Birdzell v. Birdzell

• Decision Date: 10 April 1885
• Citation: 33 Kan. 433,6 P. 561
• Parties: C. J. BIRDZELL v. MARGARET BIRDZELL, by John Tucker, her Guardian
• Court: Kansas Supreme Court

6 P. 561

33 Kan. 433

C. J. BIRDZELL v. MARGARET BIRDZELL, by John Tucker, her Guardian

Supreme Court of Kansas

April 10, 1885

Error from Sedgwick District Court.

ACTION for divorce, brought by Margaret Birdzell against Caleb J Birdzell. Trial at the October Term, 1883, when the court refused to grant the divorce, but granted $ 5,000 as alimony and decreed that the same should be a lien upon the homestead of the plaintiff and the defendant, and that it should be sold to satisfy the judgment. The defendant brings the case to this court. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

E Hill, and Rossington, Johnston & Smith, for plaintiff in error.

W. P. Campbell, for defendant in error.

VALENTINE J. HORTON, C. J., concurring. JOHNSTON, J., not sitting.

OPINION

VALENTINE, J.:

This was an action brought by John Tucker, in the name of "Margaret Birdzell, by John Tucker, her guardian," against Caleb J. Birdzell, to obtain a divorce on the part of Margaret Birdzell, an insane woman, from her husband, Caleb J. Birdzell, and for alimony. The case was tried before the court, without a jury, and the court refused to grant the divorce for the reason that it deemed itself powerless to grant a divorce to an insane person, but granted the alimony for the gross amount of $ 5,000, and decreed that the same should be a lien upon the homestead of the plaintiff and the defendant. The court also decreed that the homestead should be sold to satisfy the judgment for alimony, and that a general execution might afterward be issued against the property generally of the defendant to satisfy any remainder that might still be due upon the judgment; and decreed that said allowance of $ 5,000 should be in full of all claims that might ever be made by the plaintiff upon the defendant or upon his estate. After this judgment was rendered, and after a motion for a new trial was made and overruled, the defendant, as plaintiff in error, brought the case to this court, and he now asks for a reversal of such judgment.

Several questions are presented to this court, but we think a decision of the first and principal question in the case will render it unnecessary to consider or decide any of the other questions raised. Such first and principal question is, whether an action for divorce and alimony, or for alimony alone, can be brought and maintained by the guardian of an insane woman. It seems to be almost admitted by counsel for the defendant in error, plaintiff below, that the action for divorce cannot be maintained; but such counsel still insists that an action for alimony can be maintained. It seems, however, clear to us that both actions must be placed in the same category. We shall consider the question with reference to divorce first.

Marriage is a personal status and relation assumed for the joint lives of the parties, and can never be created or brought into existence except with the free and voluntary consent of the parties assuming the same, and it can never be dissolved or destroyed while both parties are living, so as to affect an innocent party thereto, except for a grievous and essential wrong committed against such relation by the other party, and with the free and voluntary consent, and indeed with the active and affirmative volition, of the wronged and innocent party. In other words, the marriage status and relation of an insane person, who has given no cause for a divorce, cannot be dissolved or abrogated at all, for it cannot be dissolved or abrogated except with the voluntary consent of such insane person, and such insane person is incapable of giving any consent to such a dissolution or abrogation. How could a guardian conduct the mind of his insane ward through the ceremony that would make him or her a husband or wife, or how could he conduct such mind through a litigation that would undo the marriage relation? Marriage might be ever so beneficial to the ward, financially or otherwise, but as it depends upon the intelligent volition of the party to be married, the guardian could not effect it; or if it existed, he could not inaugurate and conduct a proceeding that would destroy it. There are no wrongs that may be committed by a husband or wife sufficient in and of themselves to work a dissolution of the marital ties. The injured party may be willing to condone the wrong, or, for reasons satisfactory to himself or herself, may desire to continue the marriage relation, notwithstanding the wrong. In the present case, some of the wrongs charged against the defendant existed prior to the insanity of the plaintiff. Can the guardian say that she did not condone them? Many persons sons believe that marriage is a sacrament, and that to procure a divorce upon any of the ordinary grounds for which divorces are usually granted is a violation of all true religion and morality. Should such a person be divorced, though innocent himself or herself, without his or her consent? And could a guardian for such a person, if he or she should become insane, give the necessary and required consent? Besides, insanity is often temporary; and what if such insane person should become restored to sanity immediately after the divorce, and should disapprove...