Reddington v. Reddington

• Citation: 59 N.E.2d 775,317 Mass. 760
• Parties: REDDINGTON v. REDDINGTON.
• Decision Date: 01 March 1945
• Court: United States State Supreme Judicial Court of Massachusetts

317 Mass. 760

59 N.E.2d 775

REDDINGTON

v.REDDINGTON.

Supreme Judicial Court of Massachusetts, Norfolk.

March 1, 1945.

Libel for divorce by Ruby L. Reddington against David E. Reddington. From a decree denying her prayer for divorce, libelant and alleged co-respondent appeal.

Decree reversed, and decree for libelant.Appeal from Probate Court, Norfolk County; J. F. Reynolds, Judge.

Before FIELD, C. J., and LUMMUS, QUA, WILKINS, and SPALDING, JJ.

R. E. MacDonald, of Boston, for libelant, appellant.

C. J. McGilvray, of Quincy, for libellee, appellee.

J. J. Kelleher, of Boston, for Andrew Jackson.

LUMMUS, Justice.

This is a libel for divorce for alleged cruel and abusive treatment. The answer contained an allegation that the libelant ‘has spent a great deal of time in the company of a certain man * * * and has been on terms of intimacy with said man,’ whose name was subsequently inserted in the answer by amendment. See Newman v. Newman, 211 Mass. 508, 98 N.E. 507, Ann.Cas.1913B, 672;Sanderson v. Sanderson, 271 Mass. 386, 171 N.E. 476;Costa v. Costa, 295 Mass. 556, 4 N.E.2d 324; G.L. (Ter.Ed.) c. 208, §§ 9, 10, 11, as amended by St. 1943, c. 196. The answer did not charge adultery.

The judge found in substance that the libellee struck the libellant while she was pregnant, knocking her into a fireplace; that he shouted oaths and accusations at her; that he angrily put his hands around her neck, and threatened her; that he struck and kicked her on a number of occasions; and that on more than one occasion he threatened to kill her as well as himself. But the judge, having found these basic facts, did not find whether or not they constituted cruel and abusive treatment.

On the other hand, the judge found that the libellee is ‘a jealous man who loves his wife,’ and that ‘the conduct of the libellant provoked and annoyed’ him. He found that the wife, though not guilty of adultery with the man named, had fallen in love with him, had been much in his company, had kissed and embraced him, and had come to dislike her husband. He found that ‘the libellant has not always been faithful to her marriage contract,’ although that finding is qualified by the finding that ‘the evidence discloses no criminal act of adultery.’ He decided that ‘for reasons of public policy, she is not an innocent party entitled to a decree nisi,’ and entered a decree denying her prayer for divorce. Then he based upon G.L. (Ter.Ed.) c. 208, § 20, a provision in the decree continuing the case on the docket and during the continuance giving the custody of the children to the libelant and ordering the libellee to make payments for the support of the libelant and the children. De Ferrari v. De Ferrari, 220 Mass. 38, 107 N.E. 404;Harrington v. Harrington, 254 Mass. 506, 150 N.E. 296;Malcolm v. Malcolm, 257 Mass. 225, 153 N.E. 461. The libelant and the alleged corespondent appealed.

Divorce from the bond of matrimony in the regular judicial courts was first provided for in this Commonwealth by St. 1785, c. 69, § 3, which named impotency and adultery as causes for such a divorce. After that statute, to say the least, non-judicial divorces were unconstitutional. Shannon v. Shannon, 2 Gray 285;White v. White, 105 Mass. 325, 7 Am.Rep. 526;Sparhawk v. Sparhawk, 116 Mass. 315;Wales v. Wales, 119 Mass. 89. When that statute was enacted, there was in England no divorce from the bond of matrimony except by special Act of Parliament, which in practice could be obtained only for adultery, and seldom for that cause except after a divorce from bed and board, and a verdict against the paramour, if a man, in an action for criminal conversation. The ecclesiastical courts had jurisdiction to grant a divorce from bed and board,¹ on the ground of adultery or cruelty. Shelford, Marriage and Divorce (1841) 373, et seq. Macqueen, Marriage, Divorce and Legitimacy (2d Ed. 1860) 31, et seq. Such a divorce was denied to a libelant guilty of the same offence as that charged in the libel, on the principle of recrimination or compensatio criminis-a set-off of equal guilt. Pratt v. Pratt, 157 Mass. 503, 506, 32 N.E. 747,21 L.R.A. 97; Forster v. Forster, 1 Hagg.Const. 144; Beeby v. Beeby, 1 Hagg.Ecc. 789; Proctor v. Proctor, 2 Hagg.Const. 292; Astley v. Astley, 1 Hagg.Ecc. 714; Cockeedge v. Cockeedge, 1 Rob. (Eccl.) 90; Sopwith v. Sopwith, 2 Sw. & Tr. 160; Anichini v. Anichini, 2 Curt.Eccl. 210; Constantinidi v. Constrantinidi, [1903] P. 246, 258; Green v. Green, 125 Md. 141, 93 A. 400, L.R.A.1915E, 972, Ann.Cas.1917A, 175;Pharr v. Pharr, 223 N.C. 115,25 S.E.2d 115;Studley v. Studley, 129 Neb. 784, 263 N.W. 139.

After the statutes of this Commonwealth provided for judicial divorces, this court assumed, and the Legislature has long acquiesced in the assumption, that the doctrine of recrimination, though not mentioned in the statutes, had been adopted by implication. Robbins v. Robbins, 140 Mass. 528, 5 N.E. 837,54 Am.Rep. 488;Morrison v. Morrison, 142 Mass. 361, 363, 8 N.E. 59,56 Am.Rep. 688;Pratt v. Pratt, 157 Mass. 503, 506, 32 N.E. 747,21 L.R.A. 97. In so far as recrimination depends upon equal guilt, the Legislature has not expressed any opinion as to the comparative gravity of the seven causes for divorce recognized in G.L. (Ter.Ed.) c. 208, §§ 1, 2, which have existed with little if any substantial change ever since St. 1870, c. 404. The law appears to treat all seven causes ad of equal gravity. A libelant guilty of any one of them, not condoned (Cumming v. Cumming, 135 Mass. 386, 46 Am.Rep. 476), is barred from obtaining a divorce for the same cause or any other. Hall v. Hall, 4 Allen 39;Clapp v. Clapp, 97 Mass. 531;Moors v. Moors, 121 Mass. 232;Handy v. Handy, 124 Mass. 394;Cumming v. Cumming, 135 Mass. 386, 389,46 Am.Rep. 476;Morrison v. Morrison, 142 Mass. 361, 362, 8 N.E. 59,56 Am.Rep. 688;Whippen v. Whippen, 147 Mass. 294, 17 N.E. 644;Peirce v. Peirce, 160 Mass. 216, 35 N.E. 462;Watts v. Watts, 160 Mass. 464, 467, 36 N.E. 479,23 L.R.A. 187, 39 Am.St.Rep. 509;Cushman v. Cushman, 194 Mass. 38, 79 N.E. 809. The principle of recrimination has been said to be that ‘If both parties have a right to divorce, neither party has.’ Hoffman v. Hoffman, 43 Mo. 547, 549.Hatfield v. Hatfield, 113 W.Va. 135, 140, 167 S.E. 89. The fact that a marriage has proved so unsuccessful that both spouses have broken their vows by giving cause for divorce, has the effect of riveting the legal bond and making it indissoluble except by death.²

No conduct of a libelant who proves a cause for divorce will bar a decree, under the doctrine of recrimination, unless it amounts to a statutory cause for divorce.³ A judge has no discretion in granting or denying a divorce, but must take the statute as his only compass and chart. Waterhouse v. Waterhouse, 225 Mass. 228, 114 N.E. 283;Mitchell v. Mitchell, 312 Mass. 165, 168, 43 N.E.2d 779. A divorce is not to be denied merely because the conduct of the libelant appears to the court to deserve censure. In the absence of some defence recognized by law, a libellant who proves a statutory cause for divorce is entitled to a decree, unless shown to have been guilty of a statutory cause for divorce on his or her own part. ⁴Morrison v. Morrison, 142 Mass. 361, 362, 8 N.E. 59,56 Am.Rep. 688;Walker v. Walker, 172 Mass. 82, 51 N.E. 455;Cushman v. Cushman, 194 Mass. 38, 79 N.E. 809;Waterhouse v. Waterhouse, 225 Mass. 228, 114 N.E. 283;Krasnow v. Krasnow, 280 Mass. 252, 182 N.E. 338;Mooney v. Mooney, Mass., 58 N.E.2d 748. Nothing to the contrary was intended in Eldridge v. Eldridge, 278 Mass. 309, 313, 180 N.E. 137, or Holbrook v. Holbrook, 313 Mass. 163, 164, 46 N.E.2d 518, in speaking of the opening of a decree for divorce. In the present case, the allegation quoted from the answer, though proved, constituted no defence to the libel.

The absence from our divorce practice of any discretionary right to grant or deny divorce makes for uniformity of justice. In respect to divorce wide cleaveges in opinion exist. Many deem divorce from the bond of matrimony for any cause an unmixed evil. Many others, though regretting the occasion for divorce, regard it as a beneficent remedy, and differ only as to its proper scope. The divorce law has to be administered by judges whose personal opinions vary as widely as do those of other people. The public policy of the Commonwealth as to divorce is to be found only in the statutes. The seven statutory causes for divorce do not include all the matrimonial faults that may and often do disrupt married life. Examples of others, not causes for divorce, are quarrelsomeness, unkindness or faultfinding falling short of cruel and abusive treatment; habits of intoxication not gross and confirmed (Callan v. Callan, 280 Mass. 37, 40, 181 N.E. 736); such association with persons of the opposite sex as arouses fear of loss of affection or suspicion of adultery or of desire for adultery; undue strictness or laxity in training children; jealousy; gambling; extravagance; parsimony; slovenliness in person or in housekeeping; laziness; want of ambition; lack of companionship; and cold indifference. Standards of conduct in respect to some of these matters vary with the period, the place, and the training, environment and characteristics of persons. If every judge, in granting or refusing a divorce, were entitled to exercise discretion according to his own ideas of propriety or of public policy, the judicial branch of government, with respect to divorce, would become a government of men and not of laws.

Since appellate practice in divorce cases originating in the Probate Courts follows the practice in equity (Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561; compare Watts v. Watts, 312 Mass. 442, 45 N.E.2d 273), all questions of fact are open on these appeals. The judge did not decide whether on the basic facts found by him the libellee was guilty of cruel and abusive treatment, but we may draw the inference ourselves. Ryder v. Donovan, 282...