Stokes v. Stokes

• Decision Date: 31 May 1823
• Parties: STOKES v. STOKES.
• Court: Missouri Supreme Court

1 Mo. 320

STOKES

v.STOKES.

Supreme Court of Missouri.

May Term, 1823.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

PETTIBONE, J.

Marianne Stokes filed her bill in the court below, for a divorce a mensa et thoro, from her husband, William Stokes, and for alimony. The causes alleged in the bill for the divorce, are, ill-usage, abandonment and adultery; to which there was a demurrer, which was overruled; than an answer, which was stricken out by the court; and then the plea of not guiltv, on which the parties went to trial. The ill-usage has not been found by the jury. The finding of the jury, as to the other causes, is in the following words: “That the said William Stokes and Marianne Stokes were married in the year 1802, and that they separated in 1807, by consent; and that the said William Stokes abandoned his wife in England, at the city of London, and at the town of St. Louis, in the State of Missouri; and that the said William Stokes committed adultery in England, at the city of London, from the year 1809 to 1818, and at St. Louis, State of Missouri, since his arrival in this place.” The abandonment is not sufficiently charged in the bill. It must be “a willful and malicious desertion and absence, without a reasonable cause.” It appears, by the complainant's own showing, that she and her husband separated by consent, in 1807, and that they never lived together since; that, in 1816, she left the neighborhood of her husband, in England, and went over to France; that, while she was there, her husband, in the year 1818, removed from England to the United States, without giving her any notice of his removal, or making any provision for her support. So long as she lived separate from her husband, by consent, he could not be said to abandon her, within the meaning of the act. The finding of the jury, on that head, is also too indefinite as to the time or kind of abandonment.

The adultery is the only cause remaining. The bill states, “that, subsequent to the separation of the parties, by consent, the said William received into his house a woman, named Ann Smith, as his mistress, and that she continued to live with him as such until his departure from England.” This is not a sufficient charge of adultery in England. It is only stating the evidence from which the fact might be inferred. But grant it to be sufficient, and that the finding of the jury on this part of the case is good, which I do not admit, it then presents the question, whether adultery in England, committed under the circumstances which this case presents, ought to be regarded as a cause of divorce here. The parties were both domiciled in England, when and where the offense was committed. The complainant was cognizant of it for years before the removal of the defendant to this country.

The laws of England offered her redress; she was free to seek it there, if she wished; she was under no coercion of her husband, for she lived separate from him; she was not forced away by him, before she could have an opportunity to make her complaints. If, for nine years, she could behold, without complaining, the open adultery and profligacy of her husband, I see no reason why the courts of this country should, at this late hour, be called upon to interfere in her behalf. It is against good policy and good morals to do it. Investigating cases of this kind leaves a bad impression upon the public mind, and has a tendency to deprave the public morals, and ought not to be resorted to, only where the due administration of justice imperiously requires it. Every offense, committed within our own country, against the morals and manners of society, we are bound to notice and punish, whenever we can get an opportunity. But it is carrying our comity very far, to say that we will investigate the adulteries and family quarrels which took place in England, perhaps ten years ago, when the parties had an opportunity of applying to their own courts. I consider the adultery in England as waived by the conduct of the complainant: see 1 Johns. Chan. Rep. 490. And I am unwilling to establish the principle that parties may lie by in their own country, under injuries of this kind, for years, and then come here and ask us for the redress which they might, and ought to, have obtained there.

As to adultery being a good cause for divorce, a mensa et thoro, I have no doubt. In the ecclesiastical courts in England, they could only be divorced from bed and board for that cause. Our statute, so far from prohibiting such a divorce, for this cause, expressly says, that it shall and may be lawful for the injured and innocent persons to obtain a divorce, not only from bed and board, but also from the bonds of matrimony itself, leaving it at the option of the party which kind of divorce to take. I am, also, clearly of opinion, that a separation, by consent, is no license for the commission of adultery, and that adultery, committed after such a separation, is a good cause for divorce.

The next question, then, is, whether the adultery which is found to have been committed in Missouri is sufficient to warrant the decree for the divorce which was made in the court below. In the first place, the adultery is not sufficiently charged in the bill. In the second place, it is not sufficiently found by the...