GILMORE v. GILMORE

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District Court of Appeal, First District, Division 1, California.

Dixie GILMORE, an incompetent person, by and through Walter Russell, guardian of her person and estate, Plaintiff, Cross-Defendant and Appellant, v. Don GILMORE, Defendant, Cross-Complainant and Respondent.

No. 16139.

Decided: April 26, 1955

James Martin MacInnis, Nicholas Alaga, San Francisco, for appellant. Michael L. Haun, San Francisco, Myers & Meehan, San Anselmo, for respondent.

Plaintiff appeals from an interlocutory decree of divorce granted defendant upon the ground of plaintiff's extreme cruelty and decreeing no community property.

Questions presented.

1. In a divorce case is a supplemental complaint alleging a cause of action accruing after the commencement of suit, proper?

2. The trial court, having found plaintiff guilty of extreme cruelty and in effect defendant guilty of adultery, should it have granted a divorce to both parties?

Record.

Plaintiff's complaint as supplemented charged (1) extreme cruelty, (2) desertion, (3) adultery. Defendant cross-complained charging extreme cruelty. The court found against plaintiff on her counts of extreme cruelty and desertion. It found that plaintiff's charge of adultery was untrue, ‘save and except that’ subsequent to the filing of this action defendant indulged in at least six acts of sexual intercourse with other women, but that such conduct did not cause plaintiff any mental pain or suffering or constitute extreme cruelty towards her. It found plaintiff guilty of extreme cruelty towards defendant as follows: (1) She called him vile and opprobrious names causing him shame and humiliation. (2) For more than four years last past and without cause she failed to exhibit any affection towards him. (3) During that period she drank intoxicating liquor to excess. (4) On numerous occasions while under the influence of intoxicating liquors and without cause she quarreled and nagged at, and called him vile names in the presence of other persons. (5) More than four years, without cause, she refused defendant reasonable, or any, matrimonial sexual intercourse. It found that there is no community property; that the real property at Fairfax Manor and the Belvedere home were held by the parties as joint tenants; that the corporate stock in the three Don Gilmore corporations was the separate property of defendant; that the salaries paid defendant by these corporations during the married life of the parties fully compensated for all services rendered them by defendant during that period and that all of such salaries were used for community purposes. A Cadillac car and the yacht ‘Larke’ which plaintiff claimed were gifts to her from defendant, but whose titles were in the Don Gilmore San Francisco corporation, were found to belong to that corporation. Furniture, furnishings, etc., acquired during marriage were found to be held in joint tenancy.

1. Sufficiency of evidence.

The trial consumed approximately five weeks. The reporter's transcript is 3061 pages. The case is one of the most sordid and revolting with which courts are required to deal. Plaintiff during most of the marriage was admittedly a dipsomaniac. She claimed, however, that her constant inebriacy was the result of defendant's treatment of her, particularly his revolting suggestions that she perform sex perversions with him and other women. She denied ever doing so, but claimed that because of these repeated suggestions she was so disturbed as to be unable for the last four years to engage in sexual intercourse with him. Defendant denied that he participated in the perversions but claimed to be a ‘glorified observer’ thereof, and claimed that not only did plaintiff participate in them but that she was the instigator thereof. He produced a woman witness who corroborated his testimony. The trial court made no findings on this subject but in its oral opinion rendered at the end of the case, stated that as to this situation the parties were ‘in pari delicto.’ The evidence showed that the married life of the parties consisted primarily in an endless search for amusement and entertainment, in which large sums of money were spent, and no attempt made to establish a sane, sound home life. Possibly the inability to produce offspring, earnestly desired by the plaintiff in the early years of the marriage, may have been a contributing factor. There was proof that on occasions each party had struck the other and had called the other vile names. However, plaintiff indulged in this pastime far more than defendant, and on many occasions in the presence of his friends and business associates. The couple were married almost seven years before their separation, during the last four years of which plaintiff, except when taking the cure in various institutions, was almost continually intoxicated. Defendant was exceedingly patient with plaintiff's conduct in this respect. Plaintiff objected to being alone. Defendant would return to the home every afternoon and spend the evening and night with plaintiff. Defendant was only away from plaintiff overnight on two occasions during their entire married life, except, of course, the occasions when plaintiff was in the above mentioned institutions. As to these two absences defendant was on legitimate missions, one of them being a Coast Guard meeting. Defendant gave his wife many expensive gifts, furs, jewelry, etc. In an endeavor to save the marriage defendant built a home costing $158,000. Defendant gave as the cause of the failure of the marriage, plaintiff's addiction to liquor. Plaintiff claimed that defendant's revolting suggestions to her for at least the previous four years were the reason. Yet, as pointed out by the judge, she continued to live with defendant and even encouraged him to build the new home. The court pointed out, too, the unreliability of plaintiff's testimony throughout. For example, plaintiff testified that because of defendant's revolting suggestions she left their home and went to the Huntington, making her own reservations. Defendant claimed that he had made the reservation and signed the register. On being confronted with the register card she denied that what purported to be defendant's signature was his signature. Defendant then wrote exemplars of his signature in court, to be compared with the register card, plaintiff watching him. Plaintiff then denied that the exemplars were his signature, saying that he would make a good forger. Her own attorney in his opening brief states of her testimony, ‘Her untrained mind made a mockery of the polite judicial admonitions which would ordinarily control and limit the outpourings of the indignant and unschooled mind. A kind and patient judge found himself vexed by her intrusions into frivolity; * * * she did not speak the truth.’ The trial court rejected the reasons given by plaintiff for her four years refusal (defendant testified it was only two and a half years) to permit matrimonial sexual intercourse. We do not deem it necessary to detail the evidence for the reason that there is very little contradiction of the evidence concerning plaintiff's attitude and acts towards defendant. The main conflict is in the reason for them, and the determination thereof depends principally upon which of the parties is to be believed. The court chose to believe defendant. As we have so often said, the question of the credibility of the witnesses and the resolving of conflicts is a matter for the trial court, with which determination an appellate court may not interfere. Rarely do we find a case in which the record shows such a lack of reliability and credibility as shown by plaintiff here.

1. Supplemental complaint.

The original complaint charged only cruelty and desertion. Over defendant's objection the court permitted plaintiff to file an amended and supplemental complaint charging defendant with adultery committed subsequent to the filing of suit.

It is true that in California, as in many jurisdictions, the general rule is that a cause of action different from that set up in the complaint cannot be set up by supplemental complaint, but must be pleaded in a new action. See 2 Witkin, California Procedure, § 616, p. 1633; Imperial Land Co. v. Imperial Irr. Dist., 173 Cal. 668, 161 P. 116. Witkin, supra, refers to this rule as reasonable enough, but ‘its violation does not seem to be a particularly serious matter.’ He then states: ‘But the supplemental complaint, bringing up matters occurring after the action is commenced, is almost always timely. The only objection is that the plaintiff is joining a cause of action which could not have been joined because it had not yet accrued, at the time the original complaint was filed. Pursuing this analysis still further, the rule merely demands that the plaintiff entitle the new pleading ‘complaint’ instead of ‘supplemental complaint,’ serve a summons on the party instead of a pleading on the attorney, and move to consolidate both actions for trial if this is appropriate. It might well be held, therefore, that error in allowing the filing of a supplemental complaint changing the cause of action is not prejudicial and should not be reversible.'

There are cases in which supplemental pleadings have been approved notwithstanding the fact that they appeared to state a new and different cause of action. Thus in Perkins v. Benguet Consol. Min. Co., 1942, 55 Cal.App.2d 720, at page 773, 132 P.2d 70, at page 101, this court stated: ‘While it is the rule generally that a new cause of action may not be set up by supplemental complaint, that rule is not of inevitable application,’ referring to section 464, Code of Civil Procedure, the section allowing the filing of supplemental pleadings ‘alleging facts material to the case occurring after the former complaint or answer.’ The language of that section is broad enough to include new causes of action, although generally the section has been construed otherwise. In the Perkins case the action was brought by the plaintiff stockholder against the defendant corporation to recover dividends on stock up to the filing of the complaint. The supplemental complaint asked for dividends declared in several subsequent years. Strictly speaking, the supplemental complaint set up a new cause of action. However, the court held that the ‘case’ mentioned in section 464 was the plaintiff's ownership of the stock and her right to dividends on it, and therefore the plaintiff's right to subsequent dividends was material to the ‘case.’ 55 Cal.App.2d at page 774, 132 P.2d 70.

In the instant action the ‘case’ is actually the marital status of the parties, a status in which not only the parties but the state is interested. That status ‘can be terminated only with the consent of the state. * * * the court must consider not merely the rights and wrongs of the parties * * * but the public interest in the institution of marriage. * * * the considerations of policy that prompt the state to consent to a divorce when one spouse has been guilty of misconduct are often doubly present when both spouses have been guilty.’ DeBurgh v. DeBurgh, 39 Cal.2d 858, 863, 864, 250 P.2d 598, 601. To hold that the court cannot consider a divorce cause of action based upon the misconduct of one of the spouses prior to actual dissolution of the marriage status merely because that cause of action is set up in a supplemental cross-complaint rather than in a complaint in another action to be consolidated for trial with the first is making the form of the pleading more important that its substance. Moreover, to hold here that the adultery cause of action should not be considered as being before the court deprives the court of exercising fully the state's consent to a proper dissolution of the marital status. It must be remembered that here the proof showed and the court actually found (although not using the word itself) that defendant was guilty of adultery.

With the three parties above mentioned all before the court, with the main issue being the marriage status, whether it should be dissolved, and if it were to be dissolved, how; with the evidence of the life of the married parties from the beginning of the marriage to practically the day of the trial before the court, the supplemental complaint should have been considered. This permits the court to have before it, in the language of section 464, all the evidence material to the case. In Brix v. People's Mut. Life Ins. Co., 2 Cal.2d 446, 41 P.2d 537, the plaintiff brought action to recover monthly disability payments under an insurance policy. The Supreme Court held that the trial court should have permitted the plaintiff to file a supplemental pleading to recover installments accruing after the filing of the complaint. ‘To deny him this right would be simply to send him out of court one day and compel him to return the next day to litigate the same matter that was before the court on the first day. Such a construction of the law is not in harmony with the spirit of our modern procedure which endeavors to simplify court proceedings and particularly to provide for the settlement in a single action of all controversies of the parties growing out of the same subject-matter.’ 2 Cal.2d at page 457, 41 P.2d at page 542. So, to hold that a supplemental pleading setting up a new cause of action may not be filed in a divorce proceeding would be completely out of harmony with our modern procedure designed to get before the court all the facts material to the case and would interfere with the proper determination of the state's interest in such a case.

While the facts are not completely analogous the holding in Strickler Co. v. Eisner, 5 Cal.App.2d 441, 42 P.2d 1065, is significant as showing that the general rule has exceptions. There, in an action to recover installments of rent, taxes and attorney's fees alleged to be due under a written lease, supplemental pleadings for installments of rent, taxes and attorney's fees accruing after the filing of the suit were held to be properly filed, even though each installment of rent as it fell due constituted a new cause of action. A number of authorities from other states were cited to support the holding. The court additionally seemed to treat the new causes of action as separate suits and pointed out that under the court's power of consolidating actions the appellant's rights were in nowise prejudiced by considering the actions consolidated.

In Groom v. Bangs, 153 Cal. 456, 96 P. 503, the plaintiffs, husband and wife, joined in an action for the wife's personal injuries. She died, and the plaintiff husband, with leave of court, filed an amended and supplemental complaint for wrongful death of the wife. The court referred to the procedure as ‘irregular,’ but upheld it as no objection had been made in the trial court. The case is of value here because the court, in effect, held that the ‘irregular’ filing of a supplemental complaint was not jurisdictional.

Again, that it is not a jurisdictional matter is well shown by the decision in Cohn v. Cohn, 1941, 47 Cal.App.2d 683, 118 P.2d 903. The action was brought for separate maintenance on the ground of cruely. On stipulation of the parties, the plaintiff was permitted to file a supplemental complaint for divorce on the ground of desertion, the cause of action for which accrued after the filing of the original complaint. See also Randall v. Randall, 203 Cal. 462, 264 P. 751, where a supplemental complaint setting up a new cause of action for divorce on the ground of desertion was considered to supersede the original complaint and a judgment rendered on it was upheld.

In Renner v. Renner, 1940, 177 Md. 689, 12 A.2d 195, at page 198, 127 A.L.R. 674, it was held that a supplemental pleading setting up a cause of action for divorce on the ground of adultery was not allowable; that the proper procedure would be ‘the existing suit for divorce should be dismissed by consent of the Court, and a new action should be instituted.’ The absurdity of this requirement as applied to California rules of pleading is demonstrated when we consider that in this state, the action could not be dismissed even with the consent of the court, if the defendant in the case had asked for affirmative relief. In such case is the wronged party to be denied the right to inform the court of the adulterous action of the other party?

In Smith v. Smith, 21 N.J.Misc. 273, 33 A.2d 684, the general rule was upheld. However, it was pointed out that the filing of such a supplemental pleading was merely an irregularity which the parties could waive, and also that a supplemental pleading would be permitted where the new matter would remove the effect of a condonation.

In a later case in the same court, Schmitt v. Schmitt, 1950, 9 N.J.Super. 470, 75 A.2d 480, it was held that the rule expressed in the Smith case no longer existed due to a change in the rules of pleading and that the plaintiff might amend his complaint for divorce to set up an act of adultery allegedly occurring after the filing of the answer to the original complaint. The court stated that ‘such an interpretation seems in keeping with the progressive liberality of the Rules * * *.’ 75 A.2d at page 480.

Stating ‘It is a well-recognized practice in equity to permit new matter arising subsequent to the complaint to be alleged in a supplemental pleading,’ the court in Kelsall v. Kelsall, 1952, 139 Conn. 163, 90 A.2d 878, 880, denied the contention that a court adopted rule permitting the filing of an amendment to a complaint in a divorce action to set up a ground of divorce arising subsequent to the filing of the action, was a rule affecting substantive rights and not merely a rule governing practice and procedure. There the original complaint charged cruelty. The court held proper an amendment charging desertion, the cause of action for which did not accrue until some three months after the original complaint was filed.

In Ames v. Ames, 1919, 109 Misc. 161, 178 N.Y.S. 177, it was held that while a plaintiff could not file a supplemental complaint setting up adultery committed by the defendant after suit filed, a defendant could by supplemental answer as a defense or counterclaim set up acts of adultery committed by the plaintiff since suit filed, giving as the reason for this curious distinction between the case of a plaintiff and a defendant, “A plaintiff may discontinue and sue over again, while a defendant cannot.” 178 N.Y.S. at page 178. This reasoning would not be applicable in California if the defendant had asked for affirmative relief. Moreover, that this is no longer the law in New York is shown by Taffler v. Taffler, 1947, Sup., 75 N.Y.S.2d 895, where the plaintiff sued for judicial separation on the ground of cruelty. Over the defendant's objection, evidence was received of adultery committed by the defendant almost four years after suit filed. The plaintiff moved to amend her complaint to conform to the proofs. The court held that this was improper, stating, 75 N.Y.S.2d at page 896. ‘In order that plaintiff might properly plead this adultery, an order for the issuance of a supplemental complaint should have been obtained by plaintiff so that it might embody facts occurring after the institution of the action.’

Another reason for permitting consideration in a divorce case of acts of the parties subsequent to suit filed is the following rule applying to equity suits (and, of course, a suit for divorce is in equity): ‘It is a settled rule that a court of equity having jurisdiction of the parties and of the subject matter will make a final disposition of the litigation governed by the circumstances as they are shown to exist at the time the decree is made rather than at the inception of the litigation.’ Mercer Casualty Co. v. Lewis, 41 Cal.App.2d 918, 922–923, 108 P.2d 65, 67. Appropriate here is the language of Rosicrucian Fellowship v. Rosicrucian etc. Church, 39 Cal.2d 121, 135, 245 P.2d 481, 490: ‘Inasmuch as this action is in the nature of an equitable proceeding, the court may consider the facts as they existed at the time of trial so that the interests of justice may be subserved.’

In our case, the supplemental complaint was a proper proceeding and the issue of defendant's adultery was properly before the court.

2. What is effect of court's findings on the adultery cause of action?

While the court found that the charge of adultery was untrue, it nevertheless found that defendant shortly after the action was brought indulged in repeated acts of sexual intercourse with women other than plaintiff. As ‘Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife’, Civ.Code, § 93, the court, in fact, found that defendant had committed adultery. It is obvious that the court's findings are contradictory unless, as apparently the trial court believed, adulterous acts committed after suit filed cannot constitute the ground of adultery in a divorce action.1 This was the ruling in Renner v. Renner, supra, 12 A.2d 195, 198. There the court stated: ‘In the Ecclesiastical Courts of England, either party to a divorce suit was allowed to enter supplemental proceedings to show that acts of adultery had been committed by the other party after the commencement of litigation, and a decree could be obtained thereon. But in most of the American Courts the rules of Equity practive have been applied to actions for divorce with the result that adultery committed by a defendant subsequent to institution of suit can not be used as the basis for a decree. Maryland has followed the prevailing view that testimony as to acts of adultery by a defendant after institution of suit is inadmissible.’

However, in Connecticut it was held that in a divorce on the grounds of habitual intemperance the trial court properly admitted evidence concerning both parties' intemperance subsequent to the commencement of the action. Each party had sought divorce on the ground of the other's intemperance, Allen v. Allen (Barber v. Barber) 1900, 73 Conn. 54, 46 A. 242.

In Arix v. Arix, 1920, 212 Mich. 438, 180 N.W. 463, it was held that evidence of the plaintiff's adultery after she filed her complaint but before the defendant filed his cross-complaint was admissible. ‘The mere filing of her bill of complaint did not cancel the marriage relation between her and defendant, and any evidence of misconduct on her part subsequent to that date and before the filing of the cross-bill and the hearing thereon was competent as bearing upon the rights of the parties.’ 180 N.W. at pages 463–464.

In Allen v. Allen (Barber v. Barber) supra, 46 A. 242, the court pointed out that while the assent of both parties is necessary to a marriage, the relationship of the parties thereafter is not merely contractual but is a status in which the parties ‘stand to each other, towards all other persons, and to the state.’ 46 A. at page 242. It is a relation from which the parties cannot separate themselves by their own agreement or by their own misconduct. ‘When an attempt is made, through the courts, to undo a marriage, the state becomes, in a sense, a party to the proceedings,—not necessarily to oppose, but to make sure that the attempt will not prevail without sufficient and lawful cause, shown by the real facts of the case, nor unless those conditions are found to exist at the time the decree is made upon which the state permits a divorce to be granted. The state has an interest in the maintenance of the marriage tie, which neither the collusion nor the negligence of the parties can impair.’ 46 A. at page 242. It has even been held that the parties to a divorce action do not have the right to control procedure as in other actions. Grannis v. Superior Court, 146 Cal. 245, 252, 79 P. 891; see also In re Lazar, 37 Cal.App.2d 327, 330, 99 P.2d 342.

In Rackham v. Rackham, Utah, 1951, 230 P.2d 566, the defendant husband filed a counterclaim one month after the commencement of a divorce action by the wife. In it he alleged that she was consorting with another man. At the trial the wife objected to evidence of what she did after she had filed the suit on the ground it was immaterial. The trial court admitted evidence of the ‘meretricious relationship between plaintiff and a paramour’, 230 P.2d at page 569, and granted the defendant a divorce on the ground set forth in the counterclaim. The reviewing court held that the action of the trial court was proper. While there was evidence indicating that the meretricious relationship had existed prior to suit filed, and the court does not discuss its holding, the case is authority for the proposition that acts of adultery committed subsequent to suit constitutes grounds for divorce.

In California there are two cases considering the question. The second case, Johanson v. Johanson, 1910, 12 Cal.App. 635, 108 P. 55, is not in point. There the trial court rejected evidence of the husband's visits to a house of prostitution about two months after the filing of the action in which the wife was seeking divorce on the grounds of adultery, she having charged the adultery occurred in a brothel prior to suit. The evidence was offered in support of the specific charge to show the habits and inclinations of the husband. The court said, 12 Cal.App. at page 636, 108 P. at page 56: ‘* * * the evidence sought to be elicited by this question related to conduct long after the commencement of the action, and in no degree can the same be said to establish the commission of the offenses alleged to have been committed before the filing of the complaint.’ It then stated that assuming the evidence admissible to show the intent with which the defendant visited the brothel on the date charged in the complaint (and which visit the trial court found to be innocuous) the error, if any, in its rejection was not prejudicial as the intent with which he made that visit was immaterial as no act of adultery occurred. The court did not discuss the question involved here, as to whether adultery after suit filed may be a cause of divorce. The first case, Conant v. Conant, 1858, 10 Cal. 249, is interesting. There the wife sued for divorce on a number of grounds including adultery. The husband answered alleging desertion (but not for the statutory period). The wife offered no evidence in support of any ground of divorce other than adultery. Her evidence on this subject related to acts committed more than a year after the court found that without cause she had ‘deserted the residence’ of her husband (at that time desertion to constitute a ground of divorce must have existed for two years). The court discusses at length the subject of recrimination as related to various grounds of divorce and then held that as the grounds of adultery were established the wife's acts in leaving the husband without cause for a time less than the statutory period for desertion, could not constitute a defense against divorce from bed and board, but did constitute a defense against divorce a vinculo matrimonii. This case, of course, did not deal with adultery after suit filed, but merely with adultery after separation of the parties.2

It would appear that the decision in Renner v. Renner, supra, 12 A.2d 195, to the effect that adultery committed after suit filed cannot constitute grounds for divorce, was, to some extent at least, a matter of pleading, for the court stated, in effect, that to make it such the plaintiff merely needed to start her divorce action all over again. We have heretofore discussed the liberalized attitude of California courts towards pleading. As pointed out in Allen v. Allen (Barber v. Barber) supra, 46 A. 242, it is the condition existing at the very time the divorce is granted that is important in determining the disposition of a divorce action. Therefore adultery committed after suit brought can be a ground of divorce. But the court, although finding in fact that adultery had been committed by defendant, refused to find it to be adultery in law. Thus the court failed to find on a material issue. If it be deemed a finding of adultery in law then we have a finding that plaintiff had grounds for divorce,—defendant's adultery, and defendant had grounds for divorce,—plaintiff's extreme cruelty. This brings us to a determination of what the court should do where it finds both parties to have divorce grounds. This in turn requires a consideration of DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, 250 P.2d 598, and other authorities.

Divorce to both parties?

In the DeBurgh case both parties asked divorce on the ground of extreme cruelty. The trial court found that each party was guilty of extreme cruelty and denied a divorce to either because it held that the cruelty of each constituted recrimination as to the cruelty of the other. On appeal the reviewing court reviewed the doctrine of the application of recrimination in California. It pointed out that the doctrine of recrimination as an absolute bar to a cause of action for divorce came about through the erroneous discussion of the subject in Conant v. Conant, supra, 10 Cal. 249, and stated that the rule of that case was repudiated by the Legislature in the adoption in 1872 of the present Civil Code sections 111 and 122. It then stated the rule to be—that recrimination will not be a bar in every case, but only in the discretion of the trial court; that there is no precise formula for determining when a cause of divorce,3 shown by one party should be a bar to a cause of divorce shown by the other, but that the court is clothed with a broad discretion to advance the requirements of justice in each particular case. Generally, it said, there are certain major considerations which should govern the court's decision: (1) the prospect of reconciliation; (2) the effect of the marital conflict upon the parties; (3) the effect of the marital conflict upon third parties, children and community; and (4) comparative guilt. The court then stated, 39 Cal.2d at page 873, 250 P.2d at page 606: ‘It is essential that findings be made on every material issue raised by the pleadings. [Citations.] As we have seen, whether or not the cause of action proved against each spouse is to be regarded as in bar of the cause of action proved against the other spouse is a material issue and must be expressly decided by the trial court before it may be said that recrimination has been decided.’ It further stated that upon remand of the case, the trial court might decide that one of the parties should be granted a divorce, or that a divorce should be granted both parties.

Applying the principle of the DeBurgh case to our case, we find that (1) the court should have found on the issue of adultery raised by the pleadings; (2) the court should have found whether or not both parties were entitled to a divorce inasmuch as both had grounds for divorce. In determining this question it would be advisable to bear in mind the major considerations suggested in the DeBurgh case: (1) The prospects of reconciliation. Apparently from the evidence here there are none. (2) The effect of the marital conflict upon the parties. (3) The effect of the marital conflict upon third parties. There are no children, so the inquiry here will be restricted to the effect on the community. If public policy permits a complete disregard of the fact that defendant committed adultery, such a policy might result in the general belief that once a spouse feels that the marriage relation should be severed because of the actions of the other spouse, or because the other spouse has filed suit for divorce, the former is completely free to commit adultery at will. In Jeppi v. Jeppi, 179 Md. 698, 18 A.2d 207, 210, it was held that the husband's previous desertion of the wife was not a defense to the wife's subsequent adultery. In Arix v. Arix, supra, 212 Mich. 438, 180 N.W. 463, 464, it was held that the mere filing of a complaint for divorce did not cancel the marriage relations between the parties and that evidence of misconduct on the part of the plaintiff subsequent to the filing of the complaint and before the filing of a cross-complaint was ‘competent as bearing upon the rights of the parties.’ (4) The comparative guilt of the parties. As said in the DeBurgh case, 39 Cal.2d at page 866, 250 P.2d at page 602: ‘Although the plaintiff's fault has always been regarded as an important element in the decision of any case, our courts have traditionally refused to exalt that element above the public interest.’ (See discussion throughout the DeBurgh case of the necessity of applying in divorce cases the doctrine of clean hands.)

The fairness of the rule of the DeBurgh case is shown by the situation in this case. The trial court stated at the end of the case that although it was granting the divorce to defendant it intended to grant alimony to plaintiff. Because of its belief that the adultery committed subsequent to the filing of suit could not be considered as grounds of divorce, and of the rule that the court may not grant alimony to a party not having grounds for divorce, the court was prevented from carrying out its intention. After seven years of married life, plaintiff was left practically penniless. True, the court found that the two homes were joint tenancy properties. But they were heavily mortgaged and plaintiff had no funds from which to meet the mortgages. From subsequent proceedings filed in this court we learned that the properties were lost to plaintiff by foreclosure proceedings at which defendant became the purchaser. With the evidence showing that plaintiff as well as defendant had grounds for divorce, the case cries aloud for the application of the rule of the DeBurgh case, namely, a determination by the trial court of the rights of the parties in the face of that fact.

In Phillips v. Phillips, 41 Cal.2d 869, 264 P.2d 926, the trial court found that each party had a cause of action against the other on the ground of extreme cruelty and denied each a divorce on the ground of recrimination. The reviewing court applied the rule of the DeBurgh case and held that the trial court erred in denying a divorce, and reversed the judgment, stating that on retrial the court must determine whether one or both parties should receive a divorce.

In view of our decision herein and as this case will have to be retried, we deem it unnecessary to discuss the other questions raised on the appeal.

The judgment is reversed.

FOOTNOTES

1.  As we have heretofore pointed out in considering the supplemental pleading, the issue of plaintiff's adultery was properly before the court. We will now consider the cases which seem to hold that adultery occurring after suit filed cannot be ground for divorce.

2.  In DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, at page 863, 250 P.2d 598, the discussion in the Conant case, supra, is characterized as ‘erroneous.’

3.  See 41 Cal.L.Rev. 320, for an extensive discussion of the doctrine of recrimination and the effect of the DeBurgh case.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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