York v. York

• Decision Date: 17 June 1955
• Citation: 280 S.W.2d 553
• Parties: Margaret Elma YORK, Appellant, v. Gifford Thomas YORK, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 553

280 S.W.2d 553

Margaret Elma YORK, Appellant, v. Gifford Thomas YORK, Appellee.

Court of Appeals of Kentucky.

June 17, 1955.

George R. Smith, Lexington, for appellant.

No appearance for appellee.

MOREMEN, Judge.

This is an appeal from a judgment dismissing appellant Margaret York's complaint for divorce in which she had alleged that the appellee Gifford York had treated her in a cruel and inhuman manner. She also had requested custody of their only child who was then 12 years of age. Appellee's answer consisted of a traverse and counterclaim based upon the same statutory ground. The case came on to be heard before the Chancellor; the parties had introduced witnesses in their behalf; the circuit court now describes what then happened: 'After Mr. York, the defendant, had finished testimony I took Thomas, the son of the parties into chambers and asked him a few questions as may be found in my Findings of Facts in the Record. The child stated to me that his father and mother were at the time of the hearing living in and occupying the same apartment which consisted of living-room, bedroom, bath and kitchen. He stated that his mother had been sleeping on a couch in the living-room and his father occupied the bedroom. Upon hearing this I immediately informed the attorneys that we could not proceed with the trial of the case as the parties were living together in the same quarters and that under these circumstances the Court could not entertain further jurisdiction in the case. The attorneys conceded the parties were, together with their child, sharing the same apartment but that the husband and wife were not sharing the same bed, but using separate but connecting rooms for sleeping.'

The above holding squarely presents to this court the question as to whether or not it is necessary in all cases for the parties to be living in separate, distinct establishments before a suit for divorce may be instituted or granted.

In one type of divorce case where the ground alleged is 'Living apart without any cohabitation for five consecutive years next before application' KRS 403.020(b), it has been well settled by the decisions that a complete physical separation of living quarters be had, this court having said that the parties must live under separate roofs. See Ratliff v. Ratliff, 312 Ky. 450, 227 S.W.2d 989; Gates v. Gates, 192 Ky. 253, 232 S.W. 378; McDaniel v. McDaniel, 292 Ky. 56, 165 S.W.2d 966; and Colvin v. Colvin, 300 Ky. 781, 190 S.W.2d 473. There seems to be a sound basis for this condition precedent to a divorce on that particular ground because the 'living apart' subsection is in a way unique because the question of like fault is not involved. The legislature seemed to have intended that in cases where the parties have actually broken up their home and remain apart for this long period of time the courts may sever the marital tie regardless of fault or recrimination. The gravamen of such actions is 'Living apart without any cohabitation', and we must assign to that phrase the meaning which its reading spontaneously suggests. With the possible exception of abandonment, no other ground listed under KRS 403.020 requires by direct words that the couple occupy separate dwelling places. However, in the cases relied upon by the trial court--Hoffman v. Hoffman, Ky., 1899, 51 S.W. 176; and Freeman v Freeman, Ky., 1890, 13 S.W. 246, it was indicated that in suits involving the annulment of marriage, the parties must live apart during the pendency of the action. We will not enter into a collateral discussion of annulment suits other than to suggest that the theory of law applicable to annulment of marriage is different in many respects from the law of divorce.

In the absence of an express mandate of the statute requiring persons to live apart pending an action for divorce, the only possible basis for such a requirement would be that the act of living under the same roof amounted to condonation. This doctrine, which may be defined as forgiveness express or implied by one spouse for a breach of marital duty by the other, had its origin in England in the ecclesiastical courts and, while the ecclesiastical law has not been adopted in this country, we have accepted it, at least to a degree, in regard to divorce matters, 17 Am.Jur., 195, and since its acceptance, most of the law in this country has been concerned little with express forgiveness, but is devoted to condonation by the acts of the parties, and particularly by the sexual act. We have reached this point, it seems, by piling questionable inferences upon equally untrustworthy deductions. The first inference seems to be that accessibility amounts to consummation and when people live under the same roof, they cohabit. The next inference is that the sexual act constitutes a blanket forgiveness of all conjugal unkindness--that somewhere in the processes of the ritual, all is forgiven. When this theory is applied to certain grounds for divorce, such as cruel and inhuman treatment, it seems to be a strange mutation on the law. In other branches, such as contracts other than the marriage contract, we are very careful to protect parties from coercion, duress and undue influence, but here the statute demands that a spouse submit to acts of cruelty and inhumanity for a half year before divorce may be granted. Yet it has been suggested in some opinions that submission to amorous advances--when a person has been so mistreated that even his peace and happiness have been permanently destroyed--ipso facto condones all cruelty.

We do not believe it is cynical to suggest that complete rapport is not always reached. It is not unbelievable that submission is had as a convenient avoidance of imminent trouble. Similarly in criminal cases, such as rape, the courts have taken a sympathetic attitude towards the person whose will to resist has been destroyed by force and mistreatment.

The textbook writers and the court, however, have made some distinction between various offenses; have classified them as being either continuing or non-continuing injuries, and have, rather strictly we think, applied the doctrine of condonation to all so-called non-continuing causes of divorce which, in theory, may be forgotten or forgiven. Into this category falls such marital misconduct as adultery, lewd conduct, prenuptial unchastity and similar aberrations.

In the case at bar the offense charged--cruel and inhuman treatment--is classified as a continuing offense. However, this court did hold in Buckley v. Buckley, 214 Ky. 566, 283 S.W. 1031, that the husband's misconduct, consisting of cruel acts, was condoned by the wife when she returned to live with him after a separation. This rule apparently is not at variance with the one applied in a number of other jurisdictions. See cases annotated in 31 A.L.R.2d at page 134. It is not plain in the Buckley case whether or not the wife returned to her husband under the...