Pease v. Pease

• Decision Date: 18 September 1888
• Citation: 39 N.W. 133,72 Wis. 136
• Parties: PEASE v. PEASE.
• Court: Wisconsin Supreme Court

72 Wis. 136

39 N.W. 133

PEASE

v.PEASE.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Ashland county.T. L. & C. T. Kennan and Miles & Shea, for appellant.

Tomkins & Merrill, for respondent.

COLE, C. J.

The plaintiff and appellant brought this action for a divorce from the bonds of matrimony on the ground of adultery committed by the defendant. The wife denied the charge of adultery in her answer, and by way of recrimination, defense, or bar to the plaintiff's action, asked for a limited divorce from the husband on the ground of cruel and inhuman treatment on his part. On the trial of the issue of adultery the jury found against the defendant, and the court found the plaintiff guilty of cruel and inhuman treatment of the defendant, and held that neither party was entitled to a decree of divorce. The sole question before us on this appeal is the correctness of this decision.

Our statute makes adultery and cruel and inhuman treatment of the wife by the husband equally grounds of divorce. Section 2356. The statute places them upon the same ground, attended by the same legal consequences. The cruelty complained of and proven were acts of personal violence on the part of the husband; his striking her in one instance a severe blow in the face with his fist while she was lying in bed, which blow caused a wound that bled freely, and left a bruise for several days upon the face. The circuit court also found other instances proven of violent conduct on the plaintiff's part towards his wife, which in some cases were mitigated to some extent by her improper and exasperating behavior. The evidence is not before us, but we must presume it fully sustained the finding of the court on the facts. So, the simple question presented is, where it is shown that each party has been guilty of an offense which the statute has made a ground for divorce in favor of the other, will the court interfere and grant relief to either offending party? We do not perceive upon what logical principle the court could grant redress to the husband for the adultery of the wife when he himself has been guilty of an offense which would give her a right to an absolute divorce were she without fault. Both parties have violated the marriage contract, and can the court look with more favor upon the breach of one than the other? It is an unquestioned principle that where one party is shown to have been guilty of adultery such party cannot have a divorce for the adultery committed by the other. Smith v. Smith, 19 Wis. *522. Mr. Bishop says there is an entire concurrence of judicial opinion upon that point both in England and in this country, and that it makes no difference which was the earlier offense; nor even that the plaintiff's act followed a separation which took place on the discovery of the adultery of the defendant. 2 Bish. Mar. & Div. § 80. In the forum of conscience, adultery of the wife may be regarded as a more heinous violation of social duty than cruelty by the husband. But the statute treats them as of the same nature and same grade of delinquency. It is true, the cruelty of the husband does not justify the adultery of the wife; neither would his own adultery,--but still the latter has ever been held a bar. And where both adultery and cruelty are made equal offenses, attended with the same legal consequences, how can the court,...