Poteet v. Poteet.

• Decision Date: 24 May 1941
• Docket Number: No. 4602.,4602.
• Citation: 45 N.M. 214,114 P.2d 91
• Parties: POTEETv.POTEET.
• Court: New Mexico Supreme Court

45 N.M. 214

114 P.2d 91

POTEET

v.POTEET.

No. 4602.

Supreme Court of New Mexico.

May 24, 1941.Petition for Rehearing Dismissed June 24, 1941.

Appeal from District Court, Chaves County; Bryan G. Johnson, Judge.

Action for divorce by Robert Charles Poteet against Leera Mayer Poteet. From a judgment granting plaintiff a divorce, defendant appeals.

Affirmed and remanded.

On review of district court's decision in action for divorce on ground of incompatibility, ordinary principles governing review by appellate courts, including presumptions in favor of correctness of judgment appealed from and rules that district court's fact findings, supported by substantial evidence, will not be disturbed, and that trial court's exercise of discretion will not be disturbed, unless plainly abused, are applicable, usual deference being given to trial judge's judgment. Laws 1933, c. 54.

Laker J. Frazier and Leland M. Quantius, both of Roswell, for appellant.

G. T. Watts, of Roswell, for appellee.

BICKLEY, Justice.

Plaintiff (appellee) sued for divorce, alleging that he and defendant (appellant) had lived together as husband and wife twenty years. That the temperaments of plaintiff and defendant are so adverse, and there exists such a complete incompatible relation between them that they cannot longer live together in peace and harmony, and that, as a result thereof, they had separated and continued to live separate and apart from each other. There are no unmarried minor children of plaintiff and defendant. The complaint alleges that plaintiff and defendant own certain real estate, to which plaintiff disclaims any interest. Plaintiff prayed a decree of absolute divorce. The defendant answered, denying the incompatibility, and stated that plaintiff abandoned her without cause. The answer also contains the following allegation: “That there is no reason why the parties hereto cannot live together harmoniously as husband and wife if the Plaintiff will refrain from associating with other women and be contented with his home life.” The answer does not charge adultery by plaintiff. The appellant doubtless refers to these allegations in her brief as allegations of recrimination.

The court heard the evidence of plaintiff and defendant, whereupon the defendant requested findings of fact, among which were that the parties had lived together for about twenty years with only the ordinary differences between husband and wife, and that the evidence did not disclose any incompatibility between the parties; that plaintiff abandoned defendant without just cause and has not supported her according to his means and ability; that the defendant has had a number of operations, and at the time of the trial was in ill health; that the defendant is the owner of the real estate mentioned in the complaint; that a reasonable sum for her support would be the sum of $40 per month; and that a reasonable sum for attorney's fees would be $75 for services in the district court. Requested conclusions of law were that the plaintiff is not entitled to a divorce, and that the plaintiff should be required to pay the defendant $40 per month and $75 as attorney's fees in the district court.

The record does not disclose any formal specific ruling on defendant's requested findings of fact and conclusions of law, but that the court considered the same, sustaining part and overruling part, is apparent from the final decree, which contains a reference to said requested findings and conclusions.

In the decree the court found that the temperaments of plaintiff and defendant are so adverse that there exists a complete incompatible relation between them and that they cannot live together in peace and harmony; that there are no unmarried minor children of plaintiff and defendant; that the defendant is entitled to receive as her sole and separate estate the real estate described in plaintiff's complaint, and that there is no other community property except an automobile which plaintiff is entitled to receive, and that the plaintiff should contribute the sum of $40 per month to the support of the defendant and should pay all costs of the action, including an attorney's fee to defendant's attorney in the sum of $75.

The decree effectuates these findings and conclusions by adjudging that plaintiff have and recover an absolute divorce from the defendant, and awards to defendant the affirmative relief she prayed. At the conclusion of the trial, the court announced his opinion as follows: “It is unfortunate when two people cannot make a go of their married life. If one party is unwilling to continue the relation there isn't any power on earth-court, or anywhere else-to make it a go. I do not see what is to be gained by keeping them married to one another.”

Viewing it as a sociological observation, we are disposed to think that the trial judge is right. The vital thing to discover is the intention of the legislature in declaring the public policy of the state with respect to divorce.

Appellant seems to advocate the view that divorces should only be granted on the application of the party “injured”. Also, appellant contends for a very strict sociological view, and argues that the attainment of divorce should be very difficult.

In Columbia Law Review, Vol. 20 (1920), page 472, we find the statement: “Native genius and idiosyncrasy have made the law of divorce in the United States a subject of competitive jurisprudence. From South Carolina, which constitutionally prohibits absolute divorce, and New York, which admits adultery as the only ground, to Washington, which grants a divorce for any ground deemed sufficient by the court, the states find thirty-six statutory causes for divorce,-the whole gamut of moral wrong and legal incapacity.”

Undoubtedly in some jurisdictions the application for divorce can be maintained only by the injured party, because of the “fault” of the defendant.

Without doubt, also, it would be an easy solution of the divorce problem to adopt the sacramental view of marriage and permit no divorce at all. In this state, however, that view has not been adopted. Ever since 1862 marriage has been contemplated by the law in New Mexico as a “civil contract”. Laws 1862-63, p. 64. Between the one extreme of no divorce at all and the other extreme of divorce by mutual consent, which in varying degrees was permitted among the Jews in Biblical times, and among the Romans, and in Belgium, China, Japan, Norway, Portugal, Rumania, and Russia, and which has been advocated by More, Milton, Selden, Lecky, Montesquieu, Bentham, and Mill, the states have taken their stand. See Columbia Law Review, supra, citing authorities.

It will be interesting and helpful to trace the evolution of legislative thought on divorce in New Mexico.

By the acts of 1872, Laws 1871-72, p. 28, the courts had jurisdiction only to adjudge or decree a divorce in cases of adultery, cruel or inhuman treatment and abandonment. At that time the idea of fault of one party and injury to the other was preserved. In 1887, Laws 1887, c. 33, the legislature added the grounds of habitual drunkenness on the part of the husband or wife, and neglect upon the part of the husband to support the wife. These new grounds seem to preserve the idea of injury, but do not necessarily imply a criminal fault because habitual drunkenness has been characterized by many as a disease, and the neglect on the part of the husband to support the wife might flow from inability. Up to that time and until 1901, the idea seemed to be injury to one party through the conscious fault of the other. In 1901, Laws 1901, c. 62, § 22, there was added as further grounds, “impotency”, and, “when the wife, at the time of the marriage, was pregnant by another than her husband-said husband having been ignorant thereof;” and “the conviction for a felony, and imprisonment therefor, in the penitentiary, subsequent to the marriage.” Impotency is an incapacity which may result from physiological conditions not necessarily the fault of one so afflicted. The conviction of a felony might not be for a crime necessarily involving moral turpitude, and surely not of necessity connected with the other spouse in any way. Apparently, conviction of a felony subsequent to the marriage not followed by “imprisonment therefor” in the penitentiary would not in itself be a ground for divorce. It is interesting to speculate whether this does not reflect an early legislative thought that the enforced absence of one of the spouses from bed and board due to incarceration in the penitentiary might not operate harmfully to society and the morals of the other spouse. Likewise, if pregnancy at the time of marriage by another man embraces pregnancy by a former husband during coverture, we would have an instance where the ground of divorce does not so much as suggest an implication of guilt in the wife.

In the same act (Sec. 23, Chap. 62, L. 1901), there was introduced a new element. It was provided: “Whenever the husband and wife shall have permanently separated and no longer live or cohabit together, as husband and wife, either may institute suit in the district court for a division of property, or for the disposition of the children, without asking for or obtaining in said suit a dissolution of the bonds of matrimony; or the wife may institute suit for alimony alone.” See Sec. 68-502, N.M.S.A. 1929.

Was it to supplement these provisions that “incompatibility” was later made a ground for divorce?

In Keezer on Marriage and Divorce, at Sec. 64, it is said:

“Legal separations are expressly prohibited in most states, and in others are unknown. It has been a disputed question whether they serve any useful purpose. The weight of argument and authority is against them. To be sure, they may possibly secure a judicial settlement of matrimonial troubles and give an innocent wife protection from a cruel or drunken husband; but the same result could be obtained by divorce,...