De Burgh v. De Burgh

• Decision Date: 25 November 1952
• Citation: 39 Cal.2d 858,250 P.2d 598
• Court: California Supreme Court
• Parties: DE BURGH v. DE BURGH. L. A. 21986.

Page 598

250 P.2d 598

39 Cal.2d 858

DE BURGH v. DE BURGH.

L. A. 21986.

Supreme Court of California, In Bank.

Nov. 25, 1952.

Max Fink, Jerry Rolston, Cyrus Levinthal and Leon E. Kent, Los Angeles, for appellant.

Donald Armstrong, Torrance, for respondent.

TRAYNOR, Justice.

Plaintiff Daisy M. DeBurgh and defendant Albert Raymond Deburgh were married in California in October, 1946. They separated in February, 1949, and in the same year plaintiff brought this action for divorce on the ground of extreme cruelty. Defendant filed a cross-complaint for divorce, also on the ground of extreme cruelty. The allegations of cruelty were denied in the answers filed by each party. The trial court found 'that each of the parties to this action has been guilty of acts of cruelty towards the other, and that such acts of cruelty by each toward the other, were provoked by the acts of the other.' The court decided that 'each party has been guilty of recrimination and neither is entitled to a divorce from the other.' The court entered judgment that plaintiff take nothing by her complaint and that defendant take nothing by his cross-complaint. Plaintiff appeals 'from the judgment signed and entered by the court' and from the order denying her motion for a new trial. Since the latter order is nonappealable, the appeal therefrom must be dismissed.

The evidence regarding cruelty is in conflict; it supports the finding that each party has been cruel to the other. Plaintiff's evidence tended to show that defendant was frequently intoxicated to excess, that he inflicted physical injury upon plaintiff on several occasions, that he boasted of his relations with other women, that he unreasonably criticized plaintiff's daughter, that he unjustly berated plaintiff concerning a former suitor, and that, although he was a lavish spender in other ways, he was penurious with plaintiff. Defendant's evidence indicated that plaintiff had unjustly accused him of dishonesty and homosexuality and had communicated to his business associate similar false and malicious statements.

Since the trial court found that defendant was guilty of acts of cruelty towards plaintiff, it is clear that the judgment denying plaintiff a divorce is not on the ground that plaintiff failed to prove the allegations of cruelty in her complaint. The judgment thus must be based either on the finding that defendant's cruelty was provoked by plaintiff or on the ground that defendant established the defense of recrimination.

The finding that the cruelty of each party was provoked by the other party is inconsistent with the conclusion that recrimination was established. Cruelty that is provoked does not give rise to a cause of action. Truax v. Truax, 62 Cal.App.2d 441, 444, 145 P.2d 88; Popescu v. Popescu, 46 Cal.App.2d 44, 49, 115 P.2d 208. To establish recrimination, however, a cause of divorce must be shown. Civil Code, § 122; Mayo v. Mayo, 3 Cal.2d 51, 56, 43 P.2d 535; Smith v. Smith, 119 Cal. 183, 189-190, 48 P. 730, 51 P. 183; Haskill v. Haskill, 56 Cal.App.2d 204, 208, 132 P.2d 294. Provocation and recrimination, therefore, are not complementary, but mutually exclusive, defenses. To justify extreme cruelty by one spouse under the doctrine of provocation, the misconduct of the other spouse must itself be a serious violation of marital obligations. See Eidenmuller v. Eidenmuller, 37 Cal. 364, 364-365; Popescu v. Popescu, supra, 46 Cal.App.2d 44, 50, 115 P.2d 208. The record in the present case fails to disclose any such violation on plaintiff's part that would justify the physical brutality and other misconduct of defendant. Defendant's acts of cruelty, as set forth in plaintiff's evidence, took place from the date of marriage until the separation of the parties, whereas defendant freely conceded at the trial that his allegations of plaintiff's cruelty were based solely upon plaintiff's accusations that he was dishonest and a homosexual, charges that were made no earlier than two or three days before the separation. Thus, although the evidence would support the finding that defendant's cruelty provoked the false accusations made by plaintiff, there is no evidence of any earlier misconduct by plaintiff that would justify defendant's cruelty. Under these circumstances, the decision of the trial court cannot be supported upon the theory of provocation rather than recrimination.

The determinative question on this appeal, therefore, is whether the findings and conclusions in this case warrant application of the doctrine of recrimination. It is apparent from the remarks of the trial judge at the close of the trial that he believed that the transgressions of each party necessarily precluded the granting of a divorce to either. On the other hand, the language of section 122 of the Civil Code indicates that the trial court may have abused its discretion in disregarding the requirement therein that the cause of divorce of which one party is found guilty must be 'in bar' of that party's ground of divorce against the other party. To resolve this conflict, we have studied the history of the doctrine of recrimination, its objectives, and the wording and legislative background of the applicable statutes.

It has sometimes been assumed that any cause of divorce constitutes a recriminatory defense. The legislative language, however, is ill-adapted to such a broad purpose. Read together, Sections 111 and 122 of the Civil Code provide: 'Divorces must be denied upon * * * a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce.' Had the Legislature meant to make every cause of divorce an absolute defense, it could easily have provided that: 'Divorces must be denied upon * * * a showing by the defendant of any cause of divorce against the plaintiff.' We are bound to consider the additional requirement that such a cause of divorce must be 'in bar' of the plaintiff's cause of divorce.

Much of the confusion concerning recrimination in California has proceeded from the erroneous discussion of the subject in Conant v. Conant, 10 Cal. 249, which was decided before recrimination became a part of the statutory law. It was stated in that case that this defense is based on the doctrine that one who violates a contract containing mutual and dependent covenants cannot complain of its breach by the other party. Logically, such a theory would permit the party against whom the first marital offense was committed to ignore thereafter the duties imposed by the marriage 'contract,' for in contract law a material breach excuses further performance by the innocent party. Restatement of Contracts, § 274; Cal.Civ.Code, § 1689(2). In fact, however, the defense may be asserted without regard to whether the plaintiff or the defendant was the first at fault. Pullen v. Pullen & Holding, 123 L.T.R. 203, 36 T.L.R. 506.

The deceptive analogy to contract law ignores the basic fact that marriage is a great deal more than a contract. It can be terminated only with the consent of the state. In a divorce proceeding the court must consider not merely the rights and wrongs of the parties as in contract litigation, but the public interest in the institution of marriage. The family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage. But when a marriage has failed and the family has ceased to be a unit, the purposes of family life are no longer served and divorce will be permitted. '(P)ublic policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed.' Hill v. Hill, 23 Cal.2d 82, 93, 142 P.2d 417, 422; Weil v. Weil, 37 Cal.2d 770, 783-784, 236 P.2d 159; see also Saltzgaver v. Saltzgaver, 182 Md. 624, 636-637, 35 A.2d 810; opinion of Bickley, J., in Chavez v. Chavez, 39 N.M. 480, 489, 50 P.2d 264, 101 A.L.R. 635.

The chief vice of the rule enunciated in the Conant case is its failure to recognize that the considerations of policy that prompt the state to consent to a divorce when one spouse has been guilty of misconduct are often doubly present when both spouses have been guilty. The disruption of family relationships, the clandestine associations with third parties, and the oppressive effect upon children and the community are intensified. It is a degradation of marriage and a frustration of its purposes when the courts use it as a device for punishment.

Moreover, the historical discussion of the doctrine of recrimination in the Conant case is inacurate. The court relied mainly on the decisions of the eminent English ecclesiastical jurist, Lord Stowell. It is significant that in his later utterances Lord Stowell viewed with regret the illogical and pernicious consequences of a mechanical application of the doctrine. ¹ Even the medieval canon law, upon which Lord Stowell relied, did not carry recrimination to the extreme of the Conant case; although permitted as a bar when the plaintiff sought a divorce for adultery, this defense was not accepted against a cause of divorce based on cruelty, for the church lawyers realized that public policy was not served by forcing a wife, even if guilty, to return to a home where her life was in danger. Sanchez, De Sancto Matrimonii Sacramento, Lib. X, Disp. 18, No. 5, cited by Neuner, Modern Divorce Law, 28 Iowa L.Rev. 272, 279, n. 21. See also opinion of Lord Stowell in Chambers v. Chambers, 1 Hag. Con. 439, 452, 161 Eng.Rep. 610, 614.

In any event ecclesiastical authorities are not...