Schoren v. Schoren

BROWN, J. 1. The appeal in this case having been taken from the whole of the decree, we are required to try this suit anew, “upon the transcript and evidence accompanying it.” Or. L., § 556. Also see Or. L., § 405. Hence, a number of matters discussed in the appellant’s brief may not be referred to in this opinion. Entering upon the trial of this canse de novo, we are confronted with the question as to the sufficiency of the proof to warrant the court in granting a divorce. 2. In this state, a divorce may be granted for a number of causes: “5. Willful desertion for the period of one year; “6. Cruel and inhuman treatment or personal indignities rendering life burdensome.” Or. L., § 507. From the allegations contained in the counterclaim, facts are averred that tend to show desertion. — 280 — Likewise, other acts are alleged to have been committed by the wife that point to cruelty. However, the evidence offered in the trial of the cause supports the charge of desertion only. In this jurisdiction, it has been held by judicial decision that desertion is established by proof that the defendant has refused to have marital intercourse with the plaintiff: Sisemore v. Sisemore, 17 Or. 542 (21 Pac. 820); Baker v. Baker, 99 Or. 213 (195 Pac. 347). There is a division in the decisions upon this question in other jurisdictions. Under what is perhaps the majority thereof, the refusal of intercourse by one of the parties to a marriage contract does not constitute desertion. This court has followed the doctrine enunciated by Bishop, where that author wrote: “Nothing injurious to the health can be required of either party in marriage. But if, from no consideration of health, and from no other good reason, either the husband or the wife permanently, totally, and irrevocably puts an end to what is lawful in marriage and unlawful in every other relation, — to what distinguishes marriage from every other relation, — this, by the better opinion, constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other, in the capacity of servant, of master, of brother, of sister, of parent, of child, or a friend, either for pay or as a gratuity.” 1 Bishop, Marriage, Divorce and Separation, § 1676. 3. We concede, for the purpose of this case, that the evidence constitutes desertion. But, even so, Mathias Schoren is not entitled to a decree annulling the marriage status in this proceeding on the ground sought to be established by the evidence, because the statute requires allegation and proof of willful deser — 281 — tion for the period of one year. It appears from his complaint and from his testimony that the desertion commenced on May 1, 1920, and the decree of divorce was made and entered on the twenty-second day of April, 1921, “as of, on, and for the ninth day of February, 1921.” A' full year had not expired prior to the time of the filing of the suit or the entry of the decree. 4. Plaintiff does not claim that the acts testified to constitute cruel and inhuman treatment, and, by the weight of authority, the refusal of one of the parties to a marriage contract to cohabit with the other is not legal cruelty. It has often been held that desertion does not constitute cruelty: Smith v. Smith, 62 Cal. 466; Ruby v. Ruby, 29 Ind. 174; Stewart v. Stewart, 78 Me. 548 (7 Atl. 473, 57 Am. Rep. 822); Southwick v. Southwick, 97 Mass. 327 (93 Am. Dec. 95). Plaintiff’s testimony tended to prove desertion, and nothing more. “The general rule is that in the absence of proof that the health of the complaining spouse is either injured or threatened, the refusal of the other to cohabit is not legal cruelty.” 19 C. J. 56. In Pinnebad v. Pinnebad, 134 G-a. 496 (68 S. E. 73), it was held that a wife’s refusal to have sexual intercourse with her husband is not legal cruelty and is not a ground for divorce. See, also, Platt v. Platt, 38 Pa. Super. Ct. 551. However, there are cases to the contrary. See Campbell v. Campbell, 149 Mich. 147 (112 N. W. 481, 119 Am. St. Rep. 660), wherein the court held that a wife’s refusal to have sexual intercourse with her husband for a period of three years constitutes such extreme cruelty as warrants the granting of a divorce. This opinion is based upon former Michigan — 282 — cases: Menzer v. Menzer, 83 Mich. 319 (47 N. W. 219, 21 Am. St. Rep. 605); Whitaker v. Whitaker, 111 Mich. 202 (69 N. W. 1151). In the case of Sevens v. Sevens, 107 Ill. App. 141, it was held that the refusal upon the part of the wife to cohabit with her husband except for a period of about six weeks after their marriage did not constitute extreme and repeated cruelty. See, also, Hexamer v. Hexamer, 42 Pa. Super. Ct. 226. In Schoessow v. Schoessow, 83 Wis. 553 (53 N. W. 856), the court held that the refusal of a husband to have intercourse with his wife did not constitute “cruel and inhuman treatment,” particularly in the absence of any testimony tending to show mental or bodily injury resulting to the wife from the husband’s refusal. See Varner v. Varner, 35 Tex. Civ. App. 381 (80 S. W. 386). A wife’s refusal of sexual intercourse does not constitute cruelty which will justify granting him a divorce: Holyoke v. Holyoke, 3 New Eng. Rep. 169, 78 Me. 404 (6 Atl. 827); Cowles v. Cowles, 112 Mass. 298; Gordon v. Gordon, 48 Pa. 226; Eshbach v. Eshbach, 23 Pa. 343. Giving to the terms, “cruel,” “inhuman,” and “personal indignities, ” their true significance, as used in the statute cited above, we adopt the following as expressing our views: “In what respect the refusal by the wife to allow the husband access to her bed can be termed crael * * I cannot conceive; nor, having a reference to the proper meaning of terms, can I see how such treatment will render his life burdensome * * .” McGill v. McGill, 3 Pittsb. R. (Pa.) 25. 5. A decree, granting a divorce, and partitioning and directing title to real property, must be based — 283 — upon and in conformity -with issues raised by tbe pleadings: 19 C. J. 161; Bender v. Bender, 14 Or. 353 (12 Pac. 713); Weber v. Weber, 16 Or. 163 (17 Pac. 866); Senkler v. Berry, 52 Or. 212 (96 Pac. 1070); Sutton v. Sutton, 78 Or. 9 (150 Pac. 1025, 152 Pac. 271). “ ‘Tbe maxim that tbe decree must be secundum allegata, as well as secundum probata,’ says Chief Justice Marshall, in Schooner Hoppett v. The United States, 7 Cranch, 389 (3 L. Ed. 389), ‘is essential to the due administration of justice in all courts.’ * * This rule requires that a party must obtain his decree on the grounds stated in his pleading. # * ” Bender v. Bender, supra. Again, the decree must be based upon, and be in accordance with, the facts alleged in the pleadings, and should be supported by the findings of fact: 14 Oyc. 713. In the case of Senkler v. Berry, supra, it was said: “It is now the settled law of this state, that in divorce proceedings the title to real property authorized to be awarded to the successful party by Section 511, B. & 0: Comp., is not transferred by force of the statute, but by force of the decree; that to enable the court to act judicially on the subject of property in such cases, and to make a decree that shall have the effect of divesting the title to real property out of one of the parties to the suit and transferring it to another, it must appear in the pleadings, not only that such party from whom it is proposed that the title shall be taken is the owner of the property, but also of what the property consists; and that, as the decree has the effect of transferring the title, it must be one of the muniments of the title and should identify the parcel or parcels intended to be transferred or affected thereby with as great certainty as is required in ordinary conveyances: Bamford v. Bamford, 4 Or. — 284 — 30; Wetmore v. Wetmore, 5 Or. 469; Hall v. Hall, 9 Or. 452; Ross v. Ross, 21 Or. 9 (26 Pac. 1007).” 6. Neither party to this litigation describes the real property nor seeks relief by averment in any pleading on file herein, concerning the parcel of land partitioned by the decree. Christena Schoren does say, in her complaint for support, that— “The parties and their daughters live together in Dalles City, Wasco County, Oregon, at No. 320 East Second Street, in said city.” Answering his wife’s charge of nonsupport, Mathias Schoren says, in effect, that his wife left his home “that he owns and maintains at 320 East Second Street, Dalles City, Oregon.” In his counterclaim for a divorce he again avers that he owns and maintains a home at 320 East Second Street, Dalles City, and that his wife, without cause, “left the defendant’s bed and board and moved to rooms on the second floor of their home.” The only purpose of the wife’s suit was to obtain support under the provisions of the act of the legislative assembly of 1889, entitled, “An Act to provide for the support of maried women,” and codified as Sections 9749-9752, inclusive, Or. L. Mathias Schoren’s intention, in referring to their home, was to show that she had abandoned him and the home he had provided for her. Neither party intended to, nor did either, bring the parcel of real property described in the decree into the case for judicial determination by any pleading, as measured by the rule announced by the authorities hereinbefore quoted. The- absence of necessary allegations to empower the court to decree a transfer of title is not supplied by the stipulation hereinbefore referred to, nor does the stipulation aid the description. It follows that the decree of the — 285 — court below is invalid in so far as it attempts to transfer the title to real property: Perkins v. Perkins, 72 Or. 302 (143 Pac. 995); Gustin v. Gustin, 79 Or. 387 (155 Pac. 370). As hereinbefore stated, the decree granting the divorce is likewise invalid. For the reason that a dismissal of this proceeding would leave the controversy unsettled, the cause is remanded to the Circuit Court for such further action as the parties deem fit, not inconsistent with this opinion. 7. It appearing that Christena Schoren, relying upon the stipulation on file herein, entered into possession of the property hereinbefore referred to and made payments on the mortgage lien in accordance with her understanding with Mathias Schoren, for that reason she is entitled to a repayment of all sums she has advanced, together with legal interest thereon, and she is awarded a lien on that real property and entitled to the possession thereof until such sum is repaid to her. Neither party shall recover costs and disbursements in this court. Reversed and Remanded. McBride, C. J., and Bean and McCourt, JJ., concur. Affirmed. Costs Taxed. For appellant there was a brief and oral argument by Mr. George B. Wilbur For respondent there was a brief over the name of Messrs. Wilson & Bradshaw, with an oral argument by Mr. W. H. Wilson.