Doyle v. Doyle

• Decision Date: 31 March 1858
• Citation: 26 Mo. 545
• Parties: DOYLE, Appellant, v. DOYLE, Respondent.
• Court: Missouri Supreme Court

26 Mo. 545

DOYLE, Appellant,

v.DOYLE, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. Where a divorce is sought on the ground of cruel and barbarous treatment, the inquiry instituted should embrace the conduct of the parties toward each other during the period of the alleged misconduct; proof of particular acts of cruelty, especially where the divorce is sought by the husband, will not generally be sufficient to authorize a judgment of divorce. The conduct of the husband should not, under such circumstances, be such as to contribute materially to the wrong and violence of which he complains. If the alleged cruel treatment be the result of his own ill conduct he cannot have the redress sought.

2. Except by virtue of statutory provisions the courts can decree alimony only as an incident to a judgment of divorce.

3. The separation of a husband from his wife during the pendency of a suit by him for a divorce does not constitute an abandonment within the meaning of section 9 of the act concerning divorce and alimony (R. C. 1845, p. 428); it would not--the husband failing to obtain a divorce--authorize a decree for alimony.

Appeal from St. Louis Circuit Court.

This was an action for divorce commenced May 1, 1852. The ground of the action was such cruel and barbarous treatment as to endanger the life of the plaintiff, the husband, and the offering of such indignities to his person as to render his condition intolerable. Particular acts of violence were alleged extending through a period of time commencing in May, 1848, and ending April 29, 1852. Defendant in her answer alleged various acts of violence and cruel treatment on the part of the husband, and gave an entirely different version to the matters alleged in the petition, charging the wrong therein to have been on the part of the husband.

The cause was heard by the court, and a divorce was refused. The court then sent the cause to a commissioner touching the question of the support and maintenance of the wife and the two children in her care. The commissioner having reported, the court decreed to the wife an allowance for her support and maintenance, and also allowances for the support and maintenance of two of her children in her care. The court refused to grant to the plaintiff the care and custody of said children.Dick, for appellant.

I. The court erred in refusing to plaintiff the divorce prayed.

II. The court also erred in depriving plaintiff of the custody and control of his two children. By the order and judgment of the court that plaintiff should pay to his wife all the money required to support his children, the common law right of the father was set aside.

III. The court failed to find facts on which to base its judgment for maintenance. The law only authorizes the court to decree support where the husband shall “refuse or neglect to maintain and provide for” the wife. The court's finding is totally silent as to this fact.

S. T. & A. D. Glover, for respondent, cited 1 Greenl. Ev. § 432; 9 Mo. 539; 12 Mo. 53; 1 Hagg. 342; 2 Paige, 111; Wright, 475; 4 Paige, 643, 470; 9 Conn. 233; 1 John. Ch. 106, 492, 364; 4 Blackf. 133; 4 N. H. 463; 10 N. H. 272; 4 Dess. 79, 560; 6 Mass. 149; 10 Paige, 20; 3 Ed. Ch. 62, 389; 1 McCord, 205; 6 Harr. & Jo. 488; 4 Hen. & Mun. 407; 9 N. H. 309, 328; 3 Paige, 267; 1 Green, Ch. 19; 19 Ves. 394; 1 Clark, 344; 1 Bland, 101; 4 Johns. C. 501; 1 Paige, 84; Bishop on Marriage and Divorce, 604, 606, 618; 9 Johns. Ch. 92; 2 B. Mon. 372; 5 Pick. 428; 3 Edw. Ch. 194; 2 Green, Ch. 171; 3 Dana, 28.

SCOTT, Judge, delivered the opinion of the court.

This is a petition for a divorce by the husband for alleged cruelty towards him on the part of the wife. It is obvious that in cases of such kind the attention can not be confined to the particular act or acts alleged as a ground for a divorce, but the inquiry must necessarily involve the conduct of the parties to each other for the period during which it is alleged that the misconduct took place. It is not like the case of a bill for divorce for adultery or any other specific act, on the proof of which the complainant by law becomes entitled to a divorce, but the cruelty in most cases which gives cause for a divorce must be evidenced rather by general conduct than by particular acts. The act or acts alleged may be proved, but a divorce would not follow as a matter of course. These observations are made as a justification for our foregoing an examination of the conflicting testimony of the witnesses in relation to the facts on which the plaintiff places his right to a divorce; for the truth of the contested facts may be admitted, and yet counterpoising facts may debar him from the relief he seeks. We do not maintain that a single act of cruelty may not be evidence of so depraved a heart and be accompanied with such circumstances as would authorize a divorce, but we speak generally of cases for divorce on the ground of cruelty, and we see nothing in this case nor its circumstances which serves to distinguish it from the mass of cases. Courts interfere on the ground of cruelty to prevent future harm, rather than to punish the defendant for what has been already done. Hence it follows that all the circumstances together must be taken into consideration, for the question is not whether this or that fact alleged would render it the duty of the court to pronounce for a separation, but whether all the facts combined ought to lead to that result. (Saunders v. Saunders, 1 Rob. 547.) In some states the husband is not allowed to exhibit a bill against the wife for cruelty; but our statute allows this; yet we can not help feeling that ordinarily it is an unnatural position for the husband to occupy. The power with which he is clothed by law to constrain the conduct of his wife, his superior strength in most cases, would naturally cause him to be regarded in a less favorable light in such a position than the wife, who has no legal control over the actions of her husband, and whose sex and inferiority in point of strength force her into the courts to seek protection from unmerited wrongs and violence. The case of Perry v. Perry, 1 Barb. C. 516, maintains that on a bill of a husband against the wife for separation on the ground of complicity, it was not sufficient for him to show a single act of violence on her part towards himself and those who are under his protection, or even a series of such acts, so long as there is no reason to suppose that he will [not] be able to protect himself by a proper exercise of his marital power. In such a suit it was material that the husband should establish such a continued course of bad conduct on the part of the wife towards himself as to satisfy the court that it is unsafe for him to cohabit or live with her.

When all the circumstances of this case are considered taking as true the acts of violence alleged to have been committed by the wife towards the husband, we are of opinion that the husband is not entitled to a decree, and that opinion is based on the conduct of the husband himself. An entire exemption from fault or censure is not regarded as necessary in order to entitle one of the parties to a marriage to a separation from the other on the ground of cruelty. But when one of the...