Buford v. Buford ( 1946 )

CLARK, Associate Justice

(dissenting).

I cannot agree that the trial court’s ■determination of this case should be overturned. It seems to me that in refusing to follow the trial court’s finding and conclusion “that the cause * * * has not been proven, it not appearing that the separation was voluntary”, the majority needlessly transgresses upon the discretionary prerogatives of the lower court. Our statute provides that a divorce “may be granted”, and I do not think that the facts in this case justify our saying that this discretion was abused.

I think the tendency of the majority holding is to torture the concept of mutuality by going a step beyond the proposition that the moving party under this type of statute need not be without fault. The foundation is here put down which will enable moving parties to fabricate “voluntary” separations from their own perversity. The holding appears to me to severely limit the right of the trial court to say that a plaintiffs' hands are so unclean as to preclude the award of a decree in his favor. The policy behind the statute does not require the imposition of this limitation.