The majority opinion is so different from what I conceive the law to be and works such an unnecessary hardship upon the parties that I feel constrained to give my reasons for dissenting.
I fail to see any collusion on the part of the husband in entering his appearance and agreeing that the proof might be taken and the cause submitted without notice to him. Our statute (KRS 403.030) traverses the averments of a petition for divorce and makes proof necessary. The same character of answer (there called a stipulation) was filed by the defendant wife in the recent case of Dyer v. Dyer, 300 Ky. 559, 189 S.W.2d 842, and we did not hold that she was guilty of collusion. It is difficult for me to understand why the answer in the instant case was condemned in such scathing words, "A more graphic picture of collusion could scarcely be made even by express admission," when we accepted practically the same answer in the Dyer opinion as being a proper pleading.
May I ask how the profession is to be guided by our opinions if in one case we approve a pleading as proper, and, without overruling the first opinion, approximately two years later condemn in most vigorous terms practically the same pleading?
The chancellor and the majority of the court held that the proof did not show an abandonment by the defendant of his wife. Appellant testified in simple but plain and unambiguous words that they were married on Aug. 3, 1942, and separated September 3rd of that year, when he abandoned her. She further testified, "It was his fault we separated." She then stated they had not lived together since his abandonment of her and they had neither property nor children.
The appellant's father testified: "Yes, they separated. They separated in September, 1942. It was her husband's fault. When he returned from the army, he *Page 794 ignored her and did not make any effort to support her." In my judgment, this is abandonment, and the record shows it continued from 1942 until this suit was filed March 31, 1947.
The proof was taken by interrogatories. Why, I do not know — perhaps, to save expense. It is commonly known among lawyers that the less expensive manner of taking proof is upon interrogatories. But it is the most unsatisfactory because it has not the ring and does not carry the convincing force of depositions.
The chancellor in his opinion complains that the questions were leading and this court complains that the proof was not clear and convincing. It is difficult to take proof upon interrogatories without the questions being somewhat leading, and practically impossible to obtain clear and convincing proof by this method. But nobody objected to the leading questions. Indeed, there was no one to object, and it is a well-known procedure that unless an objection is made and preserved, it is waived. So why be so technical about this non-contested divorce case? I think the cases cited in the majority opinion can be distinguished from the instant one, but will not take the time and space necessary for that.
The majority opinion says much about the sacredness of the marital relation and implies that the sanctity of the home is at stake in this relatively unimportant case. Without meaning any disrespect to this couple, I doubt if there was any vast amount of sacredness involved when this sixteen year old girl married and lived with defendant a month. And I doubt if they even had a home. Be that as it may, it is better for them and better for society generally to grant them a divorce than to refuse it and turn them out in the world without status or standing in our social system. They are neither married nor are they divorced, consequently, they are shunned by all.
There is no good reason to make this young couple go into all the disagreeable details of their separation and turn their lives wrong-side-out and make a public record which may embarrass them and their friends as long as they live. Human nature is usually shown at its worst in the divorce courts, where often small differences *Page 795 are magnified into great offenses. The stature of very few couples would be heightened by exposing to the public gaze their domestic difficulties in detail. It seems that the appellant has attempted to state only so much of her difficulty with her husband as is necessary to obtain a divorce. But the chancellor and this court have said in effect, "No, that is but a conclusion and the sacredness of the marital relation requires this sixteen year old bride to give in full the details of her marital troubles during the month she and her husband lived together," albeit they may be most disgusting, revolting and nauseating.
It is a debatable question whether it is better to grant a divorce on reasonable grounds or to make the grounds so strict that it is most difficult to obtain a divorce. The writer subscribes to that school of thought that the public welfare, the sacredness of marriage and the sanctity of the home are better protected by granting a divorce to people with irreconcilable differences and clashing personalities than to chain them together with what amounts to unholy bonds of matrimony.
The line of demarcation between stating a fact and a conclusion is at times so small as to be infinitesimal. When one says a man is drunk, is sane, is insane, is happy, is angry, is swearing, is praying, talking loudly, is smart or is dull, it is difficult to say whether or not a fact or a conclusion is stated. Likewise, when appellant testified that her husband had abandoned her and that the separation was his fault, her testimony is as susceptible of being construed as a statement of fact as it is of being a conclusion. And when the father testified that the husband ignored and made no effort to support his wife when he returned from the army, he stated a fact constituting an abandonment.
I cannot see the advantage of the chancellor or of this court construing the testimony of this girl and her father as being a conclusion rather than a statement of fact. Especially in the circumstances of this case, where the parties had been living separate and apart for four years and ten months when the judgment was entered, and in view of the fact that KRS 403.020 states living apart without any cohabitation for five consecutive years before suit is filed is a ground for divorce. I *Page 796 fear the chancellor and this court were crusading for the sacredness of marriage and the sanctity of the home, and, like so many crusaders, they lost sight of the real issue and, as did Cervantes' hero, Don Quixote, drew their lance, spurred their steed and attacked a windmill.
For the reasons given, I most respectfully dissent.