Chavez v. Chavez
Decision Date | 09 October 1935 |
Docket Number | No. 4023.,4023. |
Citation | 39 N.M. 480,50 P.2d 264 |
Parties | CHAVEZv.CHAVEZ. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dona Ana County; Frenger, Judge.
Suit by Margarita Medina De Chavez against Francisco Chavez. Decree for plaintiff, and defendant appeals.
Reversed and remanded for a new trial.
In suit for divorce, defendant's allegation that plaintiff was living with unmarried man held to sufficiently apprise plaintiff of defendant's intention to prove adultery on part of plaintiff.
J. H. Paxton, of Las Cruces, for appellant.
Thomas B. Rapkoch, of Las Cruces, for appellee.
Plaintiff (appellee) brought suit for divorce alleging desertion and nonsupport. Plaintiff prayed for suit money, alimony, and a division of the community property. Defendant (appellant) answered, denying desertion, alleging that he has been ready and willing to support and live with the plaintiff, countercharging plaintiff with desertion and affirmatively charging plaintiff with “living with one Reuben Garcia, an unmarried man.” Defendant denied that there was any community property. Plaintiff in her reply denied the allegations of defendant's affirmative defense. Plaintiff charged that defendant deserted her on July 22, 1933. Defendant charged that plaintiff deserted him on July 25, 1933.
The case was tried on February 10, 1934. The court found the major issue of abandonment in favor of plaintiff. The court also found that there was no community property, but that the separate estate of defendant amounted to $8,600.
The court found that plaintiff is twenty-four years of age, and that the defendant is between seventy and eighty years of age, “decrepit and in his dotage.” The plaintiff had requested an award of $4,300 as permanent alimony, to be paid by the defendant out of his separate estate. This was denied. The court refused to find that the plaintiff was unfaithful to the defendant with one Reuben Garcia.
The district court entered its decree, awarding plaintiff an absolute divorce, ordering the defendant to pay plaintiff $30 per month as alimony. From this decree, the defendant prosecutes this appeal. The plaintiff files a cross-appeal from the $30 per month alimony award, contending she should have a lump sum award of $4,300.
It is contended by defendant that the allegation in his answer to the effect that the plaintiff, ever since her separation from him, “has continually since lived and is still now living with one Reuben Garcia, an unmarried man,” is, when proved, a bar to plaintiff's suit for divorce, on the theory of recrimination. Defendant contends that the charge and proof conclusively show adultery on the part of plaintiff.
The defendant placed on the witness stand Consuela Ramos, a thirteen year old girl, who testified that one morning between the hour of 7 and 8 she found plaintiff and Reuben Garcia lying together on a cot covered up. She could not testify as to the state of their dress. This transpired subsequent to the separation of plaintiff and defendant. This was denied by plaintiff. The defendant had other witnesses testifying as to familiarities between plaintiff and Reuben Garcia.
It was the province of the court to believe or disbelieve the witnesses testifying before him. He could have accepted the testimony of plaintiff, and rejected that of Consuela Ramos. If we could assume that the trial court's refusal to find that the plaintiff was unfaithful to the defendant with Reuben Garcia, as requested by defendant, was based on the evidence of the plaintiff, which the court believed, and disbelieved the testimony of the witnesses for the defendant, we would be content. However, we are confronted with a more difficult problem.
Plaintiff objected to the introduction of any testimony relating to her alleged actions with Reuben Garcia. The court, though considering the evidence admissible within the pleadings, did not consider it material. The court permitted the evidence to go in, and refused to sustain a motion to strike, but stated: “I don't see the materiality of it-this all happened after the separation.”
Apparently the court was under the impression that adultery, if adultery of plaintiff was proven, and which we are not called on to decide, may not be set up as a recriminatory defense, after the desertion or separation, by the deserting spouse. In this the court erred.
[1] Adultery is generally available as a recriminatory charge in all cases. 9 R. C. L. 390. It may be set up as a recriminatory defense by the deserting spouse. The rule is founded upon the equitable theory that whoever appeals to a court for relief must do so with clean hands and with an apparently clear conscience, and one who has committed adultery, though deserted by her lawful spouse, has not a clear conscience and cannot seek the favor of the court.
We quote from a number of decisions, where this question has been considered, and which are applicable here.
’ Green v. Green, 125 Md. 141, 93 A. 400, 402, L. R. A. 1915E, 972, Ann. Cas. 1917A, 175.
In L. R. A. 1915E, at page 972, we find a note covering cases involving the question before us. We take liberty in quoting at length from the leading case of Redington v. Redington, 2 Colo. App. 8, 29 P. 811, where a wife's adultery after her husband's desertion had ripened into a right of action for divorce was held a good recriminatory defense to her action for divorce upon the ground of the desertion.
Redington v. Redington, 2 Colo. App. 8, 29 P. 811, at page 812.
[2][3] If the plaintiff, either while she was carrying on this suit, or before she had commenced this suit, but after having been abandoned and deserted by the husband whom the court found to be “decrepit and in his dotage,” commenced an adulterous intercourse on her own part with one Reuben Garcia, or any other person, which we do not decide, nor are we called upon to decide in the instant case, such adultery would be a bar to the plaintiff's suit, if discovered at any time before decree entered. It appears that the trial court should consider the same. If the testimony of defendant's witnesses be not believed by the court, that is an entirely different matter. The court should, however, permit the testimony offered by defendant to go in, and be considered in the light of what we here say.
[4] The plaintiff's plea of surprise cannot be considered. The allegation that “plaintiff is living with one Reuben Garcia, an unmarried man,” sufficiently apprised her of what defendant intended to prove. If plaintiff's actions with Reuben Garcia are without fault, and she has denied impropriety, she will not suffer by permitting the court to consider this question, not as immaterial, but as material, and if the defendant prove his charge of unfaithfulness to be true to the satisfaction of the trial court, such proof of adultery would bar her suit.
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...though deserted by her lawful spouse, has not a clear conscience and may not seek the favor of the court." Chavez v. Chavez, 39 N.M. 480, 50 P.2d 264, 265, 101 A.L.R. 635. The supreme court of Maryland, in the case of Green v. Green, 125 Md. 141, 93 A. 400, L.R.A.1915E, 972, Ann.Cas.1917A, ......
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...of Civil Procedure, Sec. 1299. 12 Justice Hudspeth, in a specially concurring opinion in the case of Chavez v. Chavez, 1935, 39 N.M. 480, 486, 487, 50 P.2d 264, 267, 268, 101 A.L.R. 635, "`Incompatibility' is defined by the Century Dictionary as: `The quality or condition of being incompati......
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...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 pol......