Hagert v. Hagert
| Decision Date | 25 November 1911 |
| Citation | 133 N.W. 1035,22 N.D. 290 |
| Parties | HAGERT v. HAGERT |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Templeton, J.
Action by Claus Hagert against Emma Hagert. From a judgment for plaintiff, defendant appeals.
Affirmed.
Skulason & Burtness, for appellant.
Geo. A Bangs and Geo. Robbins, for appellee.
GOSS J. Honorable A. G. BURR, Judge of the Ninth Judicial District, sitting by request in place of Honorable D. E MORGAN, Chief Justice at the time of hearing, who did not participate.
This is an independent action for permanent alimony brought in equity and based on the provisions of our Codes as to the duties and obligations of husband and wife toward each other, and particularly with reference to §§ 4075, 4077, 4078, 4079, Rev. Codes 1905. To the husband's complaint the wife demurred, and the matter is before us with no issue of fact involved. For our determination is presented the right of the husband to maintain an action in equity against his wife to recover from her as equitable relief his maintenance, permanent alimony, and this independent of an action for divorce.
A glance at the pleadings is sufficient to convince us that, if such an action can be maintained, it is certainly justifiable in this instance. Plaintiff and defendant have been married thirty-one years. The plaintiff is fifty-five years old, and physically unable to work, suffering from the effects of paralysis. He is utterly destitute, without means, and infirm. His wife, on the contrary, is wealthy, owning property within this state of the value of more than $ 30,000 with a net annual income of at least $ 3,000, with no one dependent upon her for support except a twelve-year-old son, the issue of said marriage. Plaintiff has not deserted defendant, but she refuses him maintenance. He asks for support money pending suit to afford him the necessaries of life, and that his wife be required to make such monthly payments as necessary for future provision for his maintenance, and also that counsel fees and expenses of this action be allowed him. The trial court passed upon the matter of maintenance pending suit, on the affidavit of the respective parties, in the same manner as an application by a wife for alimony pending suit in an action for divorce would be determined. An allowance was made him of $ 50 per month pending suit, with $ 100 for attorney fees, from the making of which order defendant promptly appealed, refusing to make such payments and questioning the authority of the court to order the same or to entertain the action at all, charging insufficiency of the complaint to state a cause of action.
The statute in the sections heretofore referred to provides: Section 4075. "Husband and wife contract toward each other obligations of mutual respect, fidelity, and support." Section 4077. Section 4078: "Except as mentioned in § 4077, neither the husband nor the wife has any interest in the property of the other, but neither can be excluded from the other's dwelling." We also have the statutory provisions as to divorce, among them § 4070, providing: "Though a judgment of divorce is denied, the court may in an action for divorce provide for the maintenance of a wife and her children, or any of them, by the husband,"--and § 4071, providing for alimony pending action for divorce. But we have no statutory provision expressly authorizing an action by one spouse against the other for maintenance or support, unless chapter 167 of Session Laws of 1890 is unrepealed.
Defendant therefore insists that § 4077, declaring the duty of the wife to support the husband under the circumstances before us, is merely the declaration of an unenforceable right, for the reason that the legislature has not seen fit to declare the manner of its enforcement; further, that at common law no right of action exists in such a case, and hence until the legislature expressly provides the procedure to enforce the right, the courts are powerless to grant relief; and the husband, to whom the statutory duty is owing, is remediless, and must console himself with whatever comfort he can obtain from his situation, enduring a wrong without a remedy, meanwhile securing his own livelihood as best he may. So defendant eloquently proclaims that the law in its application to this case, notwithstanding the provisions of § 4077, points the way "over the hills to the poorhouse" for the husband, that the wife may continue to miserly hoard her wealth. This is a case of first impression in this state. At first blush, and from other than a careful investigation of the subject, it would seem that courts would be obliged to accept defendant's position as correct. It is in part true that there is no sanction in the common law for this action. More accurately speaking, there is no English common law on the subject. It is true authorities may be found declaring that at common law a husband cannot sue his wife for support. Likewise is it true that case law can be found supporting almost any proposition in divorce and alimony matters one may care to advance and within reason. On the right of the wife to maintain a separate action for alimony, independent of divorce, and in the absence of statutory authority, courts were once in hopeless conflict, dependent largely upon how they saw the light of the supposed common law, the state of mind from which research was made, and the inclination of the court in the particular case.
Necessarily connected with marriage and divorce no one subject of the law is historically more interesting than the one under consideration, involving as it does marital rights of a personal as well as a property kind. The proper application of the decisions thereon compels their being read in the light of the advance of the rights of womankind from a position of subordination to man to the present plane of civil equality of the sexes in personal and property matters. When so viewed, it is easy to conceive why in England no action similar to this can be found. Under the common law since it can be said to there exist, the husband was the lord of the manor, with the wife an inferior in all respects. And even to-day in that country the wife is not, in divorce or property matters, on a footing of equality with the husband. Under early English jurisprudence, the wife completely lost her identity after marriage, and husband and wife became one, with the husband the one. And this was true as to property as well as to personal rights growing out of the marriage relation. By virtue of the marriage the husband had supreme control even of the real estate of the wife, and became owner of her personal property. She had no power to contract or control it. She could not sue others except through her husband, much less sue him. He possessed and exercised the means of sustenance, and there could not exist the necessity, as in this case, of a suit by the husband against the wife for support. He had all she possessed, and no necessity for suit existed. Herein lies the reason for the absence of common law on this subject. Can it be said that such a condition can constitute a precedent under the situation before us? Courts may accept decisions coeval with Columbus, but it is only when similar conditions make the reason for the holdings applicable. As a matter of fact, when paralleling conditions, there are certain eras in Rome when Roman law would be more fittingly applied to present day divorce in these United States than any English precedent, which latter is really, when considered with procedure, often without weight under our present system. As illustrating, Rome gave to the world the first body of law on marriage. It was in Rome that the state first asserted its interest in the marriage relation. It was in Rome, in the later days, that the influence of the Christian religion first gave coloring to the marital laws. It was in Rome that equity was first administered to protect the estate of the wife as against the husband; and it was there, too, that womankind first enjoyed approximately the equality in personal rights possessed to-day under what we are pleased to term our advanced civilization. It was in Rome in her last days also that the divorce became, as many assert it now to be in this country, a national evil; but even in those days the wife enjoyed equal and sometimes superior rights of divorce to those of the husband. To further study the applicability of English precedent in these particulars, let us further digress. England in adopting the civil law took with it the Roman institution of marriage, and much of what that law so prescribed, but at a time when the civilization of the age demanded the mastery of the man and the obedience of the woman, and in general the assertion of superiority of the male over the female. But here is again reflected a racial characteristic modifying the law growth. The English are as a race conservative in governmental matters, never adopting anything tending toward instability or uncertainty. This tendency is always toward system and permanency. They are as much so in domestic and religious matters, and, following such trait, they rejected the idea of divorce, and for centuries no absolute divorce existed. During this period the ecclesiastical courts came into existence, and their jurisdiction over personal (styled temporal) matters growing out of the marriage relation became clearly defined and generally asserted. But such cour...
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