Cooke v. Cooke

concurring: I concur fully in the opinion of the Court by Justice Ilolce. It clearly demonstrates that under the act of 1907, as amended, the fact of separation for ten successive years, the residence of the plaintiff within this State for that period, and that there áre no living children of the marriage, are all'the facts required to be alleged or proved to support a decree for divorce a vinculo.

It is contended that the plaintiff must allege and prove that the plaintiff is the injured party. There are no such words in the act, although they are and have been in the Revisal long prior to the act of 1907.

I think those words plainly apply only to those causes of action which grow out of the personal misconduct of the parties. They would be out of place in the act of 1907, and are entirely inconsistent with its spirit and purpose. That act does not create a cause for divorce, so to speak, but only a ground for the annulment of the marriage tie.

As the opinion of the Court points out, this act differs in its language from other somewhat similar statutes, in that it uses the past tense: “and they shall have lived apart for ten successive years.”

*279It is impossible to conceive tbat after tbe expiration of so long a period tbe Legislature intended tbat tbe married life of tbe parties should be opened up and tbe dread skeleton of an unhappy past be resurrected and displayed in all its nakedness to tbe public gaze.

Gui bonof Tbe parties bave been separated so long tbat reconciliation is hopeless, and there are no children to be con--cerned. "Why expose their unhappy past? There may bave been no disgraceful wrong on tbe part of either, only irreconcilable differences.

It is plain to me tbat tbe object of tbe act is to annul tbe marriage tie, and to give such unfortunate persons an opportunity to marry again, and perchance to make a happy and congenial union, as such relation leads to virtue and unselfishness and makes better and more useful citizens.

After ten long years of separation, why inquire into whose fault it was ? Why dig up from their graves tbe buried memories of broken lives ?

It is better to let tbe dead past bury its dead, and not disturb tbe remains. Such was evidently tbe wise and humane purpose of tbe Legislature.

after stating the case:. Subject to the constitutional restriction that “it may not grant a divorce nor secure alimony in any individual case” (Const., Art. II, sec. 10), the question of divorce is a matter exclusively of legislative cognizance, and in the exercise of its powers over the subject the General Assembly of 1907 (chapter 89) added a new cause for absolute di*275yoree, as follows: “If there shall have been a separation of husband and wife, and they shall have lived separate and apart for ten successive years, and they shall have resided in this State for that period, and no children shall have been born of the marriage.”

By chapter 165, Laws 1913, this section-was amended by “striking out all after the word ‘years’ in line six (line two of Pell’s Eevisal, see. 1651, subsec. 5) and inserting, ‘and the plaintiff in the suit for divorce shall have resided in this State for that period, and no children be born of the marriage and living.’ ”

This statute, express in terms and plain of meaning, is broad enough to include, and clearly does include, any kind of separation by which the marital association is severed and which may be made 1;he subject of further judicial investigation. There is nothing in the law to indicate that the right conferred is dependent on the blame which may attach to the one party or the other, nor that the time which may be covered by a judicial decree of divorce from bed and board shall be excluded from the statutory period, nor which permits the interpretation chiefly insisted upon by defendant, that the statute only applies when there has been a separation by mutual consent of the parties. But in the language of the statute, this cause for divorce shall prevail whenever—

“1. There has been a separation of husband and wife.

“2. When they have lived apart for ten successive years.'

“3. When the plaintiff shall have resided in this State for that period.

“4. No children be born of the marriage and living.”

And the Legislature having thus formally and clearly expressed its will, the Court is not at liberty to interpolate or superimpose conditions and limitations which the statute itself does not contain. 1

This being the correct construction of the law, we are of opinion that the proceedings and judgment in the Superior Court of Wake County offered in evidence by the present defendant, and in which she was awarded a divorce from bed and *276board on tbe ground of wrongful abandonment on tbe part of plaintiff, ber busband, cannot be allowed to affect tbe course or results of tbé present trial. Not tbe decree, for it does not profess to sever tbe marital tie; tbat was not tbe question tben presented, and on tbat record tbe court bad no jurisdiction to award it. Not tbe verdict, on wbicb tbe decree was based, for tbe fact of abandonment being, as we bave seen, irrelevant to tbe present issue, tbe judicial ascertainment of sucb fact would lend it no significance. As heretofore indicated, it was chiefly urged for tbe defendant tbat tbe statute under wbicb present proceedings are instituted only applies when tbe separation has been by mutual consent of parties, citing certain decisions from tbe Wisconsin courts, Thompson v. Thompson, 53 Wis., 153; Cole v. Cole, 27 Wis., 531, and tbe definition of tbe word, “separation” appearing in Black’s Law Dictionary, etc. From a perusal of the Wisconsin decisions, it appears tbat tbe statute of tbat State contained express provision tbat tbe separation must be by mutual consent; and while tbe term “separation” has obtained tbe restricted meaning of a voluntary separation from being frequently so used in judicial proceedings, in its more usual sense it extends to and includes any kind of separation by wbicb tbe marital association is severed: “Tbe living asunder of man and 'wife.” 25 A. and E. Enc. Law, p. 432, citing Wharton and Jackson Law Dictionary. “If there shall bave been a separation' of busband and wife” is tbe language of tbe statute, and it clearly contemplates tbe primary and broader acceptation of tbe term.

Again, it was contended tbat a proceeding for divorce deals with and is designed to affect tbe status of tbe parties, and tbat tbe judgment in Wake has-established this status to be a legal separation from bed and board, and not otherwise; and further, tbat tbe time of sucb separation under and by virtue of tbat decree may not be properly counted as part of tbe statutory period. Tbe premise here is undoubtedly sound. Divorce proceedings concern chiefly tbe status of tbe parties, but this action in Wake County did not deal, and tbe court acquired bo jurisdiction to deal, with tbe marriage tie. Tbe decree only estab-*277lisbed a legal separation of tbe parties for tbe time, and it is very generally beld tbat sucb a decree does not bar tbe right to an absolute divorce wben tbe statutory conditions for sucb a divorce are properly established. Evans v. Evans, 43 Minn., 31; Edgerly v. Edgerly, 112 Mass., 53; Green v. Green, L. R. Courts, Pro. Div., 121; Mason v. Mason, L. R., Pro. Div., 121. True, in some of these cases it is beld tbat sucb divorce can only be obtained on facts subsequent to tbe former decree, and tbat as to all former facts tbe parties are concluded. But this limitation should only prevail wben sucb former facts have legal bearing on tbe second inquiry, and does not affect tbe case presented here, where, as we have seen, neither tbe decree itself nor tbe fact on which it is predicated is relevant to tbe issue.

It is suggested, in this connection, tbat decrees for absolute divorce in a proceeding of this character will likely and at times necessarily bring about perplexing conflicts with tbe terms and conditions imposed by former decrees of divorce from bed and board, and more particularly in reference to allowances for alimony and certain proprietary rights still existent in cases of sucb decrees.

We do not now see tbat any sucb conflicts will necessarily arise; but, if they do, tbe relief sought and tbe changes required, in tbe law may not be made here. And so, as to tbe time covered by these decrees, tbe law, as we have seen, makes no such exception, and tbe courts are not at liberty to add to tbe statute what tbe Legislature has not seen fit to provide.'

And tbe same answer may be made to another position submitted for defendant: tbat tbe plaintiff wrongfully abandoned defendant, and should not be allowed to take advantage of conditions brought about by bis own misconduct. This general principle has been recognized in some of our former decisions, but, in tbe recent case of Ellett v. Ellett, 157 N. C., 161, it was beld to be unsound where, as in tbe present case, tbe Legislature has conferred tbe right of absolute divorce on tbe existence of certain specific facts or conditions, and it appears from tbe provisions of tbe law tbat tbe incipient blame of tbe one party or tbe other is not to affect the question.

*278The public policy wbicb finds expression in tbis statute rests on the assumption that it is not well for persons in these circumstances to be absolutely deprived of all right to marry again; and where it has been sufficiently demonstrated by ten years separation that a reconciliation will not occur, and there are no living children to be affected, the lawmakers have deemed it.expedient and right to establish this as a cause for absolute divorce. They have not seen fit to make any exception in favor of the injured party nor to exclude the time covered by decree for a limited divorce; and, this being true, we must administer the law as we find it, and if it proves to be unwise in policy or undesirable in results, it must be changed by the legislative department, which is given full and exclusive cognizance of the subject.

Reversed.

dissenting: It is always a matter for regret when I am called upon, even by my sense of duty and a strong desire tbat justice may always prevail, to differ with my brethren. This is a very important question, and tbe result which has been reached by tbe majority, if in accordance with tbe law; and compelled by its edict, as supposed, is not in harmony with right and equity.

I think tbe opinion of tbe Court is erroneous in several respects :

1. Tbe Legislature, as I will presently show, and try to demonstrate, expressly provided tbat a suit of this kind can be brought only by tbe party injured.

2. If this were not so, tbe amendment of 1907 should be confined strictly to separation of husband and wife, and not extended to those who bave been previously divorced.

*2803. The time elapsing since tbe Wake decree of divorce from bed and board should not be counted, in which event, ten years had not, expired at the commencement of this action.

First. The-act of 1907, being chapter 89, amends, and purports on its face to amend, section 1561 of the Revisal, and Judge Pell, in his annotated edition, has given this enactment its proper place in that section. (Pell’s Rev., sec. 1561, sub-sec. 5). Section 1561, in its first paragraph, and before enumerating the causes for divorce a vinculo', each being placed separately in the five succeeding subdivisions, provides as follows : “Marriage may be dissolved and the parties thereto divorced from the bond of matrimony on application of the party .injured, made as by law provided, in the following cases.” Among the “following cases” occurs the cause for divorce given by the act of 1907, it being in the fifth subsection. So that if interpreted according to its setting in that section, and controlled and qualified by what precedes and is applicable to all the causes alike, the provision of the act of 1907 is subject to the restriction contained in the first clause- of the section, which requires that the application for the dissolution of the marriage and the divorce of the parties shall be made only by “the party injured.”

The act of 1907 provides that “Revisal, sec. 1561, be amended by adding thereto the following,” and then comes the new enactment as to ten years separation. The law in regard to such an amendment and the future construction of the section thus amended has been conclusively settled by the highest authority. Cyc., vol. 36, p. 1165, says that an amended act is to be construed “as if the original statute had been repealed, and a new and independent act, in the amended.form, had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption of the amendment, it is the same as if the statute had been originally enacted in its amended form.” We find this familiar doctrine stated explicitly and concisely in Black’s Inter, of Laws, p. 356 et seq., secs. 130, 132. He says: “(1) An original act and an amendment to it should be read and construed as one act. (2) An amended statute is to *281be construed as if it bad read from tbe beginning as it does witb tbe amendments added to it or incorporated in it. (3) An amendatory statute is to^be confined, in its scope and operation, to tbe limits of tbe act to wbieb it is an amendment, unless tbe intention of tbe Legislature to give it a wider field of operation is manifest.” And again: “4. In tbe construction of a statute, in order to determine tbe true intention of tbe Legislature, tbe particular clauses and phrases should not be studied as detached' and isolated expressions, but tbe whole and every part of tbe statute must be considered in fixing tbe meaning of any of its parts.” Page 166, see. 74.

There are many cases sustaining tbe validity and universality of these rules of interpretation. Dimpfel v. Beam, 41 Col., 25; McGuire v. R. R., 131 Iowa, 340; People v. R. R., 145 Mich., 140; Kamerick v. Castleman, 21 Mo. App., 587; Campbell v. Youngson, 80 Neb., 322; Cortesy v. Territory, 7 N. M., 89; McKibbon v. Lester, 9 Ohio St., 627; Holbrook v. Nichol, 36 Ill., 161; S. v. Express Co., 171 Ind., 138; Epperson v. Insurance Co., 90 Mo. App., 432; Farrell v. State, 54 N. J. L., 421. Some of these decisions have applied tbe principle concretely to cases just like this one. “As to subsequent events, an amendment to a statute is considered as a part of tbe original act.” S. v. Express Co., supra. “An amendment of a statute operates precisely as though tbe subject-matter of tbe amendment bad been originally embodied in tbe statute amended, as regards any action bad after its adoption.” Holbrook v. Nichol, supra. “A statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if tbe amendment bad always been there; and tbe amendment itself so thoroughly becomes a part of tbe original statute that it must be construed, in view of ,the original statute, as it stands after tbe amendments are introduced.” Farrell v. State, supra. “An amendment to a stat'ute will generally be considered as a part of tbe original act, and tbe entire act as amended be given tbe construction which would be given it if tbe amendment were a part of tbe original act.” People v. R. R., supra. Tbe case of McKibbon v. Lester, supra, bolds that where there is an amendment of an act having *282originally a clause of restriction or limitation, the matter introduced into it by the amendment is, of course, subject to the same restriction or qualification as the other parts of the act.

The clear result from these authorities is that the fifth clause, as shown in Pell’s Revisal, sec. 1561, it being the act of 1907, is subject to the qualification, which pervades the entire section, namely, that the action for divorce a vinculo must be brought by the injured party; and this is in consonance with right and justice. The Legislature had no idea of changing the rulé heretofore settled by this Court (Tew v. Tew, 80 N. C., 316; Moss v. Moss, 24 N. C., 55; Setzer v. Setzer, 128 N. C., 170), and give an action to the one who may have been flagrantly in fault; and therefore it did not pass a separate and independent act allowing a divorce after ten years of separation (if even that would have changed the result), but adopted it as an amendment to the original statute, so that it would be subject to its beneficent restrictions and work no .wrong or oppression to the faithful and blameless spouse.

But if there could be any doubt as to the correct meaning of the. act, we are admonished by other rules of statutory interpretation that the law should be so construed as to prevent “absurd or unjust consequences.” With regard to a doubtful or ambiguous statute, the presumption should always be indulged that the legislative intention was to enact “a valid, sensible, and just law, and one which should change the prior law no further than may be necessary to effectuate the specific purpose of the act in question, and the construction should be in harmony with this assumption.” Black Int. of Laws, secs. 41, 46, 47. There is also a presumption against an intention to cause a private- hardship (section 47), or to enact contrary to a sound public policy and the interests of public morality, or to make any changes in the present law except only to the extent specified in the amendment- (sections 47, 50, 52). There is also a presumption that the Legislature did not intend that the law should.be inconsistent or discriminatory, but that it should be consistent' in all its provisions, and that the amendment should be in harmony with the preexisting body of the law (section 44).

*283In tbe construction of the statute, as amended, and in order to determine the real intention of the Legislature, and its true meaning,-the statute should be construed as a whole, each part being given its proper function, and its bearing upon the entire act or section, if such it be. Black, sec. .74. In applying these principles to the facts of this case, we must not forget that the provision of 1907 as to separation is not an independent act, to be construed and to operate as such, but it is an amendment to section 1561 of the Revisal, and is so expressly declared to be. This was purposely done, so that the just rule of the law, giving the action to the party injured, might prevail in this case as in others of a like kind. What sound reason for restricting the right of action for the other four causes to the injured party that does not equally apply to the fifth, which is created by the act of 1907? None at all. It makes no difference what the nature of the offense may be upon which the application is based, the cause of action should, in good morals and in simple justice, belong only to the party who has been wronged. Applying these rules, or any of them, to the statute, and it should read, that a marriage may be dissolved and divorce granted in the following five cases, provided the “application is made by the party injured.” This is what the Legislature has plainly said; it is what is manifestly meant, and it is in harmony with prior decisions of this Court and with the eternal principle of right and equity.

Unless we are compelled to do so by inevitable interpretation, we should not give this cause of action to one who has done his wife so grave a .wrong, of which he has been convicted by a court of justice and a partial divorce granted therefor. The record imports verity, and it finds that he “unlawfully, unjustly, and cruelly abandoned his wife” — deserted her without cause and refused to support her. He caused the separation himself, and now asks that it be made permanent. We shrink from the contemplation of such injustice, even if his case is accidentally good in law, and turn instinctively to inquire if such it can be. But happily, for the sake of offended justice, it is found that the statute, in plain terms, as I think, bars his right to any relief. *284Tbe law is still strong to protect this woman against his iniquitous pursuits o£ her, taking- advantage of his own wrong, and drives him back at the very door of the temple.

"We think the meaning and intention of the Legislature are clearly expressed in the way I have indicated; but if not, and the act is ambiguous, the Court should resort to the established rule of presumption, that the lawmaking body never intends to do injustice or to make unfair discrimination among those equally entitled to its favorable consideration, and the courts should adopt that construction which will avoid any such result. Black Inter, of Law, p. 100, sec. 46. And for this purpose it has recourse to the original statute, which is amended, and considers the amendment with reference to its general scope and purpose. Black, p. 356, sec. 130.

Second. But he should go out of court on another ground. The lexicographers define a separation as a cessation of cohabitation by husband and wife by the act of the parties or one of them (Black’s Diet., p. 1080), and not by the act of the law, which is technically and legally considered as a divorce. Black, at p. 382, defines divorce as “the legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation or suspending its effects so far as concerns the cohabitation of the parties.” And this is the popular notion. Besides; the statute itself makes a clear distinction between the two — divorce and separation. Revisal, secs. 2110, 2111, 2116. “Words found in the original act will be presumed to be used in the same sense in the amendment.” 36 Oyc., 1165. The two are really placed in separate chapters. Certain rights are incident to a divorce which do not pertain to a voluntary separation or one brought about by the wrongful act of either spouse.

If “separation” includes divorce a mensa, and stands upon the same footing, it is a strange inconsistency that the statute allows the complaint in a divorce a mensa to be made only by the injured party, and it does not require it in this ease.

But whatever may be said about it, there is plenty of room for a construction that will prevent such an anomaly, if not *285enormity, as to permit this plaintiff to take advantage of bis own willful wrong in causing tbe separation and convert it into a good and lawful cause of action. Ve believe tbe law is plainly tbe other way, on its face, and by every pertinent and well settled rule of statutory interpretation. How utterly contrary to our ideas of judicial procedure, that tbe law should decree a thing to be lawful, in favor of one of tbe parties, and then make that same thing an instrument in tbe bands of tbe wrongdoer to undo its own work and permit him to use it for bis own gain and advantage, to tbe oppression of tbe other party! That is turning a wrong into a right, and as to her, “it is bolding tbe promise to tbe ear and breaking it to tbe hope.”

Third. Tbe time which elapsed under tbe operation of tbe divorce decree should not be counted. We have shown what a strange anomaly it would produce; but apart from this consideration, tbe very language of tbe statute shows that it was not intended to be applied in such cases, and only to those where tbe separation has been caused by a nonjudicial act. It is true that although a partial divorce has been granted, tbe injured party may afterwards obtain an absolute divorce or one a vin-culo,,, for sufficient cause. In tbe cases cited by tbe Court in its opinion, tbe decree was given only to tbe injured party, and be was not allowed to set up any cause involved in tbe first suit. One of tbe allegations in tbe former suit by tbe defendant against tbe plaintiff in Wake Superior Court was tbe desertion and separation >of tbe husband and bis cruel treatment’of her. This passed into tbe issue and tbe decree.

Ellett v. Ellett, 157 N. C., 161, is easily distinguished from this case, and rests “upon a peculiar ground which does not underlie it. Here tbe wife has done no such positive wrong as was shown to have been committed by tbe wife in Ellett’s case. She is perfectly innocent of any wrongdoing, and is altogether tbe aggrieved party. It was only held in ETlett’s case that tbe previous conduct in banishing bis wife from their home did not justify her in afterwards committing adultery, no more than it would be justifiable for a widow or a single woman to do so. In regard to tbe two offenses, this Court held that of tbe bus-*286baud merely trivial in comparison with, the graver and more serious offense of his wife, which was not excused, if palliated, by his act, the evil consequences of which, it was said, could largely be prevented or offset by requiring the husband to provide for her maintenance and support under the statute, and by order of the court, if she cared to apply for it, relying upon the case of Steele v. Steele, 104 N. C., 636. It is not necessary to inquire whether this is a valid reason, for suffice it to say that neither those facts, the reason, nor the decision have any relevancy to this case. The defendant has done nothing contrary to her duty and obligation as a wife, and her husband has, by the decree of the court, been found recreant, to his duty and false to his marriage vow. The two eases, as we see, are .widely separated in principle by their distinctive facts. Ellett v. Ellett, therefore, is not in the way, and aside from the plain meaning of the statute and its positive requirement, the plaintiff should be required, under our decisions, to show himself blameless, or, at least, that he is the wronged and not-the guilty party.

There can be no question, it seems to me, that plaintiff is estopped by the Wake decree. So far as the record shows, the issue as to the abandonment of his wife in August, 1900, was fairly raised by the pleadings in that case, and fairly submitted to the jury, and they found against him. It was suggested that the court refused to hear his plea of former suit pending unless he first Withdrew his answer to the merits. That does not appear; but if it-did, there would be no difference wrought by it in the result, for he did not withdraw it, and he then had a fair ojjportunity to present bis defense upon the issues submitted. We must assume conclusively that the trial was conducted regularly and according to the usual course and practice of the court, in the absence of any finding in the record to the contrary or any motion or any proceeding to vacate the judgment. It cannot be impeached collaterally. “The general rule is that the judgment or decree of a court having general jurisdiction over the subject-matter, subsisting unreversed, must be respected, and in collateral suits sustains all things done under it, notwith*287standing any irregularity in tbe course of tbe proceedings or error in tbe decision.” Yarborough v. Moore, 151 N. C., 116; Millsaps v. Estes, 137 N. C., 536; Doyle v. Brown, 72 N. C., 393; Williams v. Harrington, 33 N. C., 616; Harrison v. Hargrove, 120 N. C., 96; Rackley v. Roberts, 147 N. C., 201; McDonald v. Hoffman, 153 N. C., 254. It is established, by tbe estoppel of tbe judgment or tbe principle of res judicata, tbat plaintiff is not tbe injured party, but tbe one wbo caused all tbe trouble, and be should not be allowed to profit by bis wrongdoing. This decision will be a precedent for any evil-minded husband to desert or abandon bis wife for tbe very purpose of benefiting by tbe statute after ten years of bis wrongful 1 separation. Tbe Legislature never intended any such result, or contemplated tbe spectacle of a man reaping tbe benefit and reward of bis own betrayal, and cruel treatment, of bis wife with tbe sanction of law.

Why should tbe law favor tbe husband, wbo deliberately and cruelly (as tbe jury found) abandons bis wife, without just cause or excuse, and leave her without support, in preference to one wbo commits any other offense against bis wife, or violates bis marital duty, and for which she is entitled to an absolute divorce? There is no reason for any such distinction, and tbe Legislature adopted tbe form of an amendment to section 1561 to prevent it, and to bring all faithless husbands under tbe same rule of exclusion from tbe courts, by requiring tba-fi a suit may be brought only by him or her wbo has been wronged.