Rylee v. Rylee

I dissent from the view of my brethren in this case, believing that the plea of res adjudicata would be good as to the bill amended as proposed, and that the learned chancellor in the court below properly held that the decree denying the divorce first sought to be obtained by the complainant on the ground that the defendant had been guilty of willful, continued, and obstinate desertion for the space of more than two years was a good defense to the second suit on the same ground for divorce; and the court correctly held, in my opinion, that by that decree the living apart of the wife from the husband had the sanction of the law, was justifiable in law; and that the proposed amendment to the second bill for divorce on the same ground of desertion was properly rejected; that the defendant wife was then living apart from her husband by the sanction of the solemn decree of the chancery court.

I believe that res adjudicata — conclusiveness of a judgment in divorce cases — is to be enforced under the well known principles of law as in any other judgment, and I do not believe it is safe to say that the words or actions of a husband, imputing honesty thereto, still anxious to be rid of the marital tie, anxious to be rid of the alimony and burden placed on him by the decree of the court, can set at naught the former decree of the court to the effect that the offended spouse had a right to leave his bed and board.

For instance, suppose in this case Mr. Rylee had shot his wife, and had seriously wounded her, and he had, in the first instance, filed his bill on the ground of desertion, and she had interposed her answer setting up that fact showing her right to a divorce, but, on account of religious scruples or other commendable motives, she did not desire to have a divorce, nor have her future life besmirched with whatever stigma that might be attached to being a divorced person; that she did not ask for a divorce in the cross-bill, but simply resisted his obtaining a divorce from her, and the court had decreed that under the state of facts the complainant was not entitled to a divorce. Then the husband, with the powerful incentives to be rid of his wife, and to be rid of the burden of supporting her, upon his knees, begs her to return. Can any court say when this testimony is reduced to writing that it is not in good faith? And yet would it not be shocking to say that, having been shot down by a brutal husband, she must suffer the ignominy and disgrace of having a decree go against her because she refused to forgive under such circumstances?

Take another case. Suppose a husband, with witnesses, should find his wife engaged in an act of infidelity to him, and he thereafter refused to consort with her, and, after a period of two years, she files a bill for divorce, alleging the statutory ground of desertion; he files his answer setting up her infidelity as his reason for leaving her, and sustains the allegations of his answer, and the court so decrees. Can this offending wife go to him and say:

"I am good now, and I will be good in the future; you must take me back, or in two years from now the court will grant me a divorce?"

The effect of the holding of my brethren, in my opinion, is that the spouse who left bed and board for sufficient reasons could finally by continued institutions of divorce proceedings be nagged and forced into consenting to a divorce by nonresistance.

I do not think the authorities cited in the main opinion should control us in this important matter, because they are not directly in point, and do not undertake to settle the questions here involved. The purpose of res adjudicata is to set at rest litigation, and surely it is to the interest of society as well as the purpose of the law to put an end to litigation. Under the main opinion the end of the litigation is in the mind and actions of the original, offending party rather than in the solemn decree of the court.

I do not believe that there can be willful, continued and obstinate abandonment where one lives apart from the other spouse under the sanction of a court decree. This view is sustained in the case of Weld v. Weld, 7 N.W. 267, 27 Minn. 330, wherein that court said:

"Desertion imports a willful abandonment by one party of the other, and involves a violation of marital duty and obligation on the part of the one guilty of desertion, and there is not such violation where a wife is living apart from her husband under sanction of a court decree."

An obstinate desertion cannot be predicated upon the act of a person whose action is sanctioned by the decree of a court of competent jurisdiction. The general rule is announced in 9 Ruling Case Law, p. 459, section 270, as follows:

"Judgments and decrees in divorce proceedings are within the general rule applicable to a judgment or decree that, when it is sought to be made available in subsequent proceedings between the same parties, it is conclusive and binding on them in regard to all matters shown to have been put in issue or to have been necessarily involved in the former suit and actually tried and determined in it. . . . As between the parties to the proceedings, a valid judgment or decree is conclusive of all charges set forth and facts found or which might have been found, and of defenses raised at the trial."