Hawkins v. Hawkins

This action is one brought by the respondent to procure a judgment of separation from her husband, the appellant, and to compel suitable provision for her support and maintenance. Its determination will be governed by the application to rather unusual facts of sections 1762 and 1765 of the Code of Civil Procedure.

Section 1762 provides that a wife may have judgment of separation and for support for either of the following causes : u * * *

“ 3. The abandonment of the plaintiff by the defendant.

“ 4. * * * the neglect or refusal of the defendant to provide for her.”

But section 1765 provides that in such an action as this “ the defendant may set up, in justification, the misconduct of the plaintiff; and that if that defense is established to the' satisfaction of the court, the defendant is entitled to judgment.”

Under this section the appellant alleged and has established beyond controversy that his refusal to live with and support the respondent immediately followed and was the result of his discovery that she had been guilty of adultery. On these facts, added to the others above stated, appellant unquestionably would be entitled to judgment dismissing the action, for it is settled that the adultery of the wife relieved the husband from the obligation to support her, and such misconduct is a defense to an action of this character. (Doe v. Doe, 23 Hun, 19 ; Deisler v. Deisler, 59 App. Div. 207 ; People ex rel. Keller v. Shrady, 40 App. Div. 460 . See, also, Nelson on Divorce and Separation, § 429; Decker v. Decker, 193 Ill. 285 , 294.)

But still further facts are established which it is claimed materially qualify the force of those last recited. It appears that the appellant was guilty of adultery before the respondent, although not known to the latter at the time of her offense, and that in an action brought by the former for absolute divorce the latter made a counterclaim based upon the appellant’s wrongdoing, and the court on familiar principles refused to grant relief to either party.

Under these circumstances the respondent argues in support of her judgment that'the appellant’s misconduct somehow prevents him from successfully urging hers under section 1765 as a defense to this action, and especially that inasmuch as the court refused to dissolve the marriage obligation on account of the said mutual acts of adultery said obligation continues in full force notwithstanding those acts and as an incident thereto the appellant can be compelled to support his wife.

JSTeither do I perceive how the force of this reasoning and conclusion if otherwise correct is affected or impaired by the decree in the divorce action. On the other hand, the logic of that judgment which refused relief with respect to the mar

There was nothing in that decree which technically bars the appellant from urging the respondent’s adultery as a defense in the present action. It refused to give him affirmative relief on account thereof in the former action because of his own similar fault, but that -is not inconsistent with his right to urge the same act under the express provisions of the statute as a defense to the wife’s request for affirmative relief in this action.

But it is urged that the court having refused to dissolve the marriage tie, all the obligations of that contract, including that of support of the wife by the husband, must remain in full force. And as sustaining this view reference is made to the expression in Wood v. Wood (2 Paige Oh. 108) that “ if both parties (to a divorce action) are guilty, neither has any claim to relief; and they are in that case suitable and proper companions for each other,” and to the remark in Beeby v. Beeby (1 Hag. Eccl. 790), “ It is not unfit if he - * * who has violated his marriage vow should be barred of his remedy; the parties may live together and find sources of mutual forgiveness in the humiliation of mutual guilt.”

I do not attribute to these opinions and to the decree any such significance or effect as is claimed for them, but think that the only meaning legitimately to be deduced from them is that the court will not give affirmative relief to mutually guilty husband and wife by dissolving the marriage contract, but will leave them where it finds them subject to whatever burdens of that relation still remain, and the conclusion is not justified that such a decree amounts to an adjudication that all of the original obligations remain unimpaired. Independent of any statutory provision, it might be questioned whether a wife who has been guilty of adultery

Heitlier, in view of the statutory provision to which reference has been made, does it avail as an argument to say that the wife’s right of dower and of administration on her husband’s estate and possibly various other rights continue notwithstanding her adultery, so long as the marriage has been-allowed to remain undissolved, and that it is not in harmony with the continuance of these rights that she should lose her right to support. This is a matter of statutory policy. It cannot be doubted that the legislature would have the power to cancel her right of dower and administration because of mere adultery without a decree of divorce founded thereon, and if it had so enacted I can hardly believe that she would have avoided the results of her misconduct by proving that at some time her husband had committed a similar sin. It has been expressly held otherwise in England. (Bostock v. Smith, 34 Beav. 57.)

Authorities are not wanting to sustain the proposition that, independent of any statutory provision such as we have, the destructive consequences to her conjugal rights of the wife’s adultery are not prevented or compensated and avoided by similar fault of her husband.

Govier v. Hancock (6 Durnford & East, 603) was an action to recover for necessaries furnished to a wife living apart from her husband. It appeared, however, that she had com

In Bostock v. Smith (34 Beav. 57) it was held that the wife who left her husband and committed adultery came within the statute forfeiting her dower for such offense, even though she left her husband in consequence of his gross misconduct, “ which was such as would justify, if anything could justify her act. But nothing could justify it.”

In Stimpson v. Wood and Son (L. J. [57 Q. B.] 485) it was in effect held that a wife living in adultery lost all right of support, although her husband was doing the same thing.

In Culley v. Charman (L. R. [7 Q. B. Div.] 89) it was said by Hawkins, J.: “I do not think there is any need to cite authorities to show that a husband is not bound at common law to maintain a wife who has been guilty of adultery and who is living apart from him.”

In Hope v. Hope (1 S. & T. 94) it appeared that each party had sought divorce for the adultery of the other, and had been denied relief on account of their mutual misdeeds; that thereafter the wife applied for a decree, of restitution of marital rights, which in its important aspects was like the present case, an action to compel support. It was urged “that cohabitation is a duty resulting from marriage and that neither party can withdraw from cohabitation without the judgment of a court, which in this case the husband not only had not obtained, but having asked the proper tribunal to release him from that duty his prayer was rejected; and, secondly, that the guilt of each being the same their mutual delinquencies were compensated and b'otli were restored to their original position as innocent parties.” The court overruled both contentions.

And to the same effect are the cases of Drummond v. Drummond (2 Swabey & T. 274); Otway v. Otway (L. R. [13 P. D.] 141).

It may be said that these later English decisions are based

As was said by Judge Folger in Brinkley v. Brinkley ( 50 N. Y. 185 , 190), “ * * * though it has been held that the ecclesiastical law of England is not a part of the common law of that country, and is no part of the common law thereof adopted in this state * * * yet, when by our statutes any part of the jurisdiction exercised by these courts was given to our courts, the settled principles and practice of those courts became a precedent and a guide for our courts.”

The case of People ex rel. Keller v. Shrady ( 40 App. Div. 460 ) has not been overlooked, wherein it is written by Judge Barrett that in criminal proceedings against the husband for abandoning his wife it would not be a defense to show that the wife liad been guilty of adultery, it also appearing that the defendant had been first guilty of similar fault which would prevent him from, procuring a dissolution of the marriage. It is, however, to be noted that what was thus said was not necessary to the decision of the case, and, secondly, that it was expressly directed to the proposition that under such circumstances the husband would be bound not to permit his wife to become a “public charge.” Independent of the Code provision and as a matter of public policy, there very well might he a distinction between proceedings by the guilty party for her individual benefit and those instituted in behalf of the People to prevent the burden of a public charge.

The judgments of the courts below should be reversed and a new trial granted.

(dissenting). I dissent from the decision about to be made. The statutory provisions now found in article 3, chapter 15 of the Code of Civil Procedure do not bar plaintiff’s right to relief. Both plaintiff and defendant have been guilty of adultery, as was determined in an action previously brought by the defendant against the plaintiff for an absolute divorce. After the rendition of a decree therein, the defendant refused to live with the plaintiff or in any manner provide for her support. By subdivision 4 of section 1762 of the Code, the wife is entitled to a decree of separation and maintenance where the husband neglects or refuses to provide for her. Her prima facie right to relief is, therefore, conceded. The sole question is as to the sufficiency of the husband’s defense. By section 1765, “ The defendant may set up, in justification, the misconduct of the plaintiff; and if that defense is established to the satisfaction of the court, the defendant is entitled to judgment.” What is the misconduct as intended by this section ? Plainly only such misconduct as justifies the action or conduct of the husband in refusing to support her. It is urged that unquestionably the plaintiff’s adultery was misconduct on her part. That is true, but the question is, was it misconduct towards her husband who himself had been guilty of a similar offense. Doubtless every dictate of honor, morality and self-respect should keep a wife pure even when her husband has done wrong, but if her only obligation to chastity rested on loyalty due to an adulterous husband, the plaintiff would not be subject to censure from the most strict of moralists. If the wife should commit an assault and battery on a third party or larceny and be sent to ■ prison for either offense, it would undoubtedly be misconduct on her part, but would any one pretend that by reason thereof the husband was for ever afterwards relieved from the obligation of supporting her ? In some states imprisonment under sentence for a felony is a ground for divorce; not so with us. Therefore, the simple question presented in this case is whether the defendant remains under any obligation to support the wife after the commission of adultery, he himself having been

In determining this question we must not be misled by the false analogy of ordinary contracts, and the argument that where both parties have violated a contract neither can claim any right thereunder. Though based on contract, as distinguished from religious sacrament, marriage is not a contract in the accurate sense of that term. In Wade v. Kalbfleisch ( 58 N. Y. 282 ) Chief Judge Church said: “ It cannot be dissolved by the parties when consummated, nor released with or without consideration. The relation is always regulated by government. It is more than a contract. It requires certain acts of the parties to constitute marriage, independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” The learned judge quotes with approval the declaration in Ditson v. Ditson ( 4 R. I. 87 ): “ In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract which they can make.”

Nor are we to be controlled by the decisions in England (which will be referred to hereafter), where both the law and public opinion view in very different lights unchastitv in the wife and the same offense in the husband, and where even now under the Divorce Act of 1857, not only is distinction made between adultery by the wife and that by the husband, but a divorce may be granted to a party guilty of adultery. The question is to be determined in the light of the public policy of this State as declared in its statute law, which imposes the obligation of marital fidelity equally on the hus

The English ecclesiastical cases, which take a contrary view of the obligation of the adulterous husband to support an adulterous wife, are of recent date, long subsequent to the Bevolutionj and, therefore, not evidence of the ecclesiastical law of that country as it existed at the time of our separation. (People ex rel. Tweed v. liscomb, 60 N. Y. 559 , p. 576.) The earliest of these is Hope v. Hope (1 Swabey & Tristram, 94), decided in 1858. There it was held that an adulterous wife cannot obtain a decree for the restoration of conjugal rights against an adulterous husband. The learned judge who decided the case states that the question had never been determined in the courts of that country, and admits that the canon law, which, though not adopted in its entirety, is concededly the foundation of the English ecclesiastical law, was directly contrary to the conclusion which he reached. He further admitted that there were dieta of that eminent ecclesiastical judge, Lord Stowell, evincing a different view. In Proctor v. Proctor (2 Hagg. Con. [Eng. Eccl.] 292), where a separation was refused by reason of mutual adultery, Lord Stowell said: “ It (the court), therefore, presumes, when it withholds its decree of separation, that the parties return to cohabitation; all matters return to their former course, but with increased vigour; the husband and wife live again on their former footing, and there is no anticipation of separate debts, or of the probability of a spurious offspring. That such is the doctrine of the Canon Law is most certain, the authorities are numerous and precise to that effect.” The Hope case proceeded on two decisions of the common-law courts. The first was that of Govier v. Hancock (6 Term. R. 603; temp. 1790). The action was for board and lodging furnished to defendant’s wife. The report thus states the case: “The defendant having committed adultery with a woman of the name of Bazely whom he had brought home, treated his wife with great cruelty, and finally turned her out of doors. Then the wife committed adultery, after

While the law in England as to judicial separations remains unchanged by the Matrimonial Causes Act of 1857, which first authorized the courts to decree a dissolution of the marriage tie, the practice in suits for absolute divorce is so entirely foreign to the law and policy of this State as to render the decisions under that statute of no value here. There a husband may obtain a divorce from his wife for her

My learned associate, who writes for the majority of the court, says: “ Independent of any statutory provision, it might be questioned whether a wife who has been guilty of adultery may successfully insist that her husband shall live with and support her even though the court has refused to dissolve the marriage relation because of his similar fault.” From this intimation I dissent toto ocelo. Its effect would be to set up one standard of morality for the woman, another for the man, a distinction which, whatever may be the view taken of it by society, is expressly repudiated by the statute law of this state by which adultery on the part of husband or wife is equally made a crime. I can only repeat the forcible language of the court in the Seaver Case {supra) : “Nor will a man, against whom adultery is charged and proved, be permitted to allege any reluctance to associate with an adulteress, because she happens to be his wife.” I do not say that the commission of a single act of adultery on the part of the husband gives the wife unlimited license to commit adultery at all times thereafter and still compel her husband to support her, but this is equally applicable to the wife, and a single act of adultery on her part, possibly committed at a time long past, and sincerely repented of, should not enable the husband to cast her off without support, though he may be living a life of continuous and gross profligacy. The circumstances under which an offense is committed, while they may not affect the penalty which the law imposes on its commission, may form a controlling factor in determining the moral delinquency attributable to the act. The effect of the decision about to be made is to

The judgment appealed from should be affirmed, with costs.

Gray, Edward T. Bartlett, Haight and Werner, JJ\, concur with Hiscock, J.; Cullen, Ch. J., reads dissenting opinion; Willard Bartlett, J., not sitting.

Judgment reversed, etc.