McClure v. McClure
| Decision Date | 14 June 1943 |
| Docket Number | 4-7101 |
| Citation | 172 S.W.2d 243,205 Ark. 1032 |
| Parties | MCCLURE v. MCCLURE |
| Court | Arkansas Supreme Court |
Appeal from Miller Chancery Court; A. P. Steel, Chancellor affirmed.
Decree affirmed.
Steel & Edwardes, for appellant.
Lincoln & Harris and Ned A. Stewart, for appellee.
The determination of the question presented on this appeal requires a construction of the following subdivision (No. 7) of § 2 of Act No. 20 of the General Assembly of Arkansas, approved January 27, 1939, entitled "An Act to Amend § 4381 of Pope's Digest of the Laws of the State of Arkansas, and for Other Purposes": "Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony."
The lower court dismissed for want of equity appellant's complaint, in which he prayed for an absolute divorce from appellee. The ground on which appellant sought this divorce was that appellant and appellee had lived separate and apart without cohabitation for more than three consecutive years next before the institution of his suit. Appellee denied that any such separation had existed and alleged that appellant and appellee had cohabited a few days before the institution of the suit. She admitted that she and appellant had not, since 1935, lived under the same roof, but she testified that from time to time, while they were living in separate dwelling places in the city of Texarkana, appellant visited her at night and that on several occasions she had visited him at his room at night, and that on each of these visits, one of which had occurred only a short time before the filing of the suit, she and her husband resumed their marital relation, at least for the time being. Appellant denied that any of these acts of marital intercourse occurred after the separation, but the testimony of appellee on this phase of the case was somewhat corroborated by other testimony, and it is not seriously urged by appellant in this court that the chancellor's finding that these acts did occur is against the preponderance of the evidence.
To reverse the decree of the lower court appellant urges here that, even if the testimony of appellee as to these acts of marital intercourse is true, appellant is nevertheless entitled to a divorce because the acts testified to by appellee did not constitute cohabitation. It is insisted by appellant that "cohabitation," as used in the above-quoted statute, means living together, and that proof of isolated or intermittent acts of intercourse between a husband and wife does not establish cohabitation within the meaning of this statute.
The word "cohabitation" has two well-recognized meanings. Under the strict or derivative definition "cohabitation" means living together in the same abode, while under the other, or popular, definition "cohabitation" means sexual intercourse. Many cases decided by this and other courts in which the literal or derivative definition of the word "cohabitation" has been sustained by the court are cited in the exhaustive brief of appellant. The Arkansas cases, in which the literal or derivative definition of the word "cohabit" was sustained, are: Sullivan v. State, 32 Ark. 187; Taylor v. State, 36 Ark. 84; Bush v. State, 37 Ark. 215; Turney v. State, 60 Ark. 259, 29 S.W. 893; and Hovis v. State, 162 Ark. 31, 257 S.W. 363. In all of these cases, except that of Hovis v. State, the court had under consideration § 3287 of Pope's Digest which provides: "If any man and woman shall cohabit together as husband and wife without being married, each of them shall be deemed guilty of a misdemeanor, . . ." In the Hovis case the statute involved was §§ 2601 and 2602 of Crawford & Moses' Digest (§§ 3288 and 3289 of Pope's Digest) forbidding "concubinage," which was defined by § 2602 (§ 3289 of Pope's Digest) as follows: It is apparent that by these acts the legislature was not seeking to punish occasional wrongful acts of intercourse between the sexes, but was forbidding a meretricious relation which, because of its continuance, was a scandal and an offense to the sense of decency of the community. The holding of this court in these cases that "cohabitation" meant more than occasional wrongful acts was in accord with the plain meaning of the term as shown by the connection in which it was used by the legislature, and in our opinion these decisions do not sustain the contention of appellant in the case at bar.
Examples of cases in which courts have adhered to the popular definition of "cohabit" and "cohabitation" are: DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440; Thorp v. Thorp, 165 Wash. 255, 4 P.2d 1103; State v. Freddy, 117 La. 121, 41 So. 436, 116 Am. St. Rep. 195; Burns v. Burns, 60 Ind. 259; State v. Way, 5 Neb. 283; Bracksmayer v. Bracksmayer, 22 N.Y.S.2d 110; and Herrman v. Herrman, 93 Misc. 315, 156 N.Y.S. 688, affirmed 176 A.D. 914, 162 N.Y.S. 1123.
In the DeBerry case, supra, the court said:
In the Thorp case, supra, the Washington Supreme Court held that where the husband and wife sporadically spent the night together this amounted to a cohabitation. To the same effect is the decision in the case of Walker v. Walker, 151 Wash. 480, 276 P. 300.
The Louisiana Supreme Court, in the case of State v. Freddy, supra, held, in construing a statute of that state declaring that persons who, within certain degrees of consanguinity, should intermarry or cohabit without marriage were guilty of incest that the word "cohabit" meant sexual intercourse.
In the Burns case, supra, the Indiana Supreme Court held that the word "cohabit," as used in establishing implication of condonation from "cohabitation" meant sexual intercourse.
Likewise the Nebraska court in the case of State v. Way, supra, held that the word "cohabit," as used in certain legislation,...
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