[411]*411MR. JUSTICE ANDERSON:
The plaintiff and defendant to this action obtained divorces from their immediate former respective spouses and on April 17, 1948, at Las Vegas, Nevada, entered into marriage.
After what could be described as a truly stormy marital relationship, the plaintiff Julia Reed brought this action against the defendant Fred C. Reed and it was alleged that she had been a resident of Montana for more than one year immediately preceding the commencement of this action, and that defendant disregarding his duties as a husband, for more than one year last past, has done all sorts of things contrary to that expected in a marital relationship.
In all respects plaintiff’s complaint was broad enough under the statute to grant an absolute divorce provided of course that proof followed. However the complaint contained only prayers for permanent alimony in the amount of $.1,000 per month, attorney’s fees, injunctive relief and security that she may live separate and apart from the defendant and for such further relief as to the court may seem just and equitable and no specific prayer was made for an absolute divorce.
Defendant’s answer to the complaint admitted the marriage, the residence, and then cross-complained whereby he sought an absolute divorce from the plaintiff.
After a lengthy hearing the district judge below entered a decree granting to the plaintiff an absolute divorce along with certain allowances to be paid monthly by the defendant for approximately five years and certain other relief was granted which is of no importance to this appeal. From the judgment and decree the plaintiff appeals. The questions raised by her appeal are as follows:
1. Does the court as a matter of law have the right to grant an absolute divorce in a suit wherein the plaintiff sought separate maintenance only?
2. "What is the propriety of a monthly award for approximately five years for the support and maintenance of plaintiff ?
[412]*4123. Tbe propriety of tbe court in permitting over objections testimony concerning the relationship between the parties hereto prior to their marriage.
There are no minor children, nor any children, involved in the questioned marital status. Thus there is but the disposition to be made of the marital status between the litigants themselves. A study of the evidence produced at the trial proves the seriousness and finality of the marital rupture. A reconciliation would be, as the evidence shows, impossible.
Michigan and Tennessee have by statute granted to the court authority to use its sound discretion where a divorce from bed and board is prayed; the appellate courts in those states have sustained rulings by the lower court wherein absolute divorce was granted when the complaint asked for a divorce from bed and board. Lingner v. Lingner, 165 Tenn. 525, 56 S.W. (2d) 749, and Plantt v. Plantt, 28 Tenn. App. 79, 186 S.W. (2d) 338; Ratcliffe v. Ratcliffe, 308 Mich. 488, 14 N.W. (2d) 127. No such discretion is allowed by the Montana statutes.
However as is stated in 3 Nelson on Divorce, 2nd Ed., section 32.39 pages 409, 410: ‘ ‘ Contrary to the rule governing divorce actions in some jurisdictions, that absolute divorce may be decreed though the plaintiff ask only for a divorce from bed and board, if a wife, not desiring a divorce, proceeds for separate maintenance the court may not decree a divorce, but is bound to decree separate maintenance only * * * ’ ’.
It would be difficult indeed to find better language contained in any of the eases which would be more apropos to the circumstances as they were presented to us in the instant appeal than in the case of Cawley v. Cawley, 59 Utah 80, 202 Pac. 10, 11, where it is said: 1 ‘ While, upon the other hand, the defendant, by an abundance of evidence, proved that the plaintiff, in view of her condition, was guilty of exceedingly harsh conduct and of cruel treatment, causing her much physical pain and much mental anguish which would have entitled her to a divorce, yet, in view that she in her counterclaim did not pray for a divorce, and at the trial frankly conceded, giving [413]*413her reasons therefor, that she did not desire to be divorced from the plaintiff, the court was bound to respect her wishes in the matter and limit the relief in her behalf to separate maintenance. While it may be true, as plaintiff’s counsel with much vigor contends, that the evidence is replete with facts from which it must be clear to all that the plaintiff and the defendant are mismated and cannot continue their marital relations, and, for that reason, in the long run, it would be better for society, better for the parties, and better for all concerned that they be divorced and their unfortunate misalliance be ended, yet, in view of the fact that the plaintiff is the transgressor and the defendant is compelled to live separate and apart from him without fault on her part, and in view that she declines to be divorced, although entitled to a divorce, she cannot be coerced into assuming a status she declines to enter, namely, that of a divorce. The district court was therefore powerless to grant plaintiff’s request, and, for the same reason, we are powerless to do so.”
The plaintiff’s action was for separate maintenance and not divorce as is evidenced by her complaint and in her testimony she indicated definitely that she did not desire a divorce and the lower court was in error in forcing the plaintiff to accept a form of relief which she did not seek and which she did not desire.
Section 21-136, R.C.M. 1947, reads as follows: “Though judgment of divorce is denied, the court may, in its discretion, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband.” This statute seems definitely to point out the scope of the courts’ authority and nowhere in the Montana Civil Code can there be found any authority wherein the courts are permitted, by statute, to grant a divorce where only separate maintenance is sought. The general rule of statutory construction is applicable, it being that where there is an express mention of certain authority, the mentioning of it implies the exclusion of any other. Compare Stephens v. City of Great Falls, 119 Mont. 368, [414]*414175 Pac. (2d) 408; 82 C.J.S., Statutes, section 333, paragraphs 666 to 670; 50 Am. Jur., Statutes, sections 244, 245, 246, paragraphs 238 to 241.
An examination of section 21-103, R.C.M. 1947, discloses that absolute divorces, or separations from bed and board or decrees for separate maintenance, may be granted for certain reasons, but there is nothing in that section which suggests the court may grant relief beyond that which is sought for by the prevailing party.
Respondent contends that the cases of Weil v. Weil, 37 Cal. (2d) 770, 236 Pac. (2d) 159, and Greenwood v. Greenwood, 101 Cal. App. 736, 282, Pac. 433, are persuasive in support of the legal premises that he advances. However in both of those cases the wife consented to amend the prayer of her complaint and thereby consented to a decree being entered for absolute divorce.
Consistent with the overwhelming weight of authority we hold that the district court has no power to grant relief in an action wherein separate maintenance is sought by granting an absolute divorce.
The apparent policy of the legislature in adopting R.C.M.
Free access — add to your briefcase to read the full text and ask questions with AI
[411]*411MR. JUSTICE ANDERSON:
The plaintiff and defendant to this action obtained divorces from their immediate former respective spouses and on April 17, 1948, at Las Vegas, Nevada, entered into marriage.
After what could be described as a truly stormy marital relationship, the plaintiff Julia Reed brought this action against the defendant Fred C. Reed and it was alleged that she had been a resident of Montana for more than one year immediately preceding the commencement of this action, and that defendant disregarding his duties as a husband, for more than one year last past, has done all sorts of things contrary to that expected in a marital relationship.
In all respects plaintiff’s complaint was broad enough under the statute to grant an absolute divorce provided of course that proof followed. However the complaint contained only prayers for permanent alimony in the amount of $.1,000 per month, attorney’s fees, injunctive relief and security that she may live separate and apart from the defendant and for such further relief as to the court may seem just and equitable and no specific prayer was made for an absolute divorce.
Defendant’s answer to the complaint admitted the marriage, the residence, and then cross-complained whereby he sought an absolute divorce from the plaintiff.
After a lengthy hearing the district judge below entered a decree granting to the plaintiff an absolute divorce along with certain allowances to be paid monthly by the defendant for approximately five years and certain other relief was granted which is of no importance to this appeal. From the judgment and decree the plaintiff appeals. The questions raised by her appeal are as follows:
1. Does the court as a matter of law have the right to grant an absolute divorce in a suit wherein the plaintiff sought separate maintenance only?
2. "What is the propriety of a monthly award for approximately five years for the support and maintenance of plaintiff ?
[412]*4123. Tbe propriety of tbe court in permitting over objections testimony concerning the relationship between the parties hereto prior to their marriage.
There are no minor children, nor any children, involved in the questioned marital status. Thus there is but the disposition to be made of the marital status between the litigants themselves. A study of the evidence produced at the trial proves the seriousness and finality of the marital rupture. A reconciliation would be, as the evidence shows, impossible.
Michigan and Tennessee have by statute granted to the court authority to use its sound discretion where a divorce from bed and board is prayed; the appellate courts in those states have sustained rulings by the lower court wherein absolute divorce was granted when the complaint asked for a divorce from bed and board. Lingner v. Lingner, 165 Tenn. 525, 56 S.W. (2d) 749, and Plantt v. Plantt, 28 Tenn. App. 79, 186 S.W. (2d) 338; Ratcliffe v. Ratcliffe, 308 Mich. 488, 14 N.W. (2d) 127. No such discretion is allowed by the Montana statutes.
However as is stated in 3 Nelson on Divorce, 2nd Ed., section 32.39 pages 409, 410: ‘ ‘ Contrary to the rule governing divorce actions in some jurisdictions, that absolute divorce may be decreed though the plaintiff ask only for a divorce from bed and board, if a wife, not desiring a divorce, proceeds for separate maintenance the court may not decree a divorce, but is bound to decree separate maintenance only * * * ’ ’.
It would be difficult indeed to find better language contained in any of the eases which would be more apropos to the circumstances as they were presented to us in the instant appeal than in the case of Cawley v. Cawley, 59 Utah 80, 202 Pac. 10, 11, where it is said: 1 ‘ While, upon the other hand, the defendant, by an abundance of evidence, proved that the plaintiff, in view of her condition, was guilty of exceedingly harsh conduct and of cruel treatment, causing her much physical pain and much mental anguish which would have entitled her to a divorce, yet, in view that she in her counterclaim did not pray for a divorce, and at the trial frankly conceded, giving [413]*413her reasons therefor, that she did not desire to be divorced from the plaintiff, the court was bound to respect her wishes in the matter and limit the relief in her behalf to separate maintenance. While it may be true, as plaintiff’s counsel with much vigor contends, that the evidence is replete with facts from which it must be clear to all that the plaintiff and the defendant are mismated and cannot continue their marital relations, and, for that reason, in the long run, it would be better for society, better for the parties, and better for all concerned that they be divorced and their unfortunate misalliance be ended, yet, in view of the fact that the plaintiff is the transgressor and the defendant is compelled to live separate and apart from him without fault on her part, and in view that she declines to be divorced, although entitled to a divorce, she cannot be coerced into assuming a status she declines to enter, namely, that of a divorce. The district court was therefore powerless to grant plaintiff’s request, and, for the same reason, we are powerless to do so.”
The plaintiff’s action was for separate maintenance and not divorce as is evidenced by her complaint and in her testimony she indicated definitely that she did not desire a divorce and the lower court was in error in forcing the plaintiff to accept a form of relief which she did not seek and which she did not desire.
Section 21-136, R.C.M. 1947, reads as follows: “Though judgment of divorce is denied, the court may, in its discretion, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband.” This statute seems definitely to point out the scope of the courts’ authority and nowhere in the Montana Civil Code can there be found any authority wherein the courts are permitted, by statute, to grant a divorce where only separate maintenance is sought. The general rule of statutory construction is applicable, it being that where there is an express mention of certain authority, the mentioning of it implies the exclusion of any other. Compare Stephens v. City of Great Falls, 119 Mont. 368, [414]*414175 Pac. (2d) 408; 82 C.J.S., Statutes, section 333, paragraphs 666 to 670; 50 Am. Jur., Statutes, sections 244, 245, 246, paragraphs 238 to 241.
An examination of section 21-103, R.C.M. 1947, discloses that absolute divorces, or separations from bed and board or decrees for separate maintenance, may be granted for certain reasons, but there is nothing in that section which suggests the court may grant relief beyond that which is sought for by the prevailing party.
Respondent contends that the cases of Weil v. Weil, 37 Cal. (2d) 770, 236 Pac. (2d) 159, and Greenwood v. Greenwood, 101 Cal. App. 736, 282, Pac. 433, are persuasive in support of the legal premises that he advances. However in both of those cases the wife consented to amend the prayer of her complaint and thereby consented to a decree being entered for absolute divorce.
Consistent with the overwhelming weight of authority we hold that the district court has no power to grant relief in an action wherein separate maintenance is sought by granting an absolute divorce.
The apparent policy of the legislature in adopting R.C.M. 1947, section 21-136, was to discourage the incautipus granting of divorces and in doubtful cases to give the court the authority to grant a separation rather than to destroy the vinculum of the marriage, the reason for this being that a reconciliation of the parties may be accomplished by legally separating them for a time thus permitting their passions and prejudices to subside and for the further and more important reason that the children, if any, resulting from the marriage must come foremost in the court’s consideration.
The legislature has imposed the methods recognized under which the bonds of matrimony are consummated and at the same time it has imposed the methods under which those bonds may be terminated. For us to read into the statute something that is not there would be in effect a judicial amendment thereto. Such authority has not been committed to us.
[415]*415A suit for separate maaintenance is one of ancient origin but unless we can find statutory authority, and we find none, which gives to the courts the power to use their discretion in their disposition of domestic relations, then we must follow the general rules as have been laid down by our predecessors.
Quoting again from Nelson on Divorce, supra, section 32.04, page 368: “Proceedings for separate maintenance and actions for divorce are directly related and are similar in their nature, in that the marriage relation constitutes the foundation of the action in each case, and the dissolution of the relation extinguishes the subject matter which forms the basis of the action. On the other hand, the object of a divorce action differs from that of a separate maintenance proceeding in that the former is an action to dissolve the marriage relation and extinguish its obligations except in so far as the duty of support is preserved by provisions of the decree requiring payment of alimony, as well as to determine the property rights of the parties and fix the status of any minor child or children of the marriage, while the latter is a proceeding in affirmance of the marriage relation and to enforce its obligations in respect to the support of the wife during the continuance of the marriage. It does not contemplate a termination of the marriage relation, but a continuation thereof.”
The second question can be answered by saying that the evidence discloses plaintiff’s needs were such that she wished only to restore herself to her station of life as it existed prior to the marriage here in question. Taking into account the defendant’s ability to provide and the plaintiff’s right to be provided for, we think the district judge was generous with his result. The record discloses that plaintiff was anything but helpful in the pursuits of defendant and, as a consequence of her activity, defendant’s business enterprises and his ability to earn were, during the course of the stormy marriage, obviously lessened.
The question regarding the propriety of certain evidence admitted over objection is a frivolous assignment of error. [416]*416The judge below admitted such evidence which, if it had been given to a jury, may have well been prejudicial. But here, upon its admission, he said to counsel that its introduction would have no bearing upon the conclusion he reached and quite obviously it did not.
Counsel for defendant Fred Reed when cross-examining asked of and elicited from Julia Reed the information that she did not want an absolute divorce, and both counsel for the defendant and the plaintiff acquiesced in the fact that the action was for separate maintenance.
Much space is given in the dissenting opinion to other matters wholly irrelevant to this appeal. In this connection suffice to say that Julia Reed perfected the appeal and Fred Reed brought to us no cross-assignments of error and hence is in no position to complain, and his counsel does not complain, about the court’s action with respect to the insurance policies.
Judgment is reversed and for good cause shown the ease is remanded with directions to proceed in accordance with the views herein stated, either upon the record as now made or upon such further evidence as either party may desire to submit.
MR. JUSTICES ANGSTMAN and DAVIS, concur.