Saville v. Saville

McCOURT, J. 1. Condonation is the forgiveness of a matrimonial offense upon condition that the offense will not be repeated, and that the offender will thereafter treat the injured spouse with conjugal kindness : Eggerth v. Eggerth, 15 Or. 626 (16 Pac. 650) ; 2 Bishop on Marriage, Divorce and Separation (5ed.), §§ 269, 308; 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6 ed.), § 1690; 1 Nelson on Divorce and Separation, § 450; 19 Corpus Juris, 83. 2. Where it is clearly shown by the evidence that a matrimonial offense has been condoned, the court may deny a decree of divorce, although defendant has not pleaded the condonation: Hill v. Hill, 24 Or. 416 (33 Pac. 809). 3. in the absence of a statute controlling the matter, condonation of acts of cruelty relied upon to obtain a divorce will sometimes be implied from the continuance of marital cohabitation after the acts were [122] committed: 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6 ed.), §§1695, 1701; Shirey v. Shirey, 87 Ark. 175 (112 S. W. 369); but even in those cases, since condonation must be a voluntary act, continued cohabitation will not be construed into forgiveness, where through fear or the circumstances surrounding her, the injured wife cannot leave at once: Hickman v. Hickman, 188 Iowa, 697 (176 N. W. 698, 14 A. L. R. 929, and note, where a large number of cases to the foregoing effect are collected). 4. In this state condonation of a matrimonial of-' fense, except adultery, cannot be established by implication from the voluntary cohabitation of the parties, after knowledge thereof. To constitute a bar for any of the causes of divorce named in the statute, except adultery, the offense must have been expressly forgiven. The statute, Section 510, Or. L., provides: “In a suit for the dissolution of the marriage contract on account of adultery, the defendant may admit the adultery, and show in bar of the suit, * * that the act has been expressly forgiven, or impliedly so, by the voluntary cohabitation of the parties after knowledge thereof.” Subdivision 4 of the same section provides that when the suit is brought upon the ground of cruel and inhuman treatment, “the defendant may admit the charge, and show in bar of the suit that the act * * has been expressly forgiven.” The California statute provides that in cases of divorce upon the ground of cruelty: “Cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an.express agreement to condone.” [123] It is there held that express forgiveness is essential to establish condonation constituting a bar to a divorce for cruelty, and that the same will not be implied from continuance of cohabitation: Whinnery v. Whinnery, 21 Cal. App. 59 (130 Pac. 1065); Hunter v. Hunter, 132 Cal. 473 (64 Pac. 772); Morton v. Morton, 117 Cal. 443 (49 Pac. 557); Smith v. Smith, 119 Cal. 183 (48 Pac. 730); Johnson v. Johnson, 4 Cal. Unrep. 446 (35 Pac. 637). 5. The defendant did not allege, or attempt to prove, that plaintiff had expressly forgiven the acts of cruel and inhuman treatment, which he admitted he inflicted upon her; he relied entirely upon forgiveness which he urged the court to imply from the fact of marital cohabitation continuing for some time after the acts of cruelty were committed. This the court is not permitted to do in view of the statute, and accordingly plaintiff was not barred from obtaining a decree of divorce based- on the acts claimed by defendant to have been condoned. Defendant in the court below and here rested his claim to defeat plaintiff’s suit, upon the defense of condonation; he recognized that by assaulting and beating plaintiff repeatedly, he furnished her with adequate grounds for divorce: Olson v. Olson, 100 Or. 171 (196 Pac. 829). The defendant having failed to sustain his defense of condonation, and it appearing that plaintiff’s charge of cruel and inhuman treatment is supported by the evidence and admitted by defendant, the decree of the Circuit Court is affirmed. Affirmed. Burnett, C. J., and Bean and Brown, JJ., concur.