Plaintiff (appellee) brought suit for divorce alleging desertion and nonsupport. Plaintiff prayed for suit money, alimony, and a division of the community property. Defendant (appellant) answered, denying desertion, alleging that he has been ready and willing to support and live with the plaintiff, countercharging plaintiff with desertion and affirmatively charging plaintiff with "living with one Reuben Garcia, an unmarried man." Defendant denied that there was any community property. Plaintiff in her reply denied the allegations of defendant's affirmative defense. Plaintiff charged that defendant deserted her on July 22, 1933. Defendant charged that plaintiff deserted him on July 25, 1933.
The case was tried on February 10, 1934. The court found the major issue of abandonment in favor of plaintiff.
The court also found that there was no community property, but that the separate estate of defendant amounted to $8,600. The court found that plaintiff is twenty-four years of age, and that the defendant is between seventy and eighty years of age, "decrepit and in his dotage." The plaintiff had requested an award of $4,300 as permanent alimony, to be paid by the defendant out of his separate estate. This was denied. The court refused to find that the plaintiff was unfaithful to the defendant with one Reuben Garcia.
The district court entered its decree, awarding plaintiff an absolute divorce, ordering the defendant to pay plaintiff $30 per month as alimony. From this decree, the defendant prosecutes this appeal. The plaintiff files a cross-appeal from the $30 per month alimony award, contending she should have a lump sum award of $4,300.
It is contended by defendant that the allegation in his answer to the effect that the plaintiff, ever since her separation from him, "has continually since lived and is still now living with one Reuben Garcia, an unmarried man," is, when proved, a bar to plaintiff's suit for divorce, on the theory of recrimination. Defendant contends that the charge and proof conclusively show adultery on the part of plaintiff.
The defendant placed on the witness stand Consuela Ramos, a thirteen year old girl, who testified that one morning between the hour of 7 and 8 she found plaintiff and Reuben Garcia lying together on a cot covered up. She could not testify as to the state of their dress. This transpired subsequent to the separation of plaintiff and defendant. This was denied by plaintiff. The defendant had other witnesses testifying as to familiarities between plaintiff and Reuben Garcia.
It was the province of the court to believe or disbelieve the witnesses testifying before him. He could have accepted the testimony of plaintiff, and rejected that of Consuela Ramos. If we could assume that the trial court's refusal to find that the plaintiff was unfaithful to the defendant *Page 482 with Reuben Garcia, as requested by defendant, was based on the evidence of the plaintiff, which the court believed, and disbelieved the testimony of the witnesses for the defendant, we would be content. However, we are confronted with a more difficult problem.
Plaintiff objected to the introduction of any testimony relating to her alleged actions with Reuben Garcia. The court, though considering the evidence admissible within the pleadings, did not consider it material. The court permitted the evidence to go in, and refused to sustain a motion to strike, but stated: "I don't see the materiality of it — this all happened after the separation."
Apparently the court was under the impression that adultery, if adultery of plaintiff was proven, and which we are not called on to decide, may not be set up as a recriminatory defense, after the desertion or separation, by the deserting spouse. In this the court erred.
Adultery is generally available as a recriminatory charge in all cases. 9 R.C.L. 390. It may be set up as a recriminatory defense by the deserting spouse. The rule is founded upon the equitable theory that whoever appeals to a court for relief must do so with clean hands and with an apparently clear conscience, and one who has committed adultery, though deserted by her lawful spouse, has not a clear conscience and cannot seek the favor of the court.
We quote from a number of decisions, where this question has been considered, and which are applicable here.
"Peculiarly apposite to the present case is the decision in Tracey v. Tracey (N.J. Ch.) 43 A. 713, where the following language is used by Vice Chancellor Grey of New Jersey: `All the cases, however, declare that if the complainant, in proving his case, discloses his own guilt, the court will refuse him relief, even if his misconduct be not pleaded against him. * * * The complainant cannot exhibit to the court his own breach of his marriage vows and successfully ask for relief because of the defendant's failure in marital duty. He comes into the court with unclean hands and cannot rightfully ask its aid. In the case before me, the complainant's breach of his marriage vows appears in his own proofs, by his own oath. The bill should be dismissed.'" Green v. Green, 125 Md. 141, 93 A. 400, 402, L.R.A. 1915E, 972, Ann. Cas. 1917A, 175.
In L.R.A. 1915E, at page 972, we find a note covering cases involving the question before us. We take liberty in quoting at length from the leading case of Redington v. Redington,2 Colo. App. 8, 29 P. 811, where a wife's adultery after her husband's desertion had ripened into a right of action for divorce was held a good recriminatory defense to her action for divorce upon the ground of the desertion.
"It is a rule recognized in all courts, and applicable to all classes of actions, *Page 483 that every suitor who seeks redress at the hands of a court should come unfettered and unsullied by faults and wrongs of his own commission against the contending party. This principle has become aphorized in the law as `clean hands.' It is plainly and palpably violated and infringed whenever a litigant who prays a divorce has been guilty of any act which, under the statute, would furnish the defendant a cause of action as against him. This alone ought to be sufficient to defeat the plaintiff's right of recovery, for she was guilty of a great offense against the marital obligation before she filed her bill. It has never been sufficient, even under the English authorities, to respond that, `Even though this be true, you first sinned, and I may therefore recover.' The law left them where it found them. This conclusion finds strong support in the consideration that under the statute every offense which is thereby made a ground for divorce is of equal force and validity, and, when presented and proved, entitles the litigant to identically the same relief. It is therefore impossible for the courts in determining the obligations of the marriage contract to hold that there is any difference in the legal character of the breaches when their action is invoked upon any one of them. Whatever may be the ethical considerations, and the gravity of the offenses laid in a moral point of view, they are of no value in this respect. Conant v. Conant, 10 Cal. [249], 250 [70 Am. Dec. 717]; Hoff v. Hoff,48 Mich. 281, 12 N.W. 160; Nagel v. Nagel, 12 Mo. 53; Johns v. Johns, 29 Ga. 718; Shackett v. Shackett, 49 Vt. 195; Ribet v. Ribet, 39 Ala. 348; Adams v. Adams, 17 N.J. Eq. 324; Handy v. Handy, 124 Mass. 394. Under the law as established by these authorities, on the coming in of the verdict establishing the desertion by the husband, the court being advised by the wife's admission that she had been guilty of adultery, should have dismissed both bill and cross bill, and left the parties bound by the tie which they had severally dishonored." Redington v. Redington, 2 Colo. App. 8, 29 P. 811, at page 812.
If the plaintiff, either while she was carrying on this suit, or before she had commenced this suit, but after having been abandoned and deserted by the husband whom the court found to be "decrepit and in his dotage," commenced an adulterous intercourse on her own part with one Reuben Garcia, or any other person, which we do not decide, nor are we called upon to decide in the instant case, such adultery would be a bar to the plaintiff's suit, if discovered at any time before decree entered. It appears that the trial court should consider the same. If the testimony of defendant's witnesses be not believed by the court, that is an entirely different matter. The court should, however, permit the testimony offered by defendant to go in, and be considered in the light of what we here say.
The plaintiff's plea of surprise cannot be considered. The allegation that "plaintiff is living with one Reuben Garcia, *Page 484 an unmarried man," sufficiently apprised her of what defendant intended to prove. If plaintiff's actions with Reuben Garcia are without fault, and she has denied impropriety, she will not suffer by permitting the court to consider this question, not as immaterial, but as material, and if the defendant prove his charge of unfaithfulness to be true to the satisfaction of the trial court, such proof of adultery would bar her suit.
"`It is,' says Mr. Bishop, `a bar to any suit to dissolve a valid marriage, or to separate the parties from bed and board, that either before or after the complaint of delictum transpired the plaintiff himself did what, whether of the like offending or any other, was cause for a divorce of either sort.' 2 Bishop, Marriage, Div. Sep. § 365. This is for the obvious reason that the law forbids redress to the plaintiff who is in equal default with the defendant, and helps those who obey it, and not those who violate it. The plaintiff's conduct since defendant's alleged desertion of her is a cause for divorce, and therefore a defense to this suit. It does not matter that the defendant made default." Earle v. Earle, 43 Or. 293, 72 P. 976.
The cause will be reversed and remanded, that a new trial be had, the issues reframed, and retried in accordance with what we have here said.
It is so ordered.
SADLER, C.J., and BRICE, J., concur.