Stoneburner v. Stoneburner

Decision Date27 December 1905
PartiesSTONEBURNER v. STONEBURNER
CourtIdaho Supreme Court

DIVORCE-DESERTION-RECRIMINATION-RECONCILIATION.

1. Divorce is a remedy for the innocent and will not be granted to one who is shown to be guilty of a similar offense against the marital contract as that of which he or she complains.

2. The defense or recrimination in divorce suits is recognized and adopted by sections 2464 and 2466 of the Revised Statutes and constitutes a complete bar to a recovery where the defendant shows a valid existing cause of action against the plaintiff.

3. As to whether or not a husband can, while himself a deserter of his wife, change the domicile to a foreign jurisdiction, and after causing the wife to go to such jurisdiction, in defending an action prosecuted by him, and there solicit her to come and live with him in the new home and thereby convert her into a deserter of her husband, considered.

4. In cases of desertion the offending party may at any time return and offer reconciliation, and the injured spouse cannot reject such offer if made prior to the expiration of the one year period during which time the desertion ripens into a cause of action, but if made after the right of action has accrued, the injured spouse may reject such offer without thereby assuming the attitude of an offender against the marital contract.

5. Evidence examined and considered and held insufficient to warrant a decree of divorce in favor of the plaintiff.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Honorable Edgar C. Steele, Judge.

Action by plaintiff for a decree of divorce on the grounds of desertion. Denials and defense of recrimination on grounds of desertion. Judgment for plaintiff and defendant appeals. Reversed.

Reversed and remanded, with directions.

Eugene O'Neill, for Appellant.

A court should dismiss a case when such evidence is given on the ground that it will not aid a wrongdoer, and if it appears that both are in fault, it will leave them where it finds them, is elementary law. (2 Bishop on Marriage and Divorce sec. 87; Conant v. Conant, 10 Cal. 249, 70 Am. Dec 717; Rev. Stats., sec. 4354, subds. 4, 5; Church v. Church, 16 R. I. 668, 19 A. 244, 7 L. R. A. 385; Day v. Day (Kan.), 80 P. 975; Redington v. Redington, 2 Colo. App. 8, 29 P. 811.) For the rule in England, when the plaintiff in his evidence shows misconduct, see Timmings v. Timmings, 3 Hagg. Ecc. 76, 5 Eng. Ecc. Rep. 22, cited in Redington v. Redington, 2 Colo. App. 131, 29 P. 812, Hoff v. Hoff, 48 Mich. 281, 12 N.W. 160; Pease v. Pease, 72 Wis. 139, 39 N.W. 133, 134; Hubbard v. Hubbard, 74 Wis. 650, 43 N.W. 655, 6 L. R. A. 58; Otway v. Otway, L. R. 13 Prob. Div. 141; Clapp v. Clapp, 97 Mass. 531; Handy v. Handy, 124 Mass. 394; Wheeler v. Wheeler, 18 Or. 261, 24 P. 900; Hale v. Hale, 47 Tex. 336, 26 Am. Dec. 294; Mattox v. Mattox, 2 Ohio 233, 15 Am. Dec. 547; Nagle v. Nagel, 12 Mo. 53; Morrison v. Morrison, 62 Mo.App. 299; Fisher v. Fisher, 93 Md. 298, 48 A. 833; Tracey v. Tracey (N. J.), 43 A. 713; 2 Kent's Commentaries, 100; 14 Cyc. 648, and authorities there cited; Tracey v. Tracey (N. J.), 43 A. 713, 715. Moreover, it affirmatively appears from the evidence that the time the plaintiff pretends to have asked defendant to live with him as his wife he had both deserted and abandoned without cause and had failed to provide for her for more than the statutory time and she was not obliged or required under the law to return to and live with plaintiff no matter what the invitation extended to her. This is the law on that proposition. If it were not, all right under the divorce statute could be ended by asking the injured party to live with or condone the offense of the wrongdoer. The request comes too late when the offender's wrongdoing has ripened into a cause for a divorce against him. (Benkert v. Benkert, 32 Cal. 469, 472; Coe v. Coe (N. J., Feb. 1905), 59 A. 1059.) The decision of the court is against law, as not all the issues raised by the pleadings are passed upon or found by the court. This is ground for the reversal of the judgment. (Cassidy v. Cassidy, 63 Cal. 352; Roeding v. Perasso, 63 Cal. 515; Dunn v. Dunn, 62 Cal. 176-178; Lang v. Specht, 62 Cal. 145; Knight v. Roche, 56 Cal. 15, 17, 18; Soto v. Irvine, 60 Cal. 436-438; Brown v. Burbank, 59 Cal. 535-538; First Nat. Bank v. Williams, 2 Idaho 670-675, 23 P. 552; Hayne on New Trial and Appeal, pp. 280, 281, secs. 99, 239, 240.) Neither language unbecoming or acts that might be considered indecorous, count for anything on a proposition of cruelty. It must be alleged, and the acts must be both alleged and proven to have been such as to affect the health or to cause great mental suffering. (Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 615.) Also holding that the plaintiff's conduct must be free from blame. (Powelson v. Powelson, 22 Cal. 359; Waldron v. Waldron, 85 Cal. 251, 24 P. 649, 858, 9 L. R. A. 487; Smith v. Smith, 124 Cal. 651, 57 P. 573. See also, as to abusive or improper language, Lockwood v. Lockwood, 43 Mich. 230, 5 N.W. 96; Johnson v. Johnson, 49 Mich. 639, 14 N.W. 670; Gleason v. Gleason, 16 Neb. 15, 19 N.W. 784; Schoessow v. Schoessow, 83 Wis. 553, 53 N.W. 856.)

George W. Tannahill, for Respondent.

Recrimination cannot be pleaded as a defense unless the desertion alleged in the complaint is admitted by the answer. (Eggerth v. Eggerth, 15 Or. 626, 16 P. 650; Hoffman v. Hoffman, 43 Mo. 547; Warner v. Warner, 54 Mich. 492, 20 N.W. 557, and cases cited. Doolittle v. Doolittle, 78 Iowa 691, 43 N.W. 616, 6 L. R. A. 187; Dennison v. Dennison, 4 Wash. 705, 30 P. 1100; Reddington v. Reddington, 2 Colo. App. 8, 29 P. 811; Hoff v. Hoff, 48 Mich. 281, 12 N.W. 160.) The defendant was responsible for the separation and cannot complain. (Hardin v. Hardin, 17 Ala. 250, 52 Am. Dec. 170; Schichtl v. Schichtl, 88 Iowa 210, 55 N.W. 309; Day v. Day, 84 Iowa 221, 50 N.W. 979; Doolittle v. Doolittle, 78 Iowa 691, 43 N.W. 616, 6 L. R. A. 187; Lea v. Lea, 99 Mass. 493, 96 Am. Dec. 772, and note; Stocking v. Stocking, 76 Minn. 292, 79 N.W. 172; Neff v. Neff, 20 Mo.App. 182; Kikel v. Kikel, 25 Neb. 256, 41 N.W. 180.) The absence of findings of fact from the roll does not establish that error was committed. Under the rule referred to, we cannot presume that the findings were not waived; the necessary intendment in support of the judgment is the other way. We cite further: Roby v. Roby, 10 Idaho 139, 77 P. 215; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Gamble v. Dunwell, 1 Idaho 268; Hazard v. Cole, 1 Idaho 276; Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; McGuire v. Lamb, 2 Idaho 378, 17 P. 749. The court found, in the case at bar, that all the material allegations in the complaint are supported by the Revised Statutes of Idaho of 1887, sections 4420, 4421. If the evidence is conflicting and the findings are approved by the trial court they will not be disturbed on appeal. (Creedon v. Patrick, 3 Neb. (unofficial) 459, 91 N.W. 872; Rector etc. Mt. Calvary Church v. Albers, 174 Mo. 331, 73 S.W. 508.)

AILSHIE, J., SULLIVAN, J. Stockslager, C. J., Sullivan, J., and Ailshie, J., concurring.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

This action was instituted by the respondent in the district court February 16, 1903, praying for a decree of divorce. The defendant, who is appellant in this court, answered denying the charge of desertion and as a separate defense alleged and charged the plaintiff with a violation of the marital contract in that he, without just or any cause therefor, deserted and abandoned her on the eighth day of June, 1896, at Berne, in the state of Indiana. After the issues were made up the district court referred the case to a referee to take the testimony and report the same to the court. After the evidence was reported and the case was argued and submitted the court made findings of fact and thereupon entered judgment in favor of the plaintiff and against the defendant. The trial court found upon all the material issues of the plaintiff's complaint, but failed to find on the issues raised by the separate defense interposed by the defendant, wherein the plaintiff was charged with desertion. This failure to make findings on the issues presented by defendant's separate defense which was pleaded under sections 2464 and 2466 of the Revised Statutes, if true, would have constituted a complete defense to the plaintiff's cause of action and is one of the errors assigned on this appeal. It was clearly the duty of the court to make findings on this issue the same as on the issue presented by the plaintiff's complaint. Section 2464, supra, provides that "divorces must be denied upon showing . . . . recrimination." Section 2466, supra, provides that "Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce." The general finding, therefore, "that all the material allegations and denials of defendant's answer in conflict with the foregoing findings are found to be unsupported by the evidence and untrue," is not a sufficiently specific finding upon the issues raised by a recriminatory defense. The appellant places her chief contention, however, in this court, upon the fact that the evidence was insufficient to support findings and a decree in favor of the plaintiff and that the uncontradicted evidence in the case supports the allegations of appellant's separate defense. In this case no witnesses were produced in the district court and the district judge did not see or hear any of the witnesses testify in the case. In this condition of the case, under the rule heretofore established in this court, it becomes our duty...

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