also revives the acts of cruelty, desertion and neglect. It is not necessary that the reviving act should be of the same kind as the original act. If the original cruelty, desertion or neglect were ever condoned, the subsequent act of adultery revived it and made it available as a defense, or as a cause of action against the complainant: 2 Bishop on Mar. and Div., §§ 53 to 64; 4 Paige 460; 3 Hag. Ec., 618; 1 Hag. Ec., 733, 761.

8. Condonation is always conditional. It is conditioned not only that the same act, or same species of acts, shall not be repeated, but also that the condoning party shall be henceforth treated with conjugal kindness: 10 Paige 24; 1 Ed. Ch., 439; 14 Wend. 637; 1 Hag. 734; 3 Ed. Ch., 173; 7 Paige 60.

9. Condonation of cruelty is not easily inferred against the wife. It has been held in Massachusetts and Pennsylvania that the doctrine of condonation does not apply to cases of cruelty at all: 6 Mass. 69; 6 Barr. 449; 2 Bishop on Mar. and Div., 51 and 52.

10. The adultery constitutes a bar to the act of desertion. The question of whether one cause of divorce a vinculo matrimonii, would bar another of the same kind, though the acts be of a different nature, is answered in the affirmative by Mr. Bishop, in his work on marriage and divorce: 2 Bishop 93. And even when the defense set up is of a different grade, but sufficient to entitle the defendant to a divorce a mensa et thoro, he thinks it should be a bar.

Dissolution of the marriage has reference to a second marriage, and he who asks this privilege should have discharged properly the duties of the first: 2 Bish. 92, and note to § 94, 76; Wright, 286; Paige on Div., 240; 11 Ohio 233; Walk. Miss., 474; 29 Ga. 718; 1 Johns. Ch., 604; 2 Swab. and T., 467; 12 Mo. 53, 157; 9 Id. 539; 10 Cal. 249; 17 Abbott's Pr. Rep., 48.

11. Evidence of adultery is usually circumstantial. It need not be proved to have taken place at any particular time or place; general cohabitation is enough: 2 Bish. 613, 615; 2 Hag. Con., 1; 2 Hag. Con., 223.

OPINION

Campbell, J.:

Complainant filed his bill to obtain a divorce on the ground of desertion. Defendant is shown, beyond dispute, to have left him in a somewhat clandestine manner in May, 1861, and to have remained away from him ever since, and it does not appear that there was at that time any immediate provocation which would, of itself, have explained or justified such a departure in the case of a wife, without some further reason lying back of it. Unexplained, such a desertion would come within the statute.

But the defendant resists the divorce on two grounds; first because she claims they had previously separated for good cause, and that their reconciliation had been conditional, and the conduct of her husband justified her leaving; and, secondly, because he had...