Carmichael v. Carmichael

• Decision Date: 09 January 1923
• Citation: 211 P. 916,106 Or. 198
• Parties: CARMICHAEL v. CARMICHAEL.
• Court: Oregon Supreme Court

211 P. 916

106 Or. 198

CARMICHAEL v. CARMICHAEL.

Supreme Court of Oregon

January 9, 1923

In Banc.

Appeal from Circuit Court, Umatilla County; H. H. Belt, Judge.

Suit by George B. Carmichael against Mabel E. Carmichael for divorce. A decree for plaintiff was vacated and the case heard upon its merits, and, from an order dismissing plaintiff's complaint, he appeals. Affirmed.

See also, 101 Or. 172, 199 P. 385.

The plaintiff seeks a divorce from his wife. She resists him. He grounds his cause of suit upon the charge of impotency. The parties hereto were married on April 30, 1912. On September 10, 1920, the plaintiff, through his then attorney, Homer I Watts, filed his complaint in the circuit court of the state of Oregon for Umatilla county, praying for a dissolution of his marriage relation with Mabel E. Carmichael. The complaint alleges that "the defendant, at the time of marriage to the plaintiff, * * * was impotent, barren and sterile, and has continued to remain so. * * *"

Two or three days previous to the commencement of this suit, it was agreed between the parties hereto that the plaintiff might file a petition for a divorce. A property settlement was had. Together they visited plaintiff's attorney and discussed the matter of the dissolution of the marriage status existing between them. For the purpose of securing testimony, they called upon the family physician in order to remove the seal of confidential relation. They remained together at the family residence until the 10th of September, 1920, when, in pursuance of their understanding with Watts, plaintiff's attorney, they went to Pendleton to file suit. On that date they went to the office of an attorney in Pendleton, who was retained by the defendant. On the same day, pursuant to their understanding, plaintiff filed his complaint in the circuit court. Service of process was made upon the defendant. She acknowledged due receipt thereof and instructed her attorney to appear in court and file a demurrer. It was the understanding between her husband and herself that the case should be heard upon the day of service. After retaining and instructing her attorney, she, with her husband, went to lunch. He then took her to the depot, purchased a ticket to Seattle, put her upon the train, and immediately thereafter went to the courthouse. The case was called. The demurrer which had been filed by defendant's attorney was withdrawn, with the announcement that the defendant did not wish to appear further. The testimony was then taken. In truth, the case was filed as per program, appearance made testimony adduced on the day the married couple came to Pendleton and before the speeding train had carried the wife from the confines of the state. She testified that plaintiff said, in effect, that a divorce would be granted within 15 minutes. The case, however, was taken under advisement, and not until September 23d thereafter was a decree rendered annulling the marriage. A copy of the decree was sent to the defendant in Seattle. Upon its receipt she wrote to plaintiff, wondering "what took Phelps (the circuit judge) so long. Are you satisfied now?"

As soon as the plaintiff procured a copy of the decree, he exhibited it to Elsie O'Hara, whom the trial judge found to be "the woman in the case" and the essential cause of the divorce.

As time went on, the defendant wrote a number of letters to plaintiff, begging for a reconciliation with him, and, in February, 1921, returned to the vicinity of the Carmichael home.

On the 7th day of March, 1921, defendant filed a motion for an order vacating the divorce decree. She also requested the court for leave to file an answer, which she tendered with her motion. Upon the hearing her motion was supported by her own affidavit, as well as by the affidavits of others, containing corroborative matter which tended to support her claim that she had been coerced to consent to the divorce proceedings and that she at all times was under the duress of the plaintiff in the matter of the divorce hearing. The record discloses a number of counter affidavits filed by the plaintiff.

On May 16, 1921, the defendant's motion for vacation of the decree was granted, and defendant was allowed to file her answer, which denied the charge of impotency preferred against her and alleged facts constituting a cause of divorce against the plaintiff not as a cross-bill, however, but which pleaded the matter in bar of the plaintiff's cause of suit. From the order vacating the decree and permitting the filing of the answer, the plaintiff appealed to this court. The appeal was dismissed for the reason that it was premature. See Carmichael v. Carmichael, 101 Or 172, 199 P. 385. Thereafter the case was heard upon its merits. The court found, among other things, as a fact, that the plaintiff had maintained toward the defendant--

"a course of cruel and inhuman treatment; * * * that defendant is a frail woman, and plaintiff is a large, robust man; that he * * * has cursed her and called her vile names; that the marital demands of the plaintiff have been excessive; * * * that as a part of said cruelty, the plaintiff sought to secure a divorce from defendant and to cast off the defendant that he might marry another woman, and sought to, and did, prevent the defendant from making an effectual defense in the said suit for divorce; that pursuant to plaintiff's design in this regard, he sent defendant out of the state of Oregon."

The court denied the plaintiff a divorce, and dismissed his complaint. This appeal is prosecuted from that order.

The rulings of the court assigned as erroneous involve (1) the meaning of the term "impotent," as used in the divorce statute, and the sufficiency of the proof thereof; (2) the right of the defendant to plead recrimination in bar to impotency; (3) the order of the court vacating the divorce decree.

James A. Fee, Jr., of Pendleton (Fee & Fee, of Pendleton, on the brief), for appellant.

Frederick W. Steiwer, of Pendleton (Raley, Raley & Steiwer and H. J. Warner, all of Pendleton, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

Did the court err in overruling plaintiff's motion as to the matter alleged in bar of his suit? Plaintiff charged impotency on the part of the defendant. The defendant, after denying this charge, pleaded in bar facts constituting cruel and inhuman treatment that, if proved, would afford her grounds for a divorce.

For the purpose of considering this demurrer, we must accept as true all facts well pleaded. By filing her plea in bar, the defendant has invoked the protection of the well-established principle of recrimination. The doctrine of recrimination is an application of the wholesome maxim in equity that he who comes into equity must come with clean hands. Am. & Eng. Encyc. of Law (2d Ed.) 817.

"It is a general principle, applicable to all divorce proceedings, that the spouse petitioning for relief must have been both clear of blame and consistent in availing himself or herself of the other's matrimonial delinquency. By 'clear of blame' we may mean (1) without substantial fault in causing the offense complained of, and, furthermore, (2) free from other misconduct equally reprehensible under the divorce laws. For if both parties have the same right to divorce, the rule is that neither has, since only an innocent spouse may properly ask the court to interpose." 2 Schouler, Marriage, Divorce, Separation (6th Ed.) § 1701.

It was said in Tillison v. Tillison, 63 Vt. 411, 22 A. 531:

"He who has violated his marriage vow should be deprived of his remedy of divorce."

That 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.

In the case of Earle v. Earle, 43 Or. 293, 72 P. 976, this court held that misconduct upon the part of the plaintiff was a defense to her suit for the dissolution of the marriage relation with her husband. In that case the defense was not even pleaded, but was brought out on cross-examination by the district attorney. The court adopted the following doctrine from an eminent textwriter in his work on Marriage and Divorce:

" 'It is,' says Mr. Bishop, '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 transpired the plaintiff himself did what, whether of the like offending or any other, was cause for a divorce of either sort.' 2 Bishop, Marriage, Div. and Sep., § 365."

In the case of Wheeler v. Wheeler, 18 Or. 261, 24 P. 900, it was held that where the party asking for a divorce is liable to a charge which is a cause for divorce, it will prevent him from obtaining such divorce, notwithstanding the wife may have misconducted herself.

In the case of Hawley v. Hawley, 101 Or. 649, 199 P. 589, we said:

"In their acts of crimination and recrimination, the parties hereto have overlooked the principle that a divorce is a remedy for the innocent against the guilty, and not a relief for wrong against wrong. In Crim v. Crim, 66 Or. 258, 134 P. 13, Mr. Justice Moore said: 'The plaintiff in a suit for divorce is not entitled to relief unless the evidence shows that she has been free from fault.' Again, this court holds * * * 'equity relieves the injured party, but not the vanquished.' Beckley v. Beckley, 23 Or. 226, 231, 31 P. 470. In Hengen v. Hengen, 85 Or. 155, 162, 163,

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