Neither the facts found nor the evidence are sufficient to warrant the granting of a divorce. Both marriage and divorce are regulated by statute, as a matter of public policy, to promote the integrity, sanctity, and permanency of the marriage relation as the very foundation of society. Other contracts and relations may be modified, discharged, and dissolved by agreement of the parties, but the marriage relation cannot. Once the relation is formed, the law steps in and holds the parties to the duties and liabilities arising from it. The law provides the grounds for divorce. Unless those grounds exist, a divorce cannot be granted, even though both parties to the marriage relation desire it and they might be just as well or better off if divorced. Because the grounds for divorce are purely statutory, the state is deemed to be a quasi party in every divorce action in the sense of making sure that no divorce shall be granted except for legal cause. See, In re Ellis' Estate, 55 Minn. 401, 56 N.W. 1056, 23 L.R.A. 287,43 A.S.R. 514.
It seems clear that the judgments below, as well as their affirmance here, rest upon the proposition that the parties made an imprudent marriage, and that, because of that fact, the court ought to extricate plaintiff, not only from the marriage, but also from its consequences and those of his imprudent transfers of property to defendant prior thereto. It should be remembered that, after all, the situation in which the parties find themselves is of their own making. Neither of them was influenced to marry by the ordinary ideals connected with the nature and purposes of the marriage relation. Neither of them had any affection or esteem for the *Page 355 other or a purpose to contribute to their common happiness. Defendant's prime purpose was to better herself financially. Plaintiff had no deep-seated feeling about the matter and got married, as the evidence shows, for no better reason than that he might just as well do so as not. They should have realized, if they did not, that at best their marriage was based upon convenience, indifference, and selfishness. That being true, their troubles were natural consequences of their conduct. However hard plaintiff's plight may be, he is not entitled to a divorce except upon legal grounds. We may feel a sympathy for him because he was old and foolish, but that is no reason for granting him a divorce. Old fools as well as young ones must bear the consequences of their own follies.
THE DIVORCE CASE 1. A finding of cruelty is based upon the fact that defendant left plaintiff on May 14, 1942, and remained away from his home until the time of trial. The divorce action was commenced on June 30, 1942. After that date defendant had no right to return to plaintiff's home. Her absence therefrom was for a period of about one and one-half months prior to the commencement of the divorce action. Desertion is a specific ground for divorce, but only where it is wilful and continuous for one year next preceding the commencement of the action for divorce. Minn. St. 1941, § 518.06(5), (Mason St. 1927, § 8585, subd. 5). While a divorce could not be granted here upon the ground of desertion, because of the fact that the alleged desertion had continued for but a fraction of the required statutory time before the commencement of the action, it is nevertheless made a ground for divorce in fact by holding that it is cruelty. This cannot be legally done. Each statutory ground for divorce is specific. Some grounds contain an element of cruelty, as, for example, adultery, drunkenness, and desertion. The fact that each is made a specific ground evinces a legislative intention that the ground asserted in a particular case must be established as such and that proof of one ground shall not be deemed to be proof of another. To permit one ground to be established by proof *Page 356 of another would wipe out the statutory requirement of proof of specific grounds for divorce. It would do indirectly what cannot be done directly; it would permit a divorce to be granted for desertion as cruelty where it could not be done for desertion as such. Consequently, the cases hold that absence from home or unjustified desertion does not of itself constitute cruelty so as to entitle the deserted spouse to a divorce. Landry v. Regira, 188 La. 950, 178 So. 502; Wagner v. Wagner, 203 Mich. 328, 168 N.W. 1019; 17 Am. Jur., Divorce and Separation, § 83.
2. Cruelty is also predicated here upon the fact that defendant, as plaintiff's employe, interfered with the conduct of his business and countermanded certain orders which he had given to his employes. The parties stood in a dual relation, namely, that of employer and employe and that of husband and wife. When defendant was engaged in performing her duties at plaintiff's place of business she stood ad hoc in the relation of an employe to plaintiff. The acts complained of were committed by her as an employe and not as his wife. They did not constitute cruelty (1) because they did not concern the marriage relation in that they were done by her as an employe and not as his wife; and (2) because the evidence shows as a matter of law that they were not of a grave and serious character.
In considering whether these acts constitute cruelty as a ground for divorce, it is to be remembered, as we said in Pickett v. Pickett, 27 Minn. 299, 7 N.W. 144, that all the prescribed causes for divorce directly concern the marriage relation and consist of acts of misconduct constituting violations of the duties arising out of the marriage relation or neglect of or inability to perform its obligations. Since the acts in question were done by defendant as plaintiff's employe and not as his wife, they did not constitute a violation of any duty arising out of the marriage relation. They were simply breaches of duty by her as his employe. He had the right to discharge her as an employe, but not to divorce her as his wife, for violations of duty as his employe. *Page 357
There are two well-recognized classes of misconduct constituting cruel and inhuman treatment: (1) Those involving actual or threatened physical violence of such a character as to endanger life, limb, or health or to create a reasonable apprehension of it; and (2) such other equivalent and serious misconduct which, unjustified in fact, is so plainly subversive of the relationship of husband and wife as to make it impossible to discharge the duties of married life and to attain its objects, and to be so hopelessly inimical to the health or the personal welfare of the injured party as to render continuance of the relationship intolerable. Williams v. Williams, 101 Minn. 400, 112 N.W. 528. We also said in the cited case (101 Minn. 405, 112 N.W. 530):
"* * * There is universal agreement on the part of all the authorities that the causes justifying divorce for cruelty must be grave and weighty, and such as show the absolute impossibility that the duties of married life can be discharged." (Italics supplied.)
See, Gellar v. Gellar, 159 Md. 236, 150 A. 717; 27 C.J.S., Divorce, § 25, note 99.
It is plain that the misconduct here in question was neither grave nor serious. Plaintiff did not regard the misconduct as serious enough to discharge defendant. That would have been a simple solution of his problem. If she, as an employe, interfered with the conduct of his business, he should have fired her and kept her at home, where she plainly belonged. It had never occurred to him to take any action in the matter until after she had cashed the drafts referred to in the opinion. Then to bolster his divorce case, he claimed that her acts constituted cruelty. In short, conduct which plaintiff did not deem sufficiently grave and serious to warrant discharging defendant from his employment is asserted by him, and held by the court, to be so grave and serious as to constitute a ground for divorce.
3. The fact that defendant requested plaintiff to purchase a larger and more expensive home is no ground for divorce. The evidence conclusively shows that the suggestion came from plaintiff's *Page 358 housekeeper and was concurred in by defendant. Defendant did not press the matter nor did she find any fault with him for continuing their residence in his old home. If such a request can constitute cruelty, every request by a wife to her husband to improve their living conditions would constitute a ground for divorce. This is utter absurdity.
4. The finding that defendant wrongfully nagged and found fault with plaintiff when he was unable to attend church with her is also plainly absurd. The facts are that the parties agreed Saturday evening to go to church together the following Sunday morning because it was Mother's Day; that Sunday morning plaintiff was sleeping on a couch in the living room apparently from drinking to excess as was his habit; that defendant shook and awakened him to inquire whether he was going to church with her; and that she told him that he could not lie there in that condition. It is not cruelty for a wife to rouse her husband from sleep apparently induced by his drunken and stuporous condition, or to protest against his making a nuisance of himself by sleeping in that condition in the living room of their home. Such conduct of the wife is a natural reaction to such misconduct of the husband. Nor is it cruelty for a wife to inquire of her husband whether he would keep his promise to accompany her to church. Such an inquiry is a reasonable one prompted by the wife's expectation of performance of the husband's promise. To hold that the acts in question constitute cruelty is to hold in effect that a wife must suffer in silence whatever indignities her husband may inflict upon her.
5. Two findings of cruelty are based upon the fact that defendant withdrew $14,500 from savings and loan associations by cashing drafts which plaintiff had given to defendant prior to their marriage. The drafts were given to her by plaintiff for the purpose of hindering and defrauding Mrs. Harrison from collecting a judgment, if she recovered one, in a pending suit against him. The understanding was that defendant would retransfer the drafts to plaintiff when the Harrison case was disposed of. It is clear from the testimony of both plaintiff and defendant that the purpose *Page 359 was to hinder and prevent Mrs. Harrison from enforcing her claim by legal proceedings.2 Mrs. Harrison brought an action to recover on her claim. Apparently the case was dismissed before trial. It does not appear that plaintiff was not in fact indebted to her. So far as appears, she was a creditor in fact, and the parties deemed her to be such. Where property is conveyed for the purpose of hindering and delaying creditors, the transferrer cannot maintain an action to set aside the transfer and to recover the property transferred. The law will leave the parties in the position in which they have placed themselves, refusing affirmative aid to either of them. Sawyer v. Harrison, 43 Minn. 297, 45 N.W. 434; Stevens v. McMillin,37 Minn. 509, 35 N.W. 372; 3 Dunnell, Dig. Supp. *Page 360 § 3899. As between the parties, defendant should be deemed the owner of the transferred funds regardless of plaintiff's prior rights or title. But that aside, to hold that the exercise of the wife's right to the transferred funds constitutes cruelty is to hold in effect that, while the wife cannot be compelleddirectly to retransfer the funds, she can be compelledindirectly by making the exercise of her right to the funds a ground for divorce. A wife is not guilty of cruelty for exercising her right not to transfer property, even though it may involve her husband in extreme hardship. Hofman v. Hofman,40 Ind. App. 476, 82 N.E. 477.
The most that can be claimed from the acts in question is that they constitute violations of the unenforceable antenuptial arrangement between the parties that defendant would hold the drafts for plaintiff until the Harrison case had been disposed of. Even if it were conceded that defendant was guilty of misconduct in leaving plaintiff, she would not have forfeited her right to the drafts. In Sparrow v. Sparrow,172 Minn. 91, 214 N.W. 791, we held that rights granted under an antenuptial arrangement are not forfeited by the wife's misconduct after the marriage.
Violation of an antenuptial agreement does not constitute cruelty as a ground for divorce. Wesley v. Wesley, 181 Ky. 135,204 S.W. 165; Owen v. Owen, 90 Iowa 365, 57 N.W. 887. Both of the cited cases involved breaches of antenuptial contracts to transfer and convey property.
The foregoing discussion covers the various acts which are held to be cruelty and sufficient grounds for a divorce. In my judgment, none of them constitute cruelty.
THE HOMESTEAD CASE Plaintiff caused the title to his homestead to be conveyed to himself and defendant in joint tenancy. This was done prior to their marriage. Plaintiff's claim is that he and defendant agreed that after they were married they would continue to live together and that they would hold the property as joint tenants for their joint benefit. He claims that her agreement was fraudulent in that she *Page 361 did not intend to perform it at the time it was made. The court found in accordance with plaintiff's version. In my judgment, the finding is not sustained by the evidence. The only evidence on the point is the testimony of plaintiff's housekeeper, who testified:
"A. Well, she said she believed — she said, 'I believe I will marry him, I will marry him and see him through the Harrison case, whether I will stay after that I don't know, but I believe I will see him through that case.' " (Italics supplied.)
In order to constitute fraud, the representation must relate to a past or existing fact and not to a future one. Fraud cannot be predicated upon an unperformed promise or statement of intention. In order to constitute a fraudulent representation, a promise for a future performance, afterward broken, must be made with the intention at the time of making it of not keeping it. Phelps v. Aurora State Bank, 186 Minn. 479,243 N.W. 682; Maguire v. Maguire, 171 Minn. 492,214 N.W. 666; 23 Am. Jur., Fraud and Deceit, §§ 38 and 106. Fraud can only be established by clear, positive, and convincing evidence. Sprague, Warner Co. v. Kempe, 74 Minn. 465,77 N.W. 412; 3 Dunnell, Dig. Supp. § 3839. The evidence here does not evince a definite intention on the part of defendant at the time the arrangement was made not to perform the contract. The italicized portion of the evidence quoted plainly shows that defendant had not made up her mind at the time the contract was made not to perform it. She said that she did not know whether she would continue to live with plaintiff after the Harrison case or not. Viewing the evidence in the strongest possible light in favor of plaintiff, the statement was at best an equivocal one. Where the evidence is equivocal, an affirmative finding cannot be sustained. Sprague, Warner Co. v. Kempe,supra. In determining whether defendant had no intention to perform the agreement at the time it was made, the court has no right to reject, as it clearly does, the italicized part of the housekeeper's testimony. It is this part of her testimony which is decisive here, because it affirmatively shows *Page 362 that defendant had not at that time formed a fixed intention not to perform — at least it left the matter in equivocation.
I think that there should be reversals in both cases.
2 plaintiff testified:
"Q. Would you tell us what conversation you had with reference to such transfer?
"A. Well, yes, she says if the money — she says if the money was transferred to her it couldn't be garnisheed —
"Mr. Carlson: I want to move to strike out the answer, your Honor, that every night when they got in bed she would razz him.
"The Court: It may be stricken out.
"Q. Going back to those conversations that you had with her before transferring the money, what else did she say, and what else did you say or what did she say?
"A. She says, 'You can just as well put that money into my name and then it will be safe. I don't want the money,' she says, 'I don't want the money,' she says. 'Just as soon as your case is over with Harrison you can have it back.'
"Q. Did you then turn over — I mean did you then transfer title to these two accounts into her name?
"A. Yes, I did."
Defendant testified:
"Q. Explain to the court the circumstances under which the savings accounts were transferred.
"A. Well, there were two reasons, the first was on account of the Harrison case, to protect him against garnishments or anything of that kind. Ethel and he and I had all talked about that and discussed it, what was best to do with everything, with the bank account. He had drawn them out and put it in a cashier's check so they couldn't garnishee the bank account. * * *"