Blankenship v. Blankenship

• Decision Date: 05 April 1929
• Docket Number: 2838.
• Citation: 276 P. 9,51 Nev. 356
• Parties: BLANKENSHIP v. BLANKENSHIP.
• Court: Nevada Supreme Court

276 P. 9

51 Nev. 356

BLANKENSHIP v. BLANKENSHIP.

No. 2838.

Supreme Court of Nevada

April 5, 1929

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

Action by R. E. L. Blankenship for divorce against Byrd C Blankenship. From decree and denial of motion for new trial defendant appeals. Reversed and remanded, with directions.

Brown & Belford, of Reno, for appellant.

Cooke & Stoddard, of Reno, for respondent.

DUCKER C.J.

This is an action for divorce. As the parties have been involved in former litigation with each other it will be more convenient to refer to them as husband and wife.

The husband's amended complaint charges extreme cruelty. Part of the facts charged as such are alleged to have occurred subsequent to May 9, 1927. In her answer the wife denies the acts of cruelty charged, and as an affirmative defense alleges extreme cruelty committed by the husband prior to May 9, 1927. In support of this defense she pleads two judgments rendered by the superior court of California in and for the county of San Diego. The first of these judgments was rendered by the California court on July 22, 1925, in an action brought by the wife against the husband for separate maintenance on the ground of extreme cruelty and adultery. In this action the husband was found guilty of extreme cruelty and the wife was granted separate maintenance. The second judgment was rendered May 9, 1927, in an action for divorce brought by the husband. In this latter action the wife filed a cross-bill for a divorce. The California court found both parties guilty of extreme cruelty and rendered judgment in which relief was denied to either party. The reply admitted all of the allegations in the answer concerning the judgments of the California courts.

In the instant trial the court found that the California judgments had been rendered as alleged in the answer, but that the wife had been guilty of acts committed since May 9, 1927 amounting to extreme cruelty, and granted the husband a decree of divorce. From this decree, and the order denying her motion for a new trial, the wife has appealed.

The only question to be determined is whether the extreme cruelty on the part of the husband alleged in the answer and proved on the trial operates as a bar to his being granted a decree. It must be conceded that the judgments of the California court pleaded and proved furnish conclusive proof of the fact that the husband had been guilty of extreme cruelty towards his wife prior to May 9, 1927, as alleged in her answer. The rule of recrimination is, in our opinion, applicable to the case and operates as a bar to a decree of divorce. The fact that the acts on account of which the court granted a divorce to the husband were found to have been committed by the wife since the adjudication by the California court does not make the rule inapplicable. Where each of the spouses has been guilty of misconduct which is cause for divorce, neither is entitled to this remedy. This rule is established by the decided weight of American authority. Conant v Conant, 10 Cal. 249, 70 Am. Dec. 717; Cushman v. Cushman, 194 Mass. 38, 79 N.E. 809; Green v. Green, 125 Md. 141, 93 A. 400, L. R. A. 1915E, 972, Ann. Cas. 1917A, 175; Church v. Church, 16 R. L. 667, 19 A. 244, 7 L. R. A. 385; Day v. Day, 71 Kan. 385, 80 P. 974, 6 Ann. Cas. 169; Kirn v. Kirn, 138 Va. 132, 120 S.E. 850; Morrison v. Morrison, 62 Mo.App. 299; Redington v. Redington, 2 Colo. App. 8, 29 P. 811; Smith v. Smith, 181 Ky. 55, 203 S.W. 884; Tillison v. Tillison, 63 Vt. 411, 22 A. 531; 2 Bishop on Marriage, Divorce, and Separation, §§ 337 to 409, inclusive. Tiffany on Domestic Relations (3d Ed.) § 109, p. 281. The rule rests upon the equitable principle that one who invokes the aid of a court must come into it with clean hands.

Relief by divorce has been granted by some courts to the party least in fault when both have shown grounds for divorce. This is called the doctrine of comparative rectitude. Counsel for respondent urge that this should be accepted as the true rule. By reason thereof he insists that the court had discretion to compare the faults of the parties and grant respondent a divorce notwithstanding the established cruelty of both. We cannot subscribe to this doctrine. As has been pertinently said, it is not a principle of the divorce law that if both are guilty the party who has sinned the least is entitled to a divorce.

Divorce is a remedy provided for an innocent party. A divorce...