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District Court of Appeal, Second District, Division 2, California.

Gertrude Elsbeth MUELLER, Plaintiff and Cross Defendant and Respondent, v. Kurt Hans MUELLER, Defendant and Cross Complainant and Appellant.

Civ. 20541.

Decided: November 22, 1954

Krag & Sweet and William L. Mock, Alhambra, for appellant. Dockweiler & Dockweiler, Frederick C. Dockweiler, Los Angeles, for respondent.

The questions for decision are (1) whether a Siamese-twin decree should be rendered in favor of both parties to an action for divorce when recrimination is pleaded and proved and (2) whether support and maintenance should be awarded to the wife after being convicted of adultery under the cross complaint.

The parties were married in Rochester, New York, June 6, 1936. Their three children were subsequently born. The history of this marriage is fraught with strife and friction, finally ending in violent, mutual denunciation. Through the maze of bitterness that attended their pathway, it was discerned by the trial court that appellant undeniably treated respondent with extreme cruelty and caused her great and grievous mental and physical suffering; also that respondent caused appellant distress, unhappiness and mental suffering and admittedly committed adultery on seven separate occasions.

Having found substantially that instead of connubial bliss, the parties lived for years in hate and terror and that such an existence is no longer tolerable, the chancellor decreed in one judgment that both are entitled to be divorced from each other and that after one year a final decree may be entered.

No objection is made to the interlocutory decree of divorce, to the division of community property, to the award of the custody of the children to the mother, or to the amount awarded for their support. Appellant insists merely that by virtue of his having established respondent's adulterous relations, the doctrine of recrimination absolutely bars her action based upon the grounds of extreme cruelty. Such contention is contrary to law.

The Primary Contention

The burden of appellant's thesis is that for a hundred years the doctrine of recrimination has prevailed in California. He cites the holdings of many courts wherein with clear and forceful language the Supreme Court or a District Court of Appeal has left no doubt that those several offenses which constitute grounds of divorce are ‘equally pleadable in bar to the suit for divorce’, Conant v. Conant, 1858, 10 Cal. 249; that where a divorce is granted to a husband for the extreme cruelty of his wife, the court cannot award support money to the wife, Schluter v. Schluter, 1933, 130 Cal.App. 780, 20 P.2d 723; that ‘making of an allowance for the support and maintenance of a guilty wife is beyond the jurisdiction of a superior court’, Marrs v. Superior Court, 1934, 137 Cal.App. 579, 30 P.2d 1030; that ‘the award of permanent alimony to the offending wife [is] void’, Gaudio v. Gaudio, 1934, 138 Cal.App. 289, 32 P.2d 156; that when a divorce is granted to the husband for an offense of the wife, the court has no power to require the husband thereafter to pay alimony or support money to his former wife, Harper v. Carpenter, 1937, 24 Cal.App.2d Supp. 751, 67 P.2d 762; that an allowance of maintenance to a guilty wife ‘unless predicated upon a property settlement, is beyond the jurisdiction of a superior court’, Morrow v. Morrow, 1940, 40 Cal.App.2d 474, 105 P.2d 129, 133; that by the divorce of the wife because of unsocial conduct ‘she is completely cut off from any economic advantage as against her former spouse.’ Remondino v. Remondino, 1940, 41 Cal.App.2d 208, 216, 106 P.2d 437, 442. By reason of such holdings for so long a period, appellant contends, the law became as fixed as the inscriptions of Sinai and consequently it cannot be decreed now that a wife, divorced because of adultery, can be awarded support money against her husband.

Moreover, he argues that the De Burgh decision is judicial legislation and that by virtue of the state's Constitution, Article III, section 1, the judiciary has no power to exercise any functions of the legislature so long as the doctrine of separation of powers is maintained.

But in making such contentions and in citing such authorities, appellant is unmindful of the far-reaching effect of the decision of De Burgh v. De Burgh, 39 Cal.2d 858, 250 P.2d 598. In the first place, the authorities cited by appellant in support of the doctrine of recrimination all related to the cases of innocent husbands. Such pronouncements as are found there do not apply to him who is with his wife equally culpable of violating the sanctity of marriage by extreme cruelty or adultery. By the last cited decision, the Supreme Court did not invade the province of the Legislature. It discerned that the practice of denying support and maintenance to a divorcee because she is denied a decree by the application of the doctrine of recrimination, has not promoted the general welfare, contributed to the tranquility of society or improved the happiness and contentment of those most sorely affected by the dissolution of the marriage ties. That court recognized that instead of the perpetuation of the doctrine of recrimination in its pristine virulence, the trial court should have a wide latitude in determining (1) whether the parties, when both are mutually guilty of serious offenses, might effect a reconciliation; (2) whether the effects of the marital conflicts are such as to render their living together longer intolerable; (3) whether the domestic controversies of the parties are such as disturb the serenity of their neighbors, their family, their friends and acquaintances; (4) whether the parties are comparatively equally guilty, or whether one has excelled the other in violating the status and the contract of marriage.

By the De Burgh decision, the Supreme Court ‘brought California into a small but growing group of jurisdictions which give the trial judge discretion to grant divorce though both parties are guilty of misconduct serious enough to constitute grounds for divorce.’ 41 Cal.Law Rev. 320, 326. Contrary to the former holdings (supra) while recrimination is a defense, Civ.Code, sec. 111, the trial courts now have discretion in deciding whether recrimination exists, and when they find that the connubial union of two lives is hopelessly destroyed, refusal to grant divorce makes ‘a mockery of marriage.’ 41 Cal.Law Rev., supra.

The effect of the De Burgh decision is that, though both parties are guilty, the court may allow support money to either. It goes without saying that such award must be governed by the same equitable principles that guide the chancellor in going even-handed justice to any litigant. That it should be made, the amount thereof and the term of its continuance are within the discretion of the court which must consider the economic status of both parties, the health of each, his obligations and all such circumstances as are calculated to effect a readjustment of each to his proper place in the community. The court may order the husband to support his wife where he is also a party in fault. Note 34 A.L.R.2d 314, 323, 324.

When a divorce is granted to both parties, neither is innocent. Thereupon, the court may apportion the community property as it deems best. It is presumed that such a discretion has been properly exercised. Thomasset, 122 Cal.App.2d 116, 131, 264 P.2d 626.

The contention that condonation of respondent's waywardness was not proved is not warranted. She testified that she informed appellant of her misdeeds within two weeks after her last unfaithfulness on October 16, 1950, and expressed her regret. That testimony followed by the proof of subsequent and frequent cohabitation is sufficient support for a finding of condonation. The court found appellant had knowledge of her acts by February 1951, and his cross complaint was not filed until November 20, 1952. That a formal finding of condonation is absent must be ascribed to an oversight only. That it was intended is fairly inferable from the proof adopted and from the findings (1) that ‘plaintiff is entitled to be paid by defendant the sum of $200 per month as alimony’; (2) that she is a fit and proper person to have the care, custody and control of Kurt, Kathy and Judy; (3) that it is to the best interests of said children that she have custody; (4) that plaintiff is entitled to receive from defendant $70 per month for each child until that child attains its majority; (5) that plaintiff is awarded the home and all the household furniture and the Mercury automobile. On no theory can the court's award of support money to plaintiff be reasonably founded other than that it had been determined that defendant had condoned her adultery. While it is held that where condonation is proved, the court must find it, Hamburger v. Hamburger, 60 Cal.App.2d 530, 537, 141 P.2d 453, such finding can be as forcefully declared by implication as by formal finding. The unreasonable lapse of time before the filing of the cross complaint constituted evidence of condonation. Noble v. Noble, 115 Cal.App.2d 786, 789, 252 P.2d 1001; Civ.Code, sec. 125 and its adoption is tantamount to a formal finding. While it is true that the implied findings of condonation of the adultery remove the bases of appellant's cause for divorce upon the ground of adultery, he still has an action on the ground of the ‘grievous mental suffering, wrongfully inflicted’ by respondent as to which a formal finding was made. It follows that the duality of the decree is not impaired for lack of mutual and cordial unkindness on the part of both parties.

Appellant contends that respondent did not come into equity with clean hands. Under that doctrine, a court was formerly obliged to deny relief to any party who comes into equity with unclean hands relating to the transaction pleaded. Hamrick v. Hamrick, 119 Cal.App.2d 839, 847, 260 P.2d 188. Such is generally still a rule in equity. But in the realm of domestic relations that maxim is now overcome by the De Burgh decision which makes paramount the sociological considerations arising from a broken home and the penniless status of a woman incompetent to beat her way to economic security while still obliged to make a home for her progeny and afford them a fairly decent social life. The severity of the doctrine of recrimination as announced almost a hundred years ago, Conant v. Conant, supra, is not calculated to preserve a public policy such as will constantly inspire the growth and extension of the moral code and reduce causes for unhappiness. Marriage should not be degraded and its purposes frustrated by decrees that punish parents and rob their children of love and a peaceful existence while bringing no benefit to the state. Where marriage is a failure by reason of the conduct of both spouses, public policy will not be served by denying divorce to both parties. But after it has been determined that reconciliation is not to be hoped for, and that a continuance of the marital conflict is destructive of the future lives of the family and of the peace and contentment of others, the court should divorce both parties and make such orders for the permanent support of the wife as are indicated by the entire record. See Philips v. Phillips, 41 Cal.2d 869, 877, 264 P.2d 926; Kirsch v. Kirsch, 119 Cal.App.2d 271, 275, 259 P.2d 444; Noble v. Noble, 115 Cal.App.2d 786, 789, 252 P.2d 1001; Hendricks v. Hendricks, 125 Cal.App.2d 239, 270 P.2d 80.


I dissent.

Because of the serious character of plaintiff's marital misconduct it was an abuse of discretion to grant her alimony in the absence of a specific finding of condonation in view of the conflict in the evidence. The majority opinion makes an extreme and unwarranted application of the dictum in the De Burgh case to the effect that a guilty party may be awarded alimony. That dictum, however, does not justify an award of alimony where the marital offense is uncondoned adultery.

MOORE, Presiding Justice.

McCOMB, J., concurs.