Young v. Young

178 S.W.2d 994, 207 Ark. 36, 152 A.L.R. 327, 1944 Ark. LEXIS 612

• Court: Supreme Court of Arkansas
• Decided: March 27, 1944
• Docket: 4-7306
• Status: Published

Opinions

McFaddin, J.

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) deliial 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 ficle 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 jrou 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 he considered only in the settlement of property rights of the parties and tibe 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 divorce and alimony were originally of ecclesiastical cognizance, but in this country they have always been regulated by statute, and the courts generally have looked to the statutes as the source of their power. Bowman v. Worthington, 24 Ark. 522; Cizek v. Cizek, 69 Neb. 797, 96 N. W. 657, 99 N. W. 28 (5 Ann. Cas. 464); Barker v. Dayton, 28 Wis. 367; 1 Bishop on Mar. & Div., § 1400; 14 Cyc. 581-2; 1 Pomeroy, Eq. Jur., §§ 98, 112, 171; 3 Pomeroy, Eq. Jur., <§§ 1120-1299.”

Divorce has always been a matter of statutory determination. In 17 Am. J. 150 it is stated: “In this country it is the province of the legislatures of the several states to regulate the subject of divorce as applied to their citizens and persons domiciled within their jurisdiction. The power of the legislature over the subject of marriage as a civil status and its dissolution is unlimited and supreme except as restricted hv the Constitution. ’ ’

And in 27 C. J., § 15, p. 536, it is stated: “Where a statutory ground of divorce is plainly shown' to exist, the court has no discretionary right to deny a divorce, except, of course, where a proper defense is established.”

So it is clear that divorce is a statutory matter and the Legislature has a right to establish the grounds and conditions of divorce; and the act here involved clearly abolished recrimination as a defense against three-year separation.

IY. Constitutionality. The appellant contends that this act, abolishing recrimination as a defense, is unconstitutional, as impinging upon equity jurisdiction; and invokes the rule that the jurisdiction of equity courts, as that jurisdiction existed at the time of the adoption of the constitution of 1874, can neither be enlarged nor diminished by the Legislature, 'citing some of these cases : German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8. The rule announced in these cases is contrary to the law in most other jurisdictions. See 30 C. J. S. Equity, § 8, p. 325, and 19 Am. J. 46. We recognize that the jurisdiction of our courts of equity (as the jurisdiction existed in 1874) can neither be enlarged nor restricted. But there is a distinction between (1) jurisdiction and (2) grounds for the exercise of jurisdiction. This distinction disposes of any question of constitutionality.

That equity courts had jurisdiction of divorce cases prior to the adoption of the Constitution of 1874 is clear. Under Chapter 51, § 3 of the revised statutes of 1837 it was provided: “The circuit court, sitting as a court of chancery, shall have jurisdiction in all matters of divorce . . .” And in the Civil Code of 1869 it was provided in § 456: “The action for divorce shall be by equitable proceeding.” See § 4380 of Pope’s Digest. So at the time of the adoption of the Constitution of 1874 the courts of equity had jurisdiction in matters of divorce, but the courts of equity only had such jurisdiction as the Legislature had conferred, and the courts of equity exercised that jurisdiction upon the grounds that were, from time to time, determined by the Legislature — since divorce is a creature of the statute as heretofore discussed.

That the Legislature does not restrict the equity jurisdiction of the court when the Legislature prescribes the conditions under which such jurisdiction may be exercised was decided in Marvel v. State, ex rel. Marrow, 127 Ark. 595, 193 S. W. 259, 5 A. L. R. 1458. There, the Legislature had passed an act authorizing the chancery court to abate as a nuisance any place where intoxicating liquors were sold. The statute was attacked as conferring additional powers on the chancery courts. This court upheld the statute in the face of this attack and said:

“The act in question has not conferred upon the chancery courts of this state any additional jurisdiction. It has merely prescribed a new condition upon which this ancient jurisdiction may be exercised. The act is remedial in its nature and, while the Legislature can not enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure for the exercise of this jurisdiction and to prescribe new conditions under which that jurisdiction may be exercised. The Legislature has not conferred the jurisdiction upon the chancery courts to abate public nuisances. This jurisdiction they have always had.

‘ ‘ The jurisdiction of all 'the courts is fixed by the Constitution as appears from the above-cited cases. But this jurisdiction may be applied to new conditions if the Legislature so elects.”

And in Rogers v. Carson Lake Road Imp. District, 191 Ark. 112, 85 S. W. 2d 715, there was involved a statute authorizing the court of chancery to appoint a receiver for a road improvement district, and this statute was attacked as enlarging the power of the chancery court. The statute was upheld, and the court used the following language: “True, we have consistently held since Hempstead & Conway v. Watkins, 6 Ark. 317, 42 Am. Dec. 696, that the Legislature is without power to add to, limit or abridge the jurisdiction conferred on chancery courts or circuit courts acting as such by the Constitution of this state. See Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8. But we have never held that, where the subject-matter was within chancery court’s ancient jurisdiction, the Legislature was without power to regulate the exercise thereof. In fact, we expressly decided to the contrary in Marvel v. State, 127 Ark. 595, 193 S. W. 259, 5 A. L. R. 1458.” And to the same effect see, also, Dickinson v. Mingea, 191 Ark. 946, 88 S. W. 2d 807.

It, therefore, follows that the court of equity had the right to grant divorce prior to the Constitution of 1874 on grounds and conditions prescribed by the Legislature ; that the Legislature, at various times from 1874 up to the present, has altered and amended the grounds of divorce and tlie conditions upon which divorce might be granted; that none of these amendatory acts increases or diminishes the jurisdiction of the chancery court, but merely prescribe new conditions upon whieh the jurisdiction may, or may not, be exercised; and that all of this is entirely constitutional.

While we as individuals may personally disapprove of the grounds of divorce as fixed by the Legislature and may view with alarm the passage of such a law as the one in question which is tending to make our. state a haven for unfaithful spouses, still as judges we must remember that the divorce laws are made by the Legislature and until , the Legislature repeals these laws the courts must interpret them in the words and spirit written. If appellant’s argument about the unconstitutionality of the act in question were sound, then every divorce would be illegal that had been granted for any cause added to the statute since 1874. We have repeatedly held that the Legislature has the right to alter and amend the divorce laws and have repeatedly granted divorces for grounds added to the statute since 1874. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238; Goud v. Goud, 203 Ark. 244, 156 S. W. 2d 225; Brooks v. Brooks, 201 Ark. 14, 143 S. W. 2d 1098; Clarke v. Clarke, 201 Ark. 10, 143 S. W. 2d 540; McCall v. McCall, 204 Ark. 836, 165 S. W. 2d 255. Some of these cases caused strong dissents and bitter concurrences, but it was recognied that it was the duty of the judiciary to respect the policy determined by the Legislature, its co-ordinate branch.

The decree of the chancery court was correct, and is in all things affirmed.

The Chief Justice concurs in part.