Cumming v. Cumming

• Decision Date: 07 September 1883
• Citation: 135 Mass. 386
• Parties: Louisa W. Cumming v. William Cumming
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 386

Louisa W. Cumming v. William Cumming

Supreme Court of Massachusetts

September 7, 1883

Suffolk. Libel for divorce, filed November 2, 1881, on the ground of adulteries alleged to have been committed by the libellee in October, 1881. The answer denied the allegations of the libel, and, by way of recrimination, alleged that prior to the filing of her libel, the libellant had been guilty of adultery with a person named. The libellant filed a replication, denying the charge set forth in the answer, and stating that, if said charge was true, the offence had been fully condoned by the libellee. Hearing before Morton, C. J. who reported the case for the consideration of the full court, in substance as follows:

The parties were married in 1870, and lived together in Boston until October 19, 1881.

The libellant proved the allegations of adultery set forth in her libel. The libellee then offered to prove that the libellant committed adultery, as alleged in the answer, in the year 1875, and confessed the same soon after to him, and that he forgave and condoned the offence. Before any such proof was produced, with consent of the parties, the case is reported to the whole court for its decision thereon.

If, in the opinion of the court, the facts offered in evidence by the libellee would, if proved, be sufficient to deprive the libellant of the right of being divorced on account of the libellee's adultery, then the case is to be sent back for a new trial; otherwise, a decree of divorce is to be entered in favor of the libellant on account of the libellee's adultery.

Divorce granted.

E. D. Sohier, for the libellant.

E. P. Usher, (J. P. Treadwell with him,) for the libellee.

C. Allen J. Devens & W. Allen JJ., absent.

OPINION

C. Allen J.

No testimony was taken at the trial in support of the libellee's offer to prove that the libellant had committed adultery, and confessed the same to him; but, for the purpose of determining this case, it must be assumed that he could have proved the facts which he offered to prove; and the question thus presented for decision is, whether a married woman, who has committed adultery, and confessed it to her husband, and been expressly forgiven by him, and who has lived with him for six years thereafter, is debarred from maintaining a libel for a divorce on the ground of his adultery committed after such a period of cohabitation. There is no statute upon this subject in this Commonwealth, and no binding authority by way of precedent; and the question is therefore a new one here.

We are met at the outset with the question whether the court should lay down a general rule of law applicable to all cases, or determine each case as it arises, upon its own merits. It may perhaps be considered that in morals there is a difference in gravity between the various matrimonial offences which are declared by statute to be sufficient grounds of divorce, and that a judicial discretion should be exercised in respect to the effect of a condonation, and that all the circumstances should be taken into account and weighed, and a divorce allowed or refused to a party who has previously been guilty of an offence, which has been condoned, according as it might on the whole seem proper to the court. Some judicial authority may be found for such a course. Goode v. Goode, 2 Sw. & Tr. 253. And legislative sanction has been given to it in England, though not in Massachusetts. St. 20 & 21 Vict. c. 85, § 31. While it is true that in some cases more exact justice might be done between the parties by the exercise of such discretion, it is better that such authority should be conferred by the Legislature, if it deems it expedient, than that it should be assumed by the court. We are more inclined to deal with the question as one of principle, and to seek for the general rule by which this case, and other cases presenting similar facts, should be governed.

It is to be observed that such a condonation as that which is included in the offer of proof and the facts stated in the present case is as complete and perfect as can ever exist. It is to be assumed, in our consideration of the question, that there was an express confession of adultery, and an express forgiveness, followed by a voluntary cohabitation for a number of years. The effect of cohabitation as a condonation may be supposed to be less stringent upon a wife than upon a husband, for the reason that she may be more under marital authority, sub potestate, and more destitute of advice and assistance. She may find a difficulty in quitting her husband's house. And it has accordingly been considered that the force of a condonation, as a bar to proceedings for a divorce, varies according to the circumstances. Beeby v. Beeby, 1 Hagg. Ecc. 789. Shelf. Mar. & Div. 445. In the case before us, the condonation was on the part of the husband, and nothing appears in the offer of proof to show that there was anything to mislead him in any way, or any misapprehension on his part, or anything to prevent him from leaving his wife at once upon the discovery of her offence, or that there has been any subsequent misconduct on her part, or violation of the implied condition upon which a condonation rests.

It is suggested, rather than expressly argued, on the part of the libellee, that the offence of adultery, when committed by a wife, is less pardonable than when committed by a husband; and that, however it might be if the position of the parties were reversed, an adultery by a married woman cannot be so effectually condoned as to enable her to stand before the court as a suitor for a divorce on account of the same offence subsequently committed by her husband. It is certainly true that the consequences of the wife's adultery may be more serious to the family relation, by reason of the risk of introducing spurious offspring. Nevertheless, the statutes of the Commonwealth recognize no distinction between the husband and the wife in respect to the gravity of marital offences, when considered as grounds of divorce. Both parties stand alike before the law.

It is further to be observed, that recrimination, as a bar to a divorce, is not limited to a charge of the same nature as that alleged in the libel. The statutes enumerate various causes, either of which will equally entitle the aggrieved party to an absolute divorce. Adultery, and, under certain circumstances defined in the statutes, intoxication desertion, cruelty, refusal to support, conviction of a crime...