Holyoke v. Holyoke , 78 Me. 404 ( 1886 )

Haskell, J.

The General Court of Massachusetts, by act of March 16, 1786, § 3, enacted, "that divorce from bed and board may and shall be granted for the cause of extreme cruelty in either of the parties.” To this act was added by act of 1810, c. 119, two other causes for divorce, utter desertion, and the witholding of support from the wife.

The legislature of Maine, by act of February 10, 1821, Smith’s laws, vol. 1. c. 71, § 3, enacted the Massachusetts statute, " that divorce from bed and board may and shall be granted for the cause of extreme cruelty in either of the parties, or whenever any husband shall utterly desert his wife, or shall grossly, or wantonly and cruelly neglect, or refuse to provide suitable maintenance for her, being of sufficient ability thereto.” This act was not wholly repealed until 1883.

By acts of March 3, 1829, c. 440, and of March 6, 1830, c. 456, wilful desertion for five years was added to the then few existing causes for divorce a vinculo, and utter desertion was omitted from the revision of 1841 as a cause for divorce a mensa et thoro.

By act of August 7, 1849, a divorce a vinculo was authorized, "when a justice of this court, in the exercise of a sound discretion, may deem the same reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society;” and by act of 1863, c. 211, § 2, the court was required to grant a divorce for three years’ wilful desertion, without cause.

These enactments of our legislature remained in force, until repealed by the act of March 13, 1883, c. 212, which provided, that divorces a vinculo shall be decreed for (1) adultery, (2) impotence, (3) extreme cruelty, (4) utter desertion continued for three consecutive years next prior to the filing of the libel, (5) gross and confirmed habits of intoxication, (6) cruel and abusive treatment, (7) on the libel of the wife, when the husband, being of sufficient ability, grossly, or wantonly, cruelly refuses, or neglects to provide suitable maintenance for her.

A review of tbis legislation shows plainly enough, that the act of 1883 was intended to limit and restrict divorce to specified causes, and to prohibit the methods touching it, that had prevailed for more than thirty years. Extreme cruelty had been a cause for divorce a mensa et thoro in this state, and in Massachuuetts, for almost a century; and when the act of 1883 made extreme cruelty a cause for divorce, a vinculo, instead of a mensa et thoro, it may fairly be presumed that the same meaning was intended to be applied to the phrase in the new statute, that had always been adjudged to it in the old statute.

Extreme cruelty, as used in the divorce statute of 1786, was defined by the court of Massachusetts to mean, " personal violence,” Warren v. Warren, 3 Mass. 321, and that interpretation of the statute has been adhered to by the courts of that state hitherto. Hill v. Hill, 2 Mass. 150; French v. French, 4 Mass. 587; Ford v. Ford, 104 Mass. 198; Bailey v. Bailey, 97 Mass. 373; Lyster v. Lyster, 111 Mass. 327. This provision after judicial construction was enacted by the legislature of Maine in 1821, and declared to be a cause for divorce, a vinculo, by the act of 1883, without intimation that its adjudged meaning should be changed, so that extreme cruelty, as the (3d) cause for divorce, in the act of 1883, means "personal violence,” intentionally and wantonly inflicted, so serious as to endanger "life, limb, or health,” or to create reasonable apprehension of such danger.

This meaning of the (3d) cause for divorce, in the act of 1883, makes plain the intention of the Legislature, in providing the (6) cause for divorce in the act'to be cruel and abusive treatment; words of wider significance, and of more comprehensive meaning. This phrase does not necessarily imply physical violence, though it may include it. Words and deportment may work injury as deplorable as violence to the person. "I will speak daggers to her, but use none,” says Shakespeare. Temperament and character so widely differ, that conduct cruel to one, might scarcely annoy a more callous nature. Having in mind the sacred character of the marital relation, and its influence on the happiness and purity of society, as well as upon individuals, not overlooking considerations, that may not be freely discussed, each particular case must be judged of by its own particular facts and circumstances.

Divorce should not be a panacea for the infelicities of married life; if disappointment, suffering, and sorrow even be incident to that relation, they must be endured. The marriage yoke, by mutual forbearance, must be worn, even though it rides unevenly, and has become burdensome withal. Public policy requires that it should be so. Remove the allurements of divorce at pleasure, and husbands and wives, will the more zealously strive to even the burdens and vexations of life, and soften by mutual accommodation so as to enjoy their marriage relation.

Deplorable as it is, from the infirmities of human nature, cases occur where a wilful disregard of marital duty, by act or word, either works, or threatens injury, so serious, that a continuance of cohabitation in marriage cannot be permitted with safety to the personal welfare and health of the injured party. Both a sound body and a sound mind are required to constitute health. Whatever treatment is proved in each particular case to seriously impair, or to seriously threaten to impair, either, is like a withering blast, and endangers "life, limb, or health,” and constitutes the (6) cause for divorce in the act of 1883. Such is the weight of authority. Bailey v. Bailey, 97 Mass. 373; Lyster v. Lyster, 111 Mass. 327; W. v. W. 141 Mass. 495; Evans v. Evans, 1 Hagg. Con. 35; Kelly v. Kelly, 2 L. R. Prob. & Div. 31; Kennedy v. Kennedy, 73 N. Y. 369; Morris v. Morris, 14 Cal. 76; S. C. 73 Am. Dec. 615; and cases cited in note.

The case comes up on demurrer to the libel. That charges, that the libellee has for a long time refused her bed to the libellant, and has invaribly slept apart from him without cause; that she has continuously charged him with infidelity without cause, and this too, in the presence of their minor children, and sometimes in the presence of their servant: that she has sought to alienate the affections of their children from him ; that she has studiously avoided bis society; that she has lost all interest in his welfare, and ceased to perform any wifely act; that his home has thereby become so unhappy, that existence in it is insupportable, whereby his peace of mind has become so affected, as to endanger his health.

No one allegation in the libel has been held to constitute legal cruelty, save that of infidelity. That charge when falsely and maliciously made has been often held to constitute cruelty, when accompanied by acts of violence, or reasonable apprehension thereof. But few cases have been found, that hold the false charge of infidelty to be legal cruelty, and these were mostly adjudged in western states. If the legislature had intended by the act of 1883 to constitute the false charge of adultery a cause for divorce when taken by itself, it is reasonable to suppose, that it would have so named it, inasmuch as the act of adultery is declared to be such cause.

The libel charges the effect of the combined allegations to be physical injury. The demurrer is general, and does not reach a want of particularity in such allegation, so that, such effect must be considered as flowing from the preceding allegations in the libel; nor is it a conclusion, that cannot be said to necessarily, or logically flow therefrom, because it is the averment of a fact, that may, or may not result from the conduct of the libellee charged in the libel. Here the fact is averred to exist, that of conduct which seriously injures, or threatens to injure and impair physical health. The libel is sufficient, and according to the stipulation, the libellee should answer below, where it may be determined, whether libellee’s conduct, in this particular case, has so affected the libellant, as to amount to cruel and abusive treatment.

Exceptions sustained. Libel adjudged good.

Peters, C. J., WaltoN, DaNforth, Emery and Foster, JJ., concurred.