I am unable to concur in the holding of the majority that recrimination is a defense to divorce in this state. It is, I believe, universally recognized that the Legislature has power to prescribe the causes affording grounds for divorce, and that where a statutory ground is shown to exist, the court has no discretionary right to deny a divorce.
The material part of our divorce law is now embodied in chapter 54 of the Laws of 1933, which reads as follows:
"Section 1. That Section 22, Chapter 62, Laws of 1901, (Section 68-501 of 1929, New Mexico Statutes Annotated) be and the same is hereby amended to read as follows:
"`68-501. Grounds for Divorce. The several District Courts within and for the State of New Mexico are hereby vested with full power and authority to decree divorces from the bonds of matrimony for any of the following causes:
"1. Abandonment.
"2. Adultery.
"3. Impotency.
"4. When the wife, at the time of the marriage, was pregnant by another than her husband — said husband having been ignorant thereof.
"5. Cruel and inhuman treatment.
"6. Neglect on the part of the husband to support the wife, according to his means, station in life and ability.
"7. Habitual drunkenness. *Page 485
"8. Incompatibility.
"9. The conviction for a felony, and imprisonment therefor, in the penitentiary, subsequent to the marriage."
No reference is made to recrimination in the statute, and the rule is stated in 19 C.J. 94, note c, as follows: "Where divorce statutes make no reference to recrimination the court will assume that the legislature intended to adopt the general principles which had governed the ecclesiastical courts in England in respect thereto, so far as those principles are applicable and reasonable. Morrison v. Morrison, 142 Mass. 361, 8 N.E. 59, 56 Am. Rep. 688; Robbins v. Robbins, 140 Mass. 528, 5 N.E. 837, 54 Am. Rep. 488." Those principles are not applicable or reasonable where incompatibility is ground for divorce. This ground was added by the 1933 amendment.
This statute is to be construed as a whole. If recrimination is a good defense to a suit for divorce on one statutory ground, it should be equally effective as a defense to a suit on any ground listed in the statute. "Recrimination" is well defined in 29 Mich. Law Review, p. 232 — 7:
"Divorce — Recrimination as a Defense. — `If both parties have a right to divorce, neither party has.' This judicial pronouncement, paradoxical and puzzling as it may seem, at least to the lay mind, nevertheless embodies the kernel of the doctrine of recrimination as it is applied in divorce cases by modern courts. One party seeks divorce and proves beyond doubt that he or she is entitled to relief. But, if it is found that the complaining party too, is guilty of conduct for which a divorce may be granted, the court turns a deaf ear to both. For, in the oft quoted words of Chancellor Wallworth, the parties in that case are suitable and proper companions for each other. The law refuses to destroy their marriage relationship under these conditions despite the fact that the double offense renders slight the chance that the marriage will be of further social value. The venture is left a derelict for the parties to salvage as best they can.
"A doctrine whose application leads to such results may well be scrutinized. Approached from the historical standpoint we find it at least possessed of the sanction of time. Its origins are ancient. It appeared in the Mosaic Code. Sir William Scott, afterward Lord Stowell, explained the rule and its early application in Forster v. Forster (1790) and Proctor v. Proctor (1819), cases which are often referred to by writers on the subject. He found its source in the rule of compensatio criminum of Roman law. This rule, the effect of which was that equal offenses cancelled each other, was applied by the Roman magistrates when the husband interposed the wife's adultery as a defense to her application for dower. Its application allowed the wife to defeat this defense by showing the husband's own adulteries. The canon law adopted this doctrine and applied it in actions for judicial separation. Its application, however, did not receive the whole-hearted approbation of the judges and in this respect none are more enlightening *Page 486 than Sir William Scott himself. Hardly two years on the bench when he decided Forster v. Forster, he had no doubt that recrimination was a `good moral and social doctrine.' Twenty-nine years later, at the mellow age of seventy-four and during his last year as a consistory judge, he regretted that he was obliged to adhere to the rule. The return to cohabitation, which the canon law presumed to take place when the court refused a separation, Scott knew did not take place. He felt, too, the danger of spurious offspring and the difficulties of separate debts, and wished that a competent authority would provide another rule. These fears did not prevent the continued application of the doctrine, however, nor its infiltration from the ecclesiastical law into our own."
If the recrimination doctrine prevails, "incompatibility" would be a defense to a suit for divorce brought upon the ground of "incompatibility." Such a theory would hardly be suggested by any one who understands the meaning of the word.
"Incompatibility" is defined by the Century Dictionary as: "The quality or condition of being incompatible; incongruity; irreconcilableness." And Webster's New International Dictionary: "Quality or state of being incompatible; inconsistency; * * * incapable of harmonious combination; incongruous; as, incompatible colors; incapable of harmonious association or acting in accord; disagreeing; as incompatible persons. * * *" Pope's Legal Definitions gives the following: "Incompatibility. `The elements and qualities which may create incompatibility between persons elude exact definition, so varied are the circumstances and so dependent is such a state of feeling upon education, habits of thought and peculiarities of character. It must be assumed that the parties understood the wide signification of the word and used it understandingly (in a contract for employment that could be annulled for "dishonesty, incapacity, incompatibility or breach of the agreement") * * * The word is not a word of art, or of technical or local meaning, or having two distinct meanings, circumstances which have been held to justify parol evidence of the meaning of a word used in a written contract. (Greenl. Ev. § 295.) The largeness of the meaning of the term * * * is no reason for limiting its interpretation, nor does it furnish any reason for permitting parol evidence in explanation.' Gray v. Shepard, 147 N.Y. [177], 180 [41 N.E. 500]."
The courts in states where incompatibility is not a ground for divorce have thrown light on the meaning of the word:
Esenwein v. Esenwein, 105 Pa. Super. 261, 161 A. 425, 426: "These people did not get along well together, but incompatibility of temper is not a ground for divorce."
Morris v. Morris, 108 Misc. 228, 177 N.Y.S. 600, 601: "Mere disagreements, lack of domestic harmony, or incompatibility of temper do not furnish the basis for relief. Umbach v. Umbach,183 A.D. 495, 171 N.Y.S. 138." *Page 487
Umbach v. Umbach, 183 A.D. 495, 171 N.Y.S. 138: "Squabbles, wordy altercations, unkind and exasperating, or even insulting, words, used in the heat of passion, fanned by bickerings, do not constitute cruel and inhuman treatment. Unfortunately for our weak nature, these things are very human. Nor do these things constitute conduct which renders it unsafe or improper to live together. Incompatibility of temper is not a cause either for divorce or separation under our law. The view of this court on this subject, which we still entertain, has been recently set forth in Donohue v. Donohue, 180 A.D. 561,167 N YS. 715."
Sachse v. Sachse, 107 N.J. Eq. 41, 151 A. 744, 747: "It is undoubtedly true that there was more or less wrangling between the parties, generally caused by incompatibility of temper, and for that reason they did not live as happily together as they should have done; still no cause of extreme cruelty is proved."
Krotz v. Krotz, 209 Iowa, 433, 228 N.W. 30, 32: "Does this record reveal such cruel and inhuman treatment on the part of the wife as to imperil the life of her husband? Does it reveal such cruel and inhuman treatment on the part of the husband as to imperil the life of the wife? We answer both questions in the negative. We have frequently held that incompatibility of temperament is no ground for divorce. To grant either party the relief asked in this action would be to so construe the statute that the relief asked should be granted for the mere asking; such is not the law."
Hengen v. Hengen, 85 Or. 155, 166 P. 525, 528: "It was earnestly argued at the hearing that the parties were irreconcilable, that it was impossible for them to live together in peace, and that the defendant ought to take the $11,000 and let the decree stand. Incompatibility of temper, however, is not a ground for divorce under the laws of this state, and to approve the money feature of this decree would be to say, in effect, that a divorce may be purchased by a party desiring it whether he is at fault or not. As we have shown by his own testimony, the plaintiff is largely deserving of censure in his conduct towards the defendant, and is therefore not entitled to relief in a court of conscience."
When the Legislature wrote this additional ground of divorce into our law, they intended to afford a remedy for a spouse incompatible with his or her mate, and that too without regard to the wishes of the other spouse, or the fact that the other spouse might have a ground for divorce. It is a recognition of the fact that in many cases both spouses are to blame, as said in Stiles v. Stiles, 224 Ky. 526, 6 S.W.2d 679, 680: "If the wife were required to be entirely without fault before she could ask a support from her husband, it would work a great hardship upon the wife, and give an undue advantage to the equally faulty husband, *Page 488 since divorces are generally the result of imperfections of character of both husband and wife."
The case of Oertel v. Oertel, 145 Md. 177, 125 A. 545, 546, sets forth a state of facts which falls within the class for which a remedy is provided by the "incompatibility" amendment: "The case records the effort of one party to an unhappy marriage to free herself from the bonds of matrimony which link together two people neither of whom appears to be wicked or vicious, but who are, according to their testimony, temperamentally unsuited to live together. Temperamental incompatibility, however, is not a ground for divorce in this state, and no matter how desirable it may be as a moral abstraction that two people should be divorced who cannot live happily together and no matter how injurious it may be to them or to either of them to continue to live together subjected to bonds which have become galling, nevertheless a divorce cannot be granted to either of them unless for causes recognized by the state speaking through the Legislature as sufficient for that purpose, and under the laws of this state a divorce a mensa et thoro will be decreed only where the established facts of the case show cruelty of treatment, excessively vicious conduct, abandonment, or desertion."
The responsibility of determining the wisdom or righteousness of this act is not ours. The legislative branch of the state has made it law. Its meaning is plain, and, to my mind, recrimination is not available as a defense under it.
However, I concur in the reversal of the judgment of the district court for the reason that the trial court refused to consider evidence, which tended to prove that appellee was living with another man, in connection with the allowance of alimony — apparently the real bone of contention in the case. The appellee has no child. If she is living with another man the appellant should not be required to support her, or contribute to her support, out of his separate property.