McMillan v. McMillan

• Decision Date: 29 November 1920
• Docket Number: 16045.
• Citation: 193 P. 673,113 Wash. 250
• Court: Washington Supreme Court
• Parties: McMILLAN v. McMILLAN.

193 P. 673

113 Wash. 250

McMILLAN v. McMILLAN.

No. 16045.

Supreme Court of Washington

November 29, 1920

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action for divorce by William J. McMillan against Lelia M. McMillan. From decree for plaintiff, defendant appeals. Reversed.

Tucker & Hyland, of Seattle (Ford Q. Elvidge, of Seattle, of counsel), for appellant.

Geo. H Rummens, of Seattle, for respondent.

MACKINTOSH J.

The respondent instituted this action of divorce against the appellant, alleging cruel and inhuman treatment and personal indignities rendering life burdensome. To the complaint appellant answered by general denial. The parties have a child now aged seven years. At the conclusion of the evidence the court entered a decree, granting a divorce, from which this appeal is prosecuted.

Following the usual custom in actions of this sort, where children would be the innocent sufferers from a detailed recitation of the various charges and counter charges, we will not enter upon an analysis of the testimony. Summarized, it amounts to this: That the appellant has been provoked into ill-tempered and aggravating conduct towards the respondent, which has doubtless interfered with his peace of mind and comfort, but the testimony shows that her actions have been the result of much irregularity on the part of respondent, and that she has been largely justified in her lesser wrongs by the greater ones on his part. We feel that under the circumstances of this case the respondent is not entitled to a divorce, and this by reason of the doctrine of recrimination, which is, that a person seeking a divorce must be innocent of any substantial wrongdoing towards the other party of the same nature as that of which complaint is made.

In Bishop on Marriage, Divorce, and Separation, vol. 2, § 409 (6th Ed.) the rule is stated as follows:

'The refusing of redress to a plaintiff who is himself at fault in that whereof he complains is a familiar and fundamental principle in our entire legal system. Marriage creates reciprocal duties. And for certain breaches of them commonly specified by statutes, the injured party may have a divorce absolute or partial. But if one has committed a breach of this sort, he cannot, conformably with the principles of our jurisprudence, have a divorce for the other's violation. To bring a case within this rule, it is not sufficient that the plaintiff simply lacks the perfections which we attribute to angels, his wrong must be such that but for the other's wrong he would be liable to be himself either partially or fully divorced.'

Nelson Divorce and Separation, vol. 1, § 425, makes the following statement:

'The maxim of equity that, 'He who comes into equity must come with clean hands,' is a general principle which pervades our divorce law. There are two classes of cases where it is held that the plaintiff is not entitled to relief because he does not come with clean hands: (1) Where he has provoked the injury of which he complains; and (2) where he is guilty of marital misconduct of equal gravity. The instance where the plaintiff is denied relief on account of the first class of offenses have already been noticed, as where a party provoked the cruelty complained of or caused the separation which is alleged as desertion. This class of misconduct is a bar to divorce, because the plaintiff is himself responsible for the injury complained of. But the second class includes those cases where the plaintiff is guilty of

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