Young v. Young

Citation178 S.W.2d 994,207 Ark. 36
Decision Date27 March 1944
Docket Number4-7306
PartiesYoung v. Young
CourtSupreme Court of Arkansas

Appeal from Craighead Chancery Court, Western District; Francis Cherry, Chancellor.

Affirmed.

Dowell & Dowell and Archer Wheatley, for appellant.

Raymond O. Horn and Arthur L. Adams, for appellee.

McFaddin Justice. The Chief Justice concurs in part. Robins, J dissents.

OPINION

McFaddin, Justice.

The parties were married in 1912 and lived together as husband and wife until sometime after 1939. Appellee (the husband) filed suit for divorce alleging that he had lived separate and apart from his wife for three consecutive years without cohabitation. Appellant (the wife) resisted the divorce on three grounds, being: (1) denial of bona fide residence in Arkansas of the husband; (2) cohabitation within three years, and (3) recrimination by the husband. The chancery court entered a decree awarding the husband a divorce; and from that decree comes this appeal raising the issues hereafter mentioned.

I. Bona Fide Residence in Arkansas. The complaint was filed on March 4, 1943, and our statute (§ 4386, Pope's Digest) requires the plaintiff to prove "a residence in the state for three months next before the final judgment granting divorce in the action and a residence of two months next before the commencement of the action." To prove bona fide residence, the appellant testified that he came to Craighead county, Arkansas, November 29, 1941, and had resided there continuously since said date, except for trips to Memphis to see a physician and trips to Illinois and Texas to look after his properties in those states. He testified at various times, the last being two days before the decree; and he made good his proof of bona fide intent to establish a residence in Arkansas, because he showed, inter alia, that: (a) he registered for the United States Selective Service before the local draft board at Jonesboro, Arkansas; (b) his food rationing book and his gasoline rationing book (under the war measures of the United States Government) was each issued by the Ration Board of Craighead county, Arkansas; (c) he obtained automobile and driver's license for both 1942 and 1943 in Jonesboro, Arkansas, and stated his residence at those times to be Jonesboro, Arkansas; (d) he assessed and paid 1942 property taxes at Jonesboro, Arkansas; (e) he assessed and paid a 1942 poll tax at Jonesboro, Arkansas; and (f) he showed rent receipts on apartments in Jonesboro, Arkansas, from November, 1941, to the time of the trial in October, 1943. These items mentioned, together with other facts in the record, afford ample proof of a bona fide intent to establish residence in Arkansas; and the testimony of appellant's witnesses did not destroy the preponderance in favor of appellee on this matter of bona fide residence.

II. Cohabitation Within Three Years. The husband filed this suit under subdivision seven of § 2 of Act 20 of 1939, which makes, as ground for divorce, the fact that the plaintiff has lived separate and apart from the defendant for three consecutive years without cohabitation. The husband testified that he left his wife in February, 1940; and he was supported by other witnesses. The wife, who testified July 27, 1943, said it had only been two and one-half years, at the time of testifying, since the husband ceased to occupy the marital bed. She was supported by some of their children in this testimony; but she was unable to fix any definite date. When asked to fix the last night Mr. Young stayed in the home with her she said: "I think he was there since my daughter, Evelyn, was married. Evelyn was married three years in April and I think he was out there since that time." The uncertainty of the date is mentioned, because there are documents in the record which, with other evidence, place the preponderance with the husband on this question. We refer to these documents now:

On February 14, 1941, in the circuit court of Marion county, Illinois, the appellant (wife) filed a suit against her husband (appellee here) for separate maintenance; and in this she alleged, inter alia:

"That on April 12, 1913, the plaintiff was lawfully joined in marriage with the said defendant and thereafter maintained conjugal relations with him until February, 1940. . . ."

She further alleged:

"That in or about the month of February, 1940, said defendant, without any provocation or justification, quitted and abandoned the matrimonial home heretofore maintained with plaintiff . . . and from said date, although often requested to do so, has refused to reside with plaintiff."

And again she alleged:

"That in the month of February, 1940, defendant wilfully deserted and absented himself from plaintiff completely without any reason, just cause or provocation and from that date hitherto has persisted in such desertion and plaintiff, without fault on her part, is now living separate and apart from the defendant."

Thus, in three specific allegations in the complaint for separate maintenance, Mrs. Young fixed the date of separation as February, 1940; and elsewhere in the complaint (filed February, 1941) alleged that the separation had existed more than for one year. On that complaint, in the separate maintenance suit, a property agreement was made and a decree entered which makes it unnecessary to consider property matters in this divorce case. But the fact remains that in February, 1941, Mrs. Young, through her attorneys, had alleged that the date of separation was February, 1940. The facts were more recent and the dates more easily recalled in 1941 than when she testified in the case at bar in 1943. In the case at bar, when she was asked about the allegations in the complaint fixing the date of separation at 1940, this occurred:

"Q. Now, Mrs. Young, did Mr. Pfaff (her attorney in the separate maintenance suit) read this complaint to you before it was filed? A. I suppose he did. I guess he did but I don't remember."

So without reviewing all the evidence on this point we conclude that the decree of the chancery court finding that the separation began February, 1940, is supported by the preponderance of the evidence.

III. Recrimination. In her answer herein Mrs. Young stated that Mr. Young had been living in open adultery with a paramour, and therefore the court of chancery should be closed to him under the equitable maxim, "He who comes into equity must come with clean hands," or expressed another way, "He that hath committed iniquity shall not have equity." This defense, of refusing relief to the guilty in a divorce suit, is known in our jurisprudence as the defense of recrimination; and under that name we will refer to it in this opinion. Legal historians trace its legal inception to the Roman law wherein it was called "compensatio criminis." 27 C. J. S., p. 624. On motion of Mr. Young the chancery court ordered the defense of recrimination stricken from the answer, thereby holding that recrimination was no defense in a divorce action brought under the three-year separation statute. That ruling is now assailed by Mrs. Young.

The divorce statute here involved is subdivision seven of § 2 of Act 20 of 1939 and reads: "Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of property rights of the parties and the question of alimony." (Italics our own.) It will be observed that in the italicized portion of the act the Legislature has eliminated all consideration of which spouse is the guilty party, except in settling property and alimony rights. Since these rights are not involved in this case, the result here is that the court is forbidden to consider which is the guilty party. In other words, recrimination is abolished as a defense under this three-year separation statute. Section 4389 of Pope's Digest recognizes recrimination as a defense, and we have sustained the defense of recrimination in cases involving other grounds of divorce. Wilson v. Wilson, 128 Ark. 110, 193 S.W. 504; Landphair v. Landphair, 112 Ark. 608, 165 S.W. 960; Malone v. Malone, 76 Ark. 28, 88 S.W. 840; Cate v. Cate, 53 Ark. 484, 14 S.W. 675; 19 C. J. 93; West's Ark. Digest "Divorce," Key No. 52 to 55.) But under this three-year separation statute recrimination is abolished as a defense against that particular ground of divorce, for the act, as copied above, specifically says that the question of who is the injured party is not to be considered.

The Legislature -- not the Court -- determines the grounds for, and the defenses against, divorce: because divorce is always regulated by statute. In the case of Bowman v. Worthington, 24 Ark. 522, this court said: "The circuit courts of this state, sitting as courts of chancery, have jurisdiction of all cases of divorce and alimony by virtue of the statute. The court, in cases of this kind, must look to and be governed by the statute; it has no other powers than those expressly conferred, and while it may sit as a court of chancery, it is not to be understood as exercising inherent chancery powers, but as a court limited and guided by express statutory provisions, over a subject-matter never belonging to chancery jurisdiction. It is then the circuit court, invested expressly by statute with authority to investigate and try cases of this kind by rules of proceeding adopted and practiced by courts of chancery."

And in the case of Ex parte Helmert, 103 Ark. 571, 147 S.W. 1143, this court said: "Matters pertaining to...

To continue reading

Request your trial
28 cases
  • Reddington v. Reddington
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 1 Marzo 1945
    ...v. Brown, (1940) Sect.L.T. 230. Herod v. Herod, [1939] P. 11, 31. Vanderhuff v. Vanderhuff, App.D.C., 144 F.2d 509;Young v. Young, Ark., 178 S.W.2d 994, 152 A.L.R. 327;Flagg v. Flagg, 192 Wash. 679, 74 P.2d 189;Weidert v. Weidert, 106 Wash. 410, 180 P. 135; Compare McMillen v. McMillen, 113......
  • Hatcher v. Hatcher
    • United States
    • Arkansas Supreme Court
    • 7 Mayo 1979
    ...Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975); Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). We held in Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944): The Legislature not the courts determines the grounds for, the defenses against, divorce; because divorce is always regula......
  • McDougal v. McDougal, 7286
    • United States
    • Missouri Court of Appeals
    • 2 Mayo 1955
    ...for three consecutive years without cohabitation. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098, 1100(1, 2); Young v. Young, 207 Ark. 36, 178 S.W.2d 994, 152 A.L.R. 327; Larsen v. Larsen, 207 Ark. 543, 181 S.W.2d 683; Warren v. Warren, 214 Ark. 379, 216 S.W.2d 398, 399(2).2 Although in Mis......
  • Young v. Young
    • United States
    • Arkansas Supreme Court
    • 27 Marzo 1944
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT