This action is one brought by the respondent to procure a judgment of separation from her husband, the appellant, and to compel suitable provision for her support and maintenance. Its determination will be governed by the application to rather unusual facts of sections 1762 and 1765 of the Code of Civil Procedure.
Section 1762 provides that a wife may have judgment of separation and for support for either of the following causes:
"* * *
"3. The abandonment of the plaintiff by the defendant.
"4. * * * the neglect or refusal of the defendant to provide for her." *Page 411
The respondent alleged and has proved that at a certain date the appellant left her, and since then has refused either to live with her or support her, and on these facts she would be entitled to the judgment which was awarded to her in the court below.
But section 1765 provides that in such an action as this "the defendant may set up, in justification, the misconduct of the plaintiff; and that if that defense is established to the satisfaction of the court, the defendant is entitled to judgment."
Under this section the appellant alleged and has established beyond controversy that his refusal to live with and support the respondent immediately followed and was the result of his discovery that she had been guilty of adultery. On these facts, added to the others above stated, appellant unquestionably would be entitled to judgment dismissing the action, for it is settled that the adultery of the wife relieved the husband from the obligation to support her, and such misconduct is a defense to an action of this character. (Doe v. Roe, 23 Hun, 19; Deisler v. Deisler, 59 App. Div. 207; People ex rel. Keller v.Shrady, 40 App. Div. 460. See, also, Nelson on Divorce and Separation, § 429; Decker v. Decker, 193 Ill. 285, 294.)
But still further facts are established which it is claimed materially qualify the force of those last recited. It appears that the appellant was guilty of adultery before the respondent, although not known to the latter at the time of her offense, and that in an action brought by the former for absolute divorce the latter made a counterclaim based upon the appellant's wrongdoing, and the court on familiar principles refused to grant relief to either party.
Under these circumstances the respondent argues in support of her judgment that the appellant's misconduct somehow prevents him from successfully urging hers under section 1765 as a defense to this action, and especially that inasmuch as the court refused to dissolve the marriage obligation on account of the said mutual acts of adultery said obligation continues in full force notwithstanding those acts and as an incident thereto the appellant can be compelled to support his wife. *Page 412
I am unable to agree with these contentions. In the first place, and disregarding for the moment the judgment in the divorce action, it is to be kept in mind that the respondent is not basing her action on general principles of law under which the court might be urged somehow to set off and balance against each other the mutual misdeeds of the parties and so leave the respondent with all her original marital rights and claims unimpaired. On the other hand, her right of action is based on and limited by the absolute statutory provisions which have been quoted. One of these in effect provides that even though she establishes the usual elements of an action for separation and support, she will not be allowed such affirmative relief based on the marriage contract which she herself has disregarded. It does not favor an assertion of marital obligations which is accompanied or preceded by their violation. This being so and it fully appearing that respondent had been guilty of misconduct which is made a bar under the statute to her recovery, I fail to see how it justifies or excuses her misconduct or changes the nature of her act or avoids the consequences thereof or contributes an element of support to her cause of action to prove that her husband also at some time has been guilty of a similar violation. And especially is this so where, as here, there is no claim that the latter violation, even as a matter of moral influence, conduced to or mitigated the evil of the former. It is also to be borne in mind that this is not a case where the husband has been continuing and living in profligacy while he cast his wife off for a single offense. Of course if the appellant were seeking affirmative relief his conduct would be important and subject to the strictest scrutiny, and no other rule should be applied to him than is being urged against the respondent. But he is not. The respondent alone is seeking legal relief and in my opinion the only material question relates to her act.
Neither do I perceive how the force of this reasoning and conclusion if otherwise correct is affected or impaired by the decree in the divorce action. On the other hand, the logic of that judgment which refused relief with respect to the marriage *Page 413 obligation to the husband who had been guilty of violating it seems to aid the appellant rather than otherwise. Certainly if the respondent is permitted to maintain this action notwithstanding her adultery, she will be enabled to secure part of the very relief which was denied to her in the former action because of such adultery.
There was nothing in that decree which technically bars the appellant from urging the respondent's adultery as a defense in the present action. It refused to give him affirmative relief on account thereof in the former action because of his own similar fault, but that is not inconsistent with his right to urge the same act under the express provisions of the statute as a defense to the wife's request for affirmative relief in this action.
But it is urged that the court having refused to dissolve the marriage tie, all the obligations of that contract, including that of support of the wife by the husband, must remain in full force. And as sustaining this view reference is made to the expression in Wood v. Wood (2 Paige Ch. 108) that "if both parties (to a divorce action) are guilty, neither has any claim to relief; and they are in that case suitable and proper companions for each other," and to the remark in Beeby v.Beeby (1 Hag. Eccl. 790), "It is not unfit if he * * * who has violated his marriage vow should be barred of his remedy; the parties may live together and find sources of mutual forgiveness in the humiliation of mutual guilt."
I do not attribute to these opinions and to the decree any such significance or effect as is claimed for them, but think that the only meaning legitimately to be deduced from them is that the court will not give affirmative relief to mutually guilty husband and wife by dissolving the marriage contract, but will leave them where it finds them subject to whatever burdens of that relation still remain, and the conclusion is not justified that such a decree amounts to an adjudication that all of the original obligations remain unimpaired. Independent of any statutory provision, it might be questioned whether a wife who has been guilty of adultery *Page 414 may successfully insist that her husband shall live with or support her, even though the court has refused to dissolve the marriage relation because of his similar fault. Certainly the decree denying dissolution does not preserve or confer such right in view of the express provisions of section 1765, that the misconduct of the wife shall be a bar to her right to support, for of course the legislature has the undoubted right to annex this consequence to her misconduct, and necessarily the provision making her misconduct a bar to an action for support must apply to a case where there has been no decree dissolving the marriage on account of adultery. If there had been a decree of divorce there would be no occasion for the exemption of the husband from liability for support as a result of such misconduct.
Neither, in view of the statutory provision to which reference has been made, does it avail as an argument to say that the wife's right of dower and of administration on her husband's estate and possibly various other rights continue notwithstanding her adultery, so long as the marriage has been allowed to remain undissolved, and that it is not in harmony with the continuance of these rights that she should lose her right to support. This is a matter of statutory policy. It cannot be doubted that the legislature would have the power to cancel her right of dower and administration because of mere adultery without a decree of divorce founded thereon, and if it had so enacted I can hardly believe that she would have avoided the results of her misconduct by proving that at some time her husband had committed a similar sin. It has been expressly held otherwise in England. (Bostock v. Smith, 34 Beav. 57.)
Authorities are not wanting to sustain the proposition that, independent of any statutory provision such as we have, the destructive consequences to her conjugal rights of the wife's adultery are not prevented or compensated and avoided by similar fault of her husband.
Govier v. Hancock (6 Durnford East, 603) was an action to recover for necessaries furnished to a wife living apart from her husband. It appeared, however, that she had committed *Page 415 adultery after leaving him, and it was held that this exonerated him from liability for her support, although he had first committed a similar act and had otherwise treated her cruelly.
In Bostock v. Smith (34 Beav. 57) it was held that the wife who left her husband and committed adultery came within the statute forfeiting her dower for such offense, even though she left her husband in consequence of his gross misconduct, "which was such as would justify, if anything could justify her act. But nothing could justify it."
In Stimpson v. Wood and Son (L.J. [57 Q.B.] 485) it was in effect held that a wife living in adultery lost all right of support, although her husband was doing the same thing.
In Culley v. Charman (L.R. [7 Q.B.Div.] 89) it was said by HAWKINS, J.: "I do not think there is any need to cite authorities to show that a husband is not bound at common law to maintain a wife who has been guilty of adultery and who is living apart from him."
In Hope v. Hope (1 S. T. 94) it appeared that each party had sought divorce for the adultery of the other, and had been denied relief on account of their mutual misdeeds; that thereafter the wife applied for a decree of restitution of marital rights, which in its important aspects was like the present case, an action to compel support. It was urged "that cohabitation is a duty resulting from marriage and that neither party can withdraw from cohabitation without the judgment of a court, which in this case the husband not only had not obtained, but having asked the proper tribunal to release him from that duty his prayer was rejected; and, secondly, that the guilt of each being the same their mutual delinquencies were compensated and both were restored to their original position as innocent parties." The court overruled both contentions.
And to the same effect are the cases of Drummond v.Drummond (2 Swabey T. 274); Otway v. Otway (L.R. [13 P.D.] 141).
It may be said that these later English decisions are based *Page 416 on the principles of the ecclesiastical law which have not been adopted in this country and, therefore, are not applicable. There may be controversy as to how far the ecclesiastical law has been adopted, and it may be conceded for argument that these decisions would not be useful in interpreting the meaning of our statutes. When, however, the words of a statute being plain, certain facts have been developed under it, we have a right to consider what effect another court exercising jurisdiction over the same general subject and governed by principles not unlike those embodied in our statute, has given to similar facts.
As was said by Judge FOLGER in Brinkley v. Brinkley (50 N.Y. 185, 190), "* * * though it has been held that the ecclesiastical law of England is not a part of the common law of that country, and is not part of the common law thereof adopted in this state * * * yet, when by our statutes any part of the jurisdiction exercised by these courts was given to our courts, the settled principles and practice of those courts became a precedent and a guide for our courts."
The case of People ex rel. Keller v. Shrady (40 App. Div. 460) has not been overlooked, wherein it is written by Judge BARRETT that in criminal proceedings against the husband for abandoning his wife it would not be a defense to show that the wife had been guilty of adultery, it also appearing that the defendant had been first guilty of similar fault which would prevent him from procuring a dissolution of the marriage. It is, however, to be noted that what was thus said was not necessary to the decision of the case, and, secondly, that it was expressly directed to the proposition that under such circumstances the husband would be bound not to permit his wife to become a "public charge." Independent of the Code provision and as a matter of public policy, there very well might be a distinction between proceedings by the guilty party for her individual benefit and those instituted in behalf of the People to prevent the burden of a public charge.
The judgments of the courts below should be reversed and a new trial granted. *Page 417