Hoffman v. Hoffman

• Decision Date: 31 March 1869
• Parties: GEORGE HOFFMAN, Respondent, v. BARBETTA HOFFMAN, Appellant.
• Court: Missouri Supreme Court

43 Mo. 547

GEORGE HOFFMAN, Respondent,

v.BARBETTA HOFFMAN, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

Garesche & Mead, for appellant.

The court will review the evidence in a divorce suit, and reverse where the decree is not justified by the evidence. (Lewis v. Lewis, 5 Mo. 278; Nagel v. Nagel, 12 Mo. 55; Oliver v. Oliver, 20 Mo. 261.)

Kreiter and Wingate, for respondent.

Where, in a divorce suit, it appears in evidence that neither party has been injured, both the bill and cross-bill should be dismissed. (12 Mo. 53, 157.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff filed his petition in the St. Louis Circuit Court for a divorce from his wife, the said Barbetta, making the allegations of residence, marriage, good behavior, and charging that the defendant, wholy unmindful of her duty as a dutiful and affectionate wife of the plaintiff, left and abandoned this plaintiff on or about the 11th day of April, 1860, without any good reason for so doing, and has continued to live separate from him since that time. The defendant admits the leaving, denies the good conduct of the plaintiff, and says that his conduct was such to herself and her children that she was compelled to leave him. By way of cross-petition she charges upon him such indignities as rendered her life intolerable; specifies the character of these indignities, and alleges her own fidelity and good conduct, and prays for a divorce on her part.

The finding of the Circuit Court was “that neither plaintiff nor defendant is an injured party,” and both bill and cross-bill were dismissed. The court, in general term, refused to set aside the judgment, and the case is brought here by appeal.

The doctrine of recrimination, with the right of one party to set up misconduct in the other in an action for divorce, is by no means well settled in England or in most of the States. The canon law is the foundation of the jurisprudence of Europe and the United States in the matter of divorce; and the Decretals of Gregory IX, as quoted by Bishop, § 393, establish the doctrine to the extent that a plaintiff who has committed adultery cannot have a divorce by reason of defendant's adultery. In France and Scotland the doctrine is repudiated, while in England it is adopted to the extent, at least, that an offense like the one charged in a prosecution may be successfully recriminated.

But in Missouri the more reasonable rule has been long established that, in reply to an application for divorce, the defendant may allege, either by way of recrimination or cross-petition, the commission by the plaintiff of any offense that by the statute is made a cause for divorce.

In Ryan v. Ryan, 9 Mo. 535, our Supreme Court held that, in a suit for divorce by the husband upon the ground of habitual drunkenness for more than two years, the wife might recriminate adultery on his part. In giving the opinion, Judge Napton reviews the whole subject, refers to various decisions in England and this country, and, though he does not attempt to lay down a universal rule, yet the decision is only consistent with the doctrine subsequently established.

In the case of Nagel v. Nagel, 12 Mo. 53, the court held that when both parties are found guilty of any of the offenses enumerated in the statute as grounds for divorce, the bill should be dismissed, and a divorce refused to either party when one had been guilty of cruel and inhuman treatment, indignities, etc., and the other had been guilty of adultery. The decision was based upon the provisions of our statute in this respect which authorize such recrimination, although the phrase “guilty of adultery,” near the close of § 7, chap. 114, Gen. Stat. 1865, would seem to imply that such authority existed only when adultery is charged. This phrase was very properly held to be inconsistent with the other provisions of the statute, and the section was harmonized with them by giving it the same construction it would receive were the words “of adultery” omitted.

On the 12th of March, 1849, the act concerning divorce and alimony was amended; and, among other amendments, the provision at the close of the first section, that the innocent and injured party may obtain a divorce, etc., was changed to read as it now stands: “The injured party, for any of the causes above enumerated, may obtain a ‘divorce,” etc. Why the word “innocent” was omitted is not clear, unless regarded as superfluous, or--more likely--to conform to section 3, where a divorce is provided for the defendant if the court shall find that he or she is “the injured party.”

The statute should receive the same construction in this respect as before the change; at least no better character should be required of a party seeking a divorce, and we are not inclined to allow it to a person sustaining a worse one. The least that can be required, if we would make the provisions of the statute harmonize with the principles of the law in other respects, would be to compel parties to come into court with hands so far clean, at least, that the opposite party is not entitled to the same redress from them. If both parties have a right to divorce, neither party has. The court must...