Kirn v. Kirn

• Decision Date: 17 January 1924
• Citation: 120 S.E. 850
• Parties: KIRN. v. KIRN.
• Court: Virginia Supreme Court

120 S.E. 850

KIRN.

v.KIRN.

Supreme Court of Appeals of Virginia.

Jan. 17, 1924.

Appeal from Law and Chancery Court of City of Norfolk.

Action by Grace E. Kirn against Henry Kirn. From decree of dismissal, defendant appeals. Affirmed.

E. R. F. Wells, of Norfolk, for appellant.

Tomlin & Maupin, of Norfolk, for appellee.

PRENTIS, J. Grace E. Kirn sued her husband, Henry Kirn, for divorce, alleging desertion on October 1, 1918, and cruelty for a considerable period prior thereto. On August 18, 1919, Henry Kirn filed his answer and cross-bill, denying the allegations of the original bill, and charging her with desertion and adultery.

On October 6, 1921, the learned judge whoheard the case entered a decree finding "that the charges made in the bill of complaint against Henry Kirn, and also the charges made in the answer and cross-bill of Henry Kirn against Grace E. Kirn, are true, and have been established." Upon that finding of facts he denied alimony to the appellee, rescinded the allowance which had been theretofore required of Henry Kirn for the support of herself and child, and dismissed her bill of complaint. He also denied the prayer of the appellant for divorce, dismissed his cross-bill, and held that the court had no jurisdiction in this proceeding to make any allowance to maintain, support, and educate the infant child of the marriage, and directed appellant to pay to the appellee's attorneys a fee of $3,500 for legal services, and the costs.

The appellant assigns these three errors:

(1) The finding that the charges of appellee against him of cruelty and desertion had been established.

(2) That the court also found that the appellee had been guilty of adultery; therefore the court erred in dismissing his crossbill and refusing to award him a decree of divorce a vinculo.

(3) That the fee allowed to. appellee's attorneys was excessive.

The appellee assigns as cross-error that the court erred in refusing to grant her a divorce a vinculo from the appellant, as more than three years had then elapsed from the date of the cruelty and desertion, which were found to be true, and that it also erred in finding that the allegations of the cross-bill made by her husband against her were established.

The testimony is voluminous, contains many sharp conflicts, and no good purpose would be served by undertaking to recite it. We deem it sufficient to say that it sustains the findings of fact as above stated.

We are confronted, however, with a legal question which has never reached this court precisely in this form. We are called upon to consider the doctrine of recrimination in divorce causes. This subject has been repeatedly discussed by the English and American, courts. The eases are numerous, and it is so easy to find elaborate discussions of the doctrine from every point of view that we think that little is necessary except to state the doctrine and our conclusions.

In 2 Bishop on Marriage, Divorce and Separation, § 340, we find this definition, with the author's conclusion of its effect, whenever it is established:

"Recrimination in divorce law is the defense that the applicant has himself done what is ground for divorce either from bed and board or from the bond of matrimony. It bars the suit founded on whatever cause, whether the defendant is guilty or not."

He shows that courts have not always agreed in its application, but adheres firmly to the prevailing view, and thus states the reasons therefor which he deems conclusive:

"A reason conclusive is, that where the facts tendered to the court show a ground for divorce in favor of each of the two parties, and the law makes the consequences of the divorce different according as it is given to the one party or the other, the court cannot choose between them, extending the law's justice to the one and withholding it from the other; it cannot render a sentence in favor of both, because such sentence would contain a nullifying contradiction, giving and taking away the same thing at the same time. So that the statute, authorizing the divorce and fixing the consequences, and omitting to prefer the one offense or party over the other, by necessary construction forbids divorce either to both, or to one, to the exclusion of the other's rights." Bish. on Mar. Div. & Sep. §§ 370, 365.

In 9 R. C. L. p. 387, § 180, the doctrine as stated by Bishop is accepted as fully established in this country, and many supporting authorities can be there found.

We shall cite only a few of the more recent cases which adhere thereto.

In Green v. Green, 125 Md. 141, 93 Atl. 400, L. R. A. 1915E, 972, note, Ann....