Recrimination is not a defense of substantive law. There is no mention of it in our statutes. It arises as a matter of procedure in courts of equity and is based on the "clean hands" maxim.
This maxim is not of universal application even in cases entirely distinct from divorce proceedings. In 21 C.J., "Equity," § 176, the "conduct of adversary" is considered as a limitation on the maxim. It is there said: "The conduct of the other party may be sufficient to prevent the maxim from being applied, as where plaintiff's misconduct toward defendant was invited by him, or waived. The courts incline to measure the comparative guilt of the respective parties and extend relief to one who is comparatively innocent. This *Page 489 situation has usually been presented in cases in which the wrongful conduct of the party seeking relief has arisen through undue influence arising from a trust relationship of the parties, through mental weakness, threats, fear, or oppression and like circumstances which have been regarded as sufficient measurably to excuse the wrongful conduct involved."
In the article on "Divorce" in 19 C.J. § 219, it is said that the doctrine of recrimination rests upon the equitable maxim that he who comes into equity must come with clean hands, and then says: "But the rule is not infrequently relaxed on grounds of public policy or the peculiar exigencies of the case, and comparative rectitude is considered."
In 13 C.J., "Contracts," § 441, it is said: "Although the parties are in pari delicto, yet the court may interfere and grant relief at the suit of one (of) them where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with defendant. But here the guilt of the parties is not considered as equal to the higher right of the public, and the guilty party to whom the relief is granted is simply the instrument by which the public is served."
The courts which refuse to relax the "clean hands" rule, in divorce cases, overlook the fact that marriage is not a mere contract but a civil institution. Divorce statutes are not designed solely for the relief of individual litigants, but partake of the state's paramount interest in the dissolution of a particular marriage status. The interest of society and public morality may be furthered by divorce even though both parties are at fault, if there is no possibility of their reconciliation. It may well be doubted whether the sum total of the public morality is increased by refusing a divorce under such circumstances. The result of refusing the divorce may be that each will become offenders against public morality where there was only one offender before. Divorces are granted for reasons of policy and not as a punishment to one party or a favor to another. Certainly, if reasons of policy require a divorce when one party alone is guilty of a material offense, those reasons are doubled when both are guilty. The home is doubly broken. The bars to cohabitation are doubled and a situation arises to which divorce is the only practical solution. It is a controversial question whether granting or refusing the divorce will be the greater deterrent for the prevention of immorality. The canon law concept of marriage as a sacrament, indissoluble save at the hand of God, brought forth as a by-product the rule of recrimination, and answers the question by refusing a divorce. The modern theory of divorce demands of the chancellor the exercise of a judicial discretion to grant a divorce under some circumstances even though the petitioner himself had committed a fault amounting to a ground for divorce. *Page 490
By section 68-501, Comp. Stats. 1929: "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."
The New Mexico courts, exercising the jurisdiction thus reposed, employ their equity powers. In Nelson on Divorce and Separation, § 19, it is said: "In the absence of a statute no American court has jurisdiction of divorce. Such jurisdiction does not inhere in courts of equity or common law, because neither had jurisdiction of divorce when we derived our law from England."
In Hodges v. Hodges, 22 N.M. 192, 159 P. 1007, it was decided: "4. The ecclesiastical law of England in regard to marriage and divorce has never been adopted in its entirety in America. Only such portions thereof as have been formulated into statutes have been adopted, and such statutes form the sole basis of jurisdiction of the courts in this state. There is no power vested by statute in the courts of this state to award a limited divorce, or a legal separation, and hence no such power exists." This was later reiterated in Ex parte Sedillo, 34 N.M. 98,278 P. 202, 204, where we said: "The ecclesiastical law of England is no part of the common law of New Mexico, and the jurisdiction over matters of this kind is statutory."
In the case of Redington v. Redington, 2 Colo. App. 8,29 P. 811, relied upon by Brother ZINN in the proposed opinion, the court said, with reference to the law governing recrimination: "In the hopeless conflict among the authorities, both English and American * * * we must follow what seems to be the current of the main stream of judicial determination, influenced perhaps by our own judgment of what the law should be in such cases."
It is not safe to rely upon a statement that the weight of authority is in favor of complete recrimination as a defense. Some of the decisions have been affected by statutes in the various jurisdictions. Even where statutes make recrimination a defense, the statutes have put a limitation upon the doctrine, as, for instance: "When the offence shall appear to have been committed by procurement or with the connivance of the plaintiff." See reference to Wisconsin statute in Nelson on Divorce, § 432.
In the same section Nelson says: "Where a statute provides that divorces may be granted to `the parties injured', some importance is attached to this expression. It is held that one who has deserted without cause cannot obtain a divorce for a subsequent adultery of the other, because the desertion conduced the offense complained of, and therefore the deserter is not an injured party. Citing cases. `No husband', it is said, `can *Page 491 have the bonds of matrimony dissolved by reason of the adultery of the wife committed through his allowance, his exposure of her to lewd company, or brought about by the husband's default in any of the essential duties of the married life, or supervenient on his separation without just cause.'"
The following are a few illustrations of statutes making recrimination a defense:
Idaho Revised Statutes 1887, § 2464: "Divorces must be denied upon showing: 1. Collusion; or 2. Condonation; or 3. Recrimination; or 4. Limitation and lapse of time."
Section 2466 is as follows: "Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce." See Crawford Moses' Digest (Ark.) § 3507 to similar effect. See, also, Wisconsin Statutes 1929, § 247.10.
It has been suggested in conference that statutes of this character are merely an attempt by the Legislature to express their view of certain common-law principles which are applicable to the trial of divorce cases. But as was said in Hodges v. Hodges, the principles of ecclesiastical law have not been imported into our New Mexico jurisprudence.
My argument is that since the Legislature has not made recrimination a defense amounting to a bar to a decree of divorce where a ground of divorce exists, and the doctrine of recrimination has never been declared in New Mexico by our courts of last resort, and we now having a case of first impression before us, we should not assume to declare for the state a policy so strict as that proposed by the majority. The case of Green v. Green, 125 Md. 141, 93 A. 400, Ann. Cas. 1917A, 175, L.R.A. 1915E, 972, and the annotation following it, shows some of the variations of statement as to how far the doctrine of recrimination will be applied. For instance, the Texas courts say: "Recrimination as a defense is available only where the defendant's acts relied on were induced by or in retaliation of the plaintiff's conduct and were of the same general character and such as are reasonably calculated to provoke the defendant's misconduct." See Schouler Marriage, Divorce and Domestic Relations, § 1724.
The Legislatures of Oklahoma and Kansas have vested their courts with a discretion with respect to the application of the doctrine of recrimination. The courts of Washington seem to have assumed discretionary power independent of statute. Thus a guilty petitioner may be given a decree if the courts believe the parties can no longer live together. One case indicated that the Michigan courts might develop a discretionary power without statutory aid. However, this intimation was later refuted. A number of states have limited the doctrine of recrimination by the principle of "comparative rectitude"; *Page 492 i.e., if the parties are not in equal guilt, a decree is given to the one who has committed the lesser offense.
It does not seem to me that an act of the Legislature is necessary to enable courts of equity to apply with judicial discretion the maxims of equity including the "clean hands" maxim, any more than it is necessary for the court to find legislative authorization to make use of the doctrine of recrimination, where the court feels warranted in employing it. Where our Legislature has enacted what was intended to be a complete code on the subject of divorce and has omitted making it the imperative duty of the chancellor to deny a divorce upon the showing of recrimination, the chancellor as a representative of the rights and interests of the general public existing in divorce cases has power to go beyond the pleadings of the husband and wife and render such decree as should be proper for the preservation of such rights and interests of the public. In the exercise of such power the extent to which the doctrine of recrimination will be applied is within the judicial judgment and discretion. Decker v. Decker, 193 Ill. 285, 61 N.E. 1108, 86 Am. St. Rep. 325. It would be strange if the chancellor would have no power to grant a divorce where the parties can no longer live together because through faults and misconduct of each they had become mutually repelling, discordant, and irreconcilable and at the same time have power to decree divorce on the ground of "incompatibility."
Our Legislature has said that the district courts are vested with full power and authority to decree divorces for any of the causes enumerated in the statute. In the case at bar, the court found that the defendant willfully and without cause deserted and abandoned the plaintiff, and still continues so to willfully and without cause desert and abandon the plaintiff and to live separate and apart from her, against her will and without her consent. Also that the defendant has not supported plaintiff according to his means, station in life and ability, and that the plaintiff is without means of support, and also that during all the time plaintiff and defendant lived together as husband and wife, plaintiff demeaned herself properly as the wife of the defendant and at all times performed all of her duties as the wife of the defendant and at all times treated him with love and affection.
When the defendant offered testimony for the purpose of proving that the plaintiff, subsequent to abandonment of her by her husband, had been guilty of infidelity, the court refused to consider such testimony, apparently on the ground of immateriality. I do not think it was immaterial, and it was probably error to refuse to consider it. But I cannot subscribe to the doctrine announced by the majority that if the testimony offered proved the wife's infidelity under the *Page 493 circumstances of this case, possibly induced or connived at by the defendant, that the trial court because thereof must deny a divorce to either party. In other words, I cannot subscribe to the doctrine stated in its normal form "if both parties have a right to divorce, neither has."
There is nothing in the older statutes of New Mexico nor in our decisions to indicate a declaration of policy that refusing a divorce where both parties are offenders will be the greater deterrent for the prevention of immorality and for the public welfare. Whereas, the introduction by the Legislature of 1933 of "incompatibility," as a cause for divorce, plainly indicates a declaration of policy that the district courts have full power and authority to decree divorces from the bonds of matrimony when the court is satisfied that the parties can no longer livetogether. I have emphasized the last phrase because apparently that is what is meant by incompatibility. Century Dictionary gives, as synonyms of "incompatibility," "unsuitable, discordant, irreconcilable," and defines the term incompatible as "incapable of harmoninzing or agreement. * * * Mutually repelling." Schouler, Marriage, Divorce and Separation, § 1667, is as follows: "1667. Incompatibility. Incompatibility of temper and evidence that a couple can no longer live together harmoniously is no ground for divorce except in some states (italics mine) where the cause of inability to live together is not the fault of the plaintiff." As I understand it, "except in some states" is put in parenthetically by the author and New Mexico is one of the exceptions.
In Turner v. Turner, 82 Wash. 518, 144 P. 689, the Supreme Court of Washington decided that where the wife was willing to live with her husband but that the husband refused, and the trial court found "that the parties are wholly incompatible, and that it would be conducive of no good to the parties themselves nor to society at large to compel them to longer recognize the marriage," and granted a divorce, that no error had been committed. In Freeburn v. Freeburn, 107 Wash. 646, 182 P. 620, it was decided: "Where the evidence warranted the trial court in finding that the wife was quarrelsome and impatient with her husband, and that such incompatibility of temperament existed that they could no longer live together, the judgment of divorce for the husband on his cross-complaint was justified."
The power of the court to decree divorce where it is found that the parties are incompatible, i.e., can no longer live together, is inconsistent with the application of the doctrine of recrimination in cases where the court finds in addition to the existence of specific statutory grounds for divorce that the parties can no longer live together. Incompatibility is a condition which may result from causes amounting to statutory grounds for divorce as well as from causes not mentioned as being grounds for divorce. Assuming that the doctrine of complete recrimination at *Page 494 one time existed in this jurisdiction as a part of divorce law, the 1933 amendment indicates a legislative declaration of policy that such rule must thereafter be relaxed in cases where the court finds that the parties can no longer live together.
In the case at bar, the plaintiff, the wife, so said the trial court, was without fault at the time her husband neglected her by failing to give her support and also abandoned her. In addition to this, the court made a finding as to the great disparity of ages of the parties and that the husband was in his dotage. Under these circumstances, I am not prepared to say that if the court had considered the evidence offered and which was disregarded, and had then decided in the exercise of his judicial discretion that the plaintiff was entitled to a divorce, that the decree of divorce granted to plaintiff would not have been correct. The discretion of the trial court in applying the maxims of equity to the facts of a particular case is not a loose and unfettered discretion, but is subject to review for abuse thereof.
From the fact that the court refused to consider the proffered testimony, it is apparent that he did not exercise the discretion of which I have written.
Therefore, because of the error in disregarding the testimony and failing to consider its effect upon the issues, I concur in the decision.