Cooper v. Cooper

• Decision Date: 03 March 1976
• Citation: Cooper v. Cooper, 331 So.2d 689, 57 Ala.App. 674 (Ala. Civ. App. 1976)
• Parties: Doris H. COOPER v. L. Bancroft COOPER. Civ. 603.
• Court: Alabama Court of Civil Appeals

Page 689

331 So.2d 689

57 Ala.App. 674

Doris H. COOPER v. L. Bancroft COOPER.

Civ. 603.

Court of Civil Appeals of Alabama.

March 3, 1976.

Rehearing Denied April 14, 1976.

[57 Ala.App. 675] Henry C. Chappell, Jr., Montgomery, for appellant.

D. Coleman Yarbrough, Montgomery, for appellee.

BRADLEY, Judge.

Plaintiff filed an action against defendant seeking a divorce on the ground of incompatibility. The defendant answered by denying the allegation as to incompatibility and counterclaimed by asking for a divorce on the ground of adultery. The defendant requested indefinite periodic alimony payments, a division of property, custody of minor children, child support, medical and dental expenses for minor children, and necessary expenses for children in college.

After a consideration of the pleadings and all the evidence submitted in the case, the court found that the plaintiff had proved that the parties were incompatible and that defendant had proved that plaintiff was guilty of adultery. In view of this state of the record, the trial court concluded that due to the doctrine of recrimination, both parties must be denied a divorce. The court then awarded the defendant separate maintenance, custody of the two minor children with reasonable visitation in plaintiff, child support, the use of the family dwelling and all household goods located therein. Plaintiff was also ordered to pay the taxes, insurance and mortgage payments on the family dwelling, plus $5,000 for repairs to it. He was also required to pay an attorney's fee in the amount of $4,500 to defendant's attorneys plus costs.

A motion to amend findings and conclusions or in the alternative a rehearing was denied. Thereafter appeal was perfected to this court.

The first and foremost hurdle to be surmounted by this court is the efficacy of the trial court's conclusion that the doctrine of recrimination applies where one of the grounds of divorce is incompatibility.

Act No. 2272, Acts of Alabama 1971, p. 3662, providing new and additional grounds of divorce, is, in pertinent part, as follows:

'(a) The Circuit Court in equity has power to divorce persons from the bonds of matrimony, upon a petition filed by one of the parties, entitled 'In re the marriage of _ _ and _ _', for the causes following: . . . 7. Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case, that there exists such a complete incompatibility of temperament that the parties can no longer live together.'

Since the adoption of incompatibility as a ground of divorce, no Alabama appellate court has decided whether the doctrine of recrimination can be invoked as a defense where one of the parties alleges and proves that the parties are incompatible.

The doctrine of recrimination in Alabama is of statutory origin, Colotti v. Colotti, 280 Ala. 525, 196 So.2d 375. By the express terms of legislative acts both past and present, the only specified ground for invoking the doctrine is mutual adultery. Recrimination first appeared in Alabama statutes in Act No. 15, § 3, p. 61, Acts of Alabama 1824, wherein the legislature provided that, 'In all cases where both parties shall be guilty of adultery, it shall be a bar to a divorce.' Prior to this enactment the statutory bars to divorce in Alabama included connivance, condonation, collusion, and confession of evidence, but did not include recrimination.

In 1837 the case of Richardson v. Richardson,4 Port. 467, 30 Am.Dec. 538, held that the 1824 statute did not recognize desertion as a proper basis for a recrimination defense to divorce sought on ground of adultery. Remarking that the Alabama divorce statutes were copied from the rules of the Ecclesiastical Courts of England, Justice Goldthwaite said:

'. . . [T]he answer seems very distinctly to admit the crime charged; but to rest its excuse on what is termed by the ecclesiastical Courts, compensatio criminis, setting up the desertion of the wife from his house, in eighteen hundred and twenty-nine, as a bar to her relief. If such was admitted, it would not bar the relief.--Even a malicious desertion will not bar a sentence of divorce, for adultery.--Sullivan v. Sullivan, 2 Ecc. R. 314.' Richardson v. Richardson, supra.

It is implicit in Richardson v. Richardsonthat recrimination only extended to cases of mutual adultery.

The 1852 Alabama Code compiled all of the bars to divorce into a single section, Title 5, Section 1966, the wording of which has survived to the present in Title 34, Section 26, Alabama Code of 1940. In 1852, as now, the only express statutory ground for a recriminatory bar to divorce was mutual adultery: 'No decree can be rendered . . . where both parties have committed adultery . . ..' There is no discernible difference in substance between the 1824 version of statutory recrimination and the present one appearing in 1852.

Nevertheless, the Civil War era case of Ribet v. Ribet,39 Ala. 348, held:

'In view of the provisions of the Code of Alabama [of 1852], on the subject of divorce, and the general current of authority, we hold the doctrine, that any one of the statutory causes for a divorce may be set up in bar of a bill for a divorce a vinculo predicated on any other of the statutory causes. . . . Thus, if the husband proceeds for a divorce on the ground of adultery of the wife, she may defeat his suit by alleging and proving that he himself was guilty of such cruelty towards her as would otherwise have entitled her to a decree for a divorce as against him; and so vice versa, if she proceed on the ground of his cruelty, he may reply in bar that she was guilty of adultery.'

This holding is most puzzling. While purporting to be harmonious with Code provisions, Ribet departs from the Code and from the leading prior authority to recognize a greatly expanded field of operation for the doctrine of recrimination.

An entire line of cases is descended from Ribet. Each of these cases scrupulously alludes to the existence of legislation as the necessary source of the recrimination doctrine, yet virtually every case reaches a result radically opposed to the clear sense of the statute. The ultimate development was reached in Colotti v. Colotti, supra, wherein the supreme court said:

'The following is a succinct statement of the doctrine of recrimination. Where each of the spouses has been guilty of misconduct which is cause for divorce, neither is entitled to the remedy. . . .

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'If the doctrine of recrimination in divorce suits is to be changed in this state the law must be changed, and that is a matter committed to the legislature. . . .'

The cases from Ribet to Colotticontain an internal inconsistency which cannot be resolved. These cases clearly admit, in fact they stress, the preeminence of legislation in the field of divorce; yet they give effect to a century-old judicial interpretation of a statute completely at odds with the legislative design.

In this situation, it would not be wise to compound the problem by extending the expanded concept of recrimination to the recently legislated incompatibility ground for divorce. As mentioned in Colotti, changes in the doctrine are committed to the legislature, and there is no statutory language indicating that the legislature, in creating the ground of incompatibility, meant to incorporate the troublesome concept of recrimination.

Prior to the adoption in this state of incompatibility as a ground of divorce, the available grounds for divorce required misconduct or fault on the part of one of the parties to the marriage. We feel that the doctrine of recrimination is inseparable from the concept of fault.

In Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. den. 290 Ala. 370, 274 So.2d 80, we said:

'Incompatibility of temperament is antagonistic to the concept of fault or wrongdoing as a ground for divorce.

'Incompatibility of temperament necessarily involves both parties. While one spouse may have a more normal temperament than the other and the overt acts evidencing incompatibility may come largely from the other spouse, it is inconceivable that a husband's temperament can be compatible with that of his wife if hers is incompatible with his.

'If there is a clash of personalities, both must clash. The negative attitude of one may bring into expression the affirmative conduct of the other. Where incompatibility is the ground for divorce, fault should recede into the background and be superseded by the inquiry into the suitability of the spouses for each other as shown by the reality of their marital life. Burch v. Burch, supra; 195 F.2d 799, (3 Cir. 1952); Shearer v. Shearer, (3 Cir.), 356 F.2d 391 (1965) [dissenting opinion].

'We therefore hold that either spouse may bring a divorce in Alabama on the ground of incompatibility of temperament, Tit. 34, § 20, Code of Alabama 1940, and may secure a divorce upon such ground without proving that the other spouse is in any way guilty of misconduct or is responsible for, or that his or her conduct or actions created such state of incompatibility.

'If the incompatibility be established by the evidence in the trial court, a divorce may be granted without any specific determination as to whether either, both or neither of the parties is responsible or at fault as we traditionally consider fault. It is only incumbent upon the party bringing the action to establish by the evidence that a state of incompatibility exists.'

The basic distinction between a divorce for incompatibility and one based on a fault ground, as enunciated in Phillips, is the existence of a state of incompatibility, regardless of fault or misconduct. If proven facts show that the parties are incompatible and there is very little likelihood of reconciliation, the marriage relation should be given a decent burial.

By adopting such a procedure for divorce, the legislature has recognized that a marriage may be dead without the misconduct of...